• October 26, 2014

Presumed Guilty

College men accused of rape say the scales are tipped against them

Presumed Guilty 1

Brett Flashnick for The Chronicle

Joshua Strange’s former girlfriend accused him of forcing her to have sex after they had been drinking. Despite his denials, he was expelled from Auburn U., and he moved home, graduating from the U. of South Carolina-Upstate.

Caleb Warner drives a delivery truck and may never finish college. Joshua Strange moved home and enrolled at a branch campus of the University of South Carolina after he was kicked out of Auburn University, his dream college. Zachary Hunt lost a $30,000 scholarship and his place on Denison University’s football team.

All three young men were expelled after their colleges found them responsible for sexual assault. A national campaign against what some have called a rape culture on college campuses has brought attention to sexual violence, and to victims—typically women—who have long described being ignored. But others think the movement has gone too far, labeling some innocent students as rapists.

Many young men who feel unfairly accused recognize that campus sexual assault is a serious issue, and that some students are truly responsible. But in the current climate, they say, the gender-equity law known as Title IX is allowing women to allege rape after alcohol-fueled sexual encounters in which the facts are often murky. An increasing number of undergraduate men are now fighting back—with the help of parents, lawyers, and a new national advocacy group.

"Fundamental fairness has become a pawn in the gender wars," says Judith E. Grossman, a mother who helped found the group, Families Advocating for Campus Equality. Her son, who graduated this spring from a small liberal-arts college, was accused last January by a former girlfriend of "nonconsensual sex." Ms. Grossman wrote to administrators and hired a lawyer; after a campus hearing, the college found her son not responsible.

"I am a feminist, and I believe one rape is one too many," says Ms. Grossman, who would not name her son or the institution. "But in their rush to judgment, colleges are now substituting one class of victims for another."

Antirape advocates hardly see it that way. Now that colleges are paying more attention to sexual assault, they say—investigating reports and punishing offenders—some students found responsible are bound to cry foul. "It’s a little hard to believe that we can go for generations where rape victims are ignored, disbelieved, and disregarded, and now the battle cry is out that we’re ruining the lives of untold numbers of innocent young men," says David Lisak, a clinical psychologist who consults with colleges on rape cases. People accused of assault, he says, frequently contend that they're innocent.

Colleges Face Scrutiny on Sexual Assault

Many students accused describe feeling much like their classmates who say colleges have mishandled their reports of being assaulted. Alleged victims have charged colleges with minimizing their experiences and trauma, even blaming them for the incidents. Alleged perpetrators, meanwhile, also feel betrayed and mistreated: presumed guilty, they say, by campus administrators so concerned with protecting victims that due process falls away. Some men found responsible lose weight, suffer depression, and watch their college and career plans crumble.

Brett Flashnick for The Chronicle

After being expelled from Auburn U., Joshua Strange was "devastated and crushed," he says. Now he advises other students accused of rape.

Mr. Strange, expelled from Auburn in 2012, says he felt branded with a scarlet R even before the university decided his case. "I stood in line to eat once between classes and heard people talking about me, saying, ‘Can you believe this guy Josh raped a girl?’ " he recalls. His girlfriend had accused him of forcing her to have sex, a charge he disputes. Through the new national group, he has become an informal adviser to other students accused of rape. "I lost who I was," he says. "I lost my way for awhile. I was devastated and crushed."

Statistics paint a scary picture for college women. One in five is sexually assaulted, according to a 2007 study by the National Institute of Justice, although some observers have questioned whether the incidence is really that high. The number of sex crimes reported by colleges rose by 52 percent between 2001 and 2011, to 3,300, another federal study found. Headlines have multiplied: In a May cover story, Time magazine called campus sexual assault a "crisis," pronouncing colleges "hazardous places" for women.

Colleges face increasing pressure from survivors and the federal government to improve the campus climate. Title IX compels them to resolve reports of rape whether or not an alleged victim reports the incident to the police. If a college fails to handle cases promptly and fairly, the U.S. Department of Education can find that it has created a hostile learning environment. The department is now investigating 76 colleges for possible violations of Title IX related to alleged sexual violence. In recent months it has announced a few harsh settlements requiring institutions to strengthen their policies.

Laura Dunn, a law student who started an advocacy group called SurvJustice, has advised some Washington officials pushing colleges to be more responsive to victims. "Women are very intelligent—they know when they’ve been harmed," says Ms. Dunn, who has shared her own story of being raped 10 years ago as a freshman at the University of Wisconsin at Madison by two men on the crew team. (The university determined that they were not responsible.) "There is an unfortunate, aggressive sexual norm related to masculinity in our culture," she says. "We are asserting our rights now in the face of aggressive, predatory sexuality."

A network of self-described survivors and allies has sprouted up to encourage students to report campus assaults and file federal complaints and lawsuits if colleges don't take the reports seriously.

But the crackdown, say young men and their lawyers, has come at a cost. Since the Education Department issued a "Dear Colleague" letter in 2011, admonishing colleges to process students’ reports of assault uniformly—with the goals of investigating all cases and preventing new ones—many campus officials believe the underlying message is that they should side with victims, says Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consulting and law firm. The department’s letter also emphasized that colleges should determine responsibility using the "more likely than not" standard of proof. That’s lower than the "beyond a reasonable doubt" standard required for a criminal conviction.

At a national summit on sexual assault held at Dartmouth College in July, a participant asked Catherine E. Lhamon, who leads the Education Department’s Office for Civil Rights, if colleges could safely assume that it was urging them to tip the scales in favor of accusers. Ms. Lhamon said no, apologized if her office had given that impression, and said she wanted "all students to have a fair and appropriate process."

When a student reports a sexual assault to a campus administrator, the college typically conducts an investigation to determine whether to pursue the case. If it does, a panel of faculty and staff members usually hears from both parties, then issues a finding and in some cases a penalty.

Gina M. Smith, a lawyer who advises colleges on sexual misconduct and Title IX, says the system tends to work well. "Colleges and universities have long been in the business of student discipline," she says. "They remain committed to providing fair, impartial, and informed processes that produce reliable results."

Others who observe that process believe something has gone wrong. The burden of proof, say several lawyers representing students who have been found responsible for sexual assault, is too low, letting colleges rule against alleged perpetrators on very slim, sometimes conflicting evidence. (Colleges use the term "responsible" rather than "guilty" to distinguish the findings of their proceedings from those of the criminal system.)

Some students are appealing campus findings. Others are filing lawsuits—against Columbia, Denison, and Duke Universities and the University of Massachusetts at Amherst, among other institutions. And several young men have lodged Title IX complaints of their own, arguing that in a rush to judgment, their colleges discriminated against them on the basis of their gender.

In the past few months, Mr. Sokolow says he has gotten nearly 60 calls from accused students and their parents—a steep rise from just a year ago. He takes the cases he feels are the strongest (for now, a dozen). "The last thing I want to do," he says, "is represent a rapist."

Of the cases Mr. Sokolow has accepted, at various stages of resolution, three young men have had charges against them dismissed following campus investigations or hearings. Three others whose colleges had found them responsible had those findings reversed on appeal, and two who were found responsible reached settlements with their institutions. The rest of the cases are pending.

Andrew T. Miltenberg, a lawyer based in New York City, says he has been getting about 15 calls a month this year, including a recent one from a father in South Korea whose son had been expelled by an elite American institution. Mr. Miltenberg and a colleague have filed five lawsuits so far this year claiming discrimination under Title IX. They are in the process of drafting several others and have consulted on almost a dozen campus appeals.

What many of the accused want most is for their college records not to reflect conduct violations, says Eric Rosenberg, a lawyer in Ohio who represented three young men who were expelled by Denison in reaching confidential settlements with the institution. "If this boy wants to become a lawyer or a doctor, this has the potential to rear its ugly head down the road, like Chappaquiddick," he says.

In most of the cases they accept, plaintiffs’ lawyers say, the two students involved knew each other before the sexual encounter. Some were in relationships, but most were just acquaintances who shared a group of friends—and maybe had had sex before. Typically, both were drinking, often to excess, and what actually happened, say lawyers for many of the young men, is an ambiguous he-said, she-said muddle of events.

In Mr. Strange's case, at Auburn, he and his girlfriend had been out at a bar celebrating a friend’s acceptance to law school. They got drunk, he says, went back to his apartment—where the girlfriend had been staying for a couple of weeks—and in the middle of the night began having sex. Mr. Strange insists that nothing out of the ordinary had happened when suddenly his girlfriend "freaked out."

In a hearing at Auburn, however, the young woman said Mr. Strange had begun sodomizing her, and when she asked him to stop, he wouldn't. Mr. Strange denies intentionally attempting to have anal sex and says he stopped physical contact as soon as she objected.

Occidental College expelled a freshman last February after finding that he had had sex with a female classmate too drunk to consent. The woman said she remembered performing oral sex on him but didn't recall having intercourse. He has sued the college, arguing that she sent text messages telling her friends she was about to have sex and asking him if he had a condom.

Officials at Auburn and at Occidental declined to comment on the cases.

Colleges must judge whether students were incapacitated, or just intoxicated, and lawyers say they sometimes get it wrong.

Under current interpretations of colleges’ legal responsibilities, if a female student alleges sexual assault by a male student after heavy drinking, he may be suspended or expelled, even if she appeared to be a willing participant and never said no. That is because in heterosexual cases, colleges typically see the male student as the one physically able to initiate sex, and therefore responsible for gaining the woman’s consent. If the woman was not just intoxicated but incapacitated, then colleges frequently find that she was incapable of consenting: The male student should have realized she was too drunk and refrained from sex.

The problem with that reasoning, say lawyers representing those accused, is that colleges often apply it in cases in which both parties were drunk but not incapacitated. "If the university poorly distinguishes between being merely intoxicated and being incapacitated—and many do—it’s discriminatory to charge only the man," says Mr. Sokolow. But that is what often happens, he says.

Colleges are essentially expecting men to judge women’s ability to consent to sex, says Mr. Miltenberg, another of the lawyers. "As much as everyone wants to appear forward-thinking in terms of sexuality, colleges are applying an antiquated, chauvinistic, and paternalistic standard," he says. "In every one of these situations, the male is in no better shape, physically, emotionally, or maturity-wise, to make any of these decisions than the girl is."

But people who advise colleges on sexual assault say they make decisions on the basis of individual cases, not stereotypes. "These cases turn on the application of well-written and informed policies," says Ms. Smith, "and robust evaluations of all the facts and circumstances."

Brett Flashnick for The Chronicle

Caleb Warner was expelled from the U. of North Dakota after a female student said he had raped her. Later the police charged her with filing a false report, and the university revoked his expulsion. Rather than re-enroll, however, he kept his job as a delivery driver.

Stories reveal different scenarios for campus sexual assault. Sometimes aggressive men, maybe acting in groups, feel entitled to take things as far as they want—even when their partners protest or are incoherent. What lawyers for accused perpetrators describe, though, are situations in which a young man believes that a woman is describing a mutually drunken hookup as rape.

"Colleges, too often for fear of their reputations or their liability under Title IX, set up these processes where they define sexual assault poorly," says Matt Kaiser, a lawyer in Washington whose firm has represented about a dozen men accused of assault on campuses. "The student himself becomes a scapegoat for that college looking bad or getting an investigation from the Department of Education."

That is exactly what "John Doe," a sophomore astronomy major at UMass, says happened to him this past academic year. In the fall, he met a female classmate at a party and ended up back in her dorm room. "She invited me there," says Mr. Doe, the name he used in a lawsuit he filed in August against the university. Both students had been drinking but weren’t drunk, he told The Chronicle, and nothing about their sexual encounter was surprising, he says. "She said yes to everything I asked, and immediately prior to having sex, she said, ‘Put on a condom.’ At one point I had stopped, and she asked me why, and I said, ‘I’m sorry. I’m a little nervous.’ And she said, ‘OK, don’t worry about it.’ "

The next day, says Mr. Doe, he sent the woman a text message, asking her if what had happened was a one-night stand or the beginning of a relationship. Her answer: a one-night stand. Later that day, he says, he got a call from the dean’s office: The young woman was alleging that Mr. Doe had sexually assaulted her.

Under federal rules, colleges must take "interim measures" to protect students who report rape by keeping alleged perpetrators away from them while a case is being investigated. "They told me I had six hours to get out of my dorm and find somewhere else to live," says Mr. Doe. "They treated me with such hostility, like I was already a criminal."

UMass quickly found him responsible, ruling that his partner had been too drunk to consent to sex, he says. Within three months, he had been expelled.

"They undermined all of the hard work I had done. I had been making friends and networking," says Mr. Doe. "It was humiliating and degrading." Just before he was expelled, he transferred to a different college—"the back-up to my back-up schools," he says—and now commutes there from home. By throwing him out, his lawsuit argues, UMass violated his right to an education free of gender discrimination under Title IX.

UMass declined to comment on the suit but issued a written statement. "The university does take allegations of sexual assault seriously and conducts reviews through a detailed procedure specified in the Code of Student Conduct," it says. "Due process for all parties involved is a central aspect of the code."

Ann Arbor Miller for The Chronicle

Sherry Warner Seefeld helped start Families Advocating for Campus Equality, to speak out for those who, like her son Caleb, feel they were falsely accused of sexual assault.

Mr. Doe’s story is familiar to mothers like Ms. Grossman, Alison Strange—Joshua’s mother—and Sherry Warner Seefeld, who together started the group Families Advocating for Campus Equality. Ms. Warner Seefeld’s son Caleb was expelled from the University of North Dakota in 2010 after a female student alleged that he had raped her. (He has maintained that the sex was consensual.) Following his expulsion, Ms. Warner Seefeld says she "went into mom mode" to defend her son, writing to politicians and to the university’s president, threatening "a national PR campaign."

The case led the local police to charge the young woman with filing a false report. And although Mr. Warner was readmitted to North Dakota in 2011 with the penalties against him revoked—including the requirement that he attend sensitivity training regarding sexual assault—he decided not to return, says Ms. Warner Seefeld. "He got a driver’s job, he is making excellent money, and he is really too traumatized to attempt college again," she says. He declined to be interviewed for this article. A spokesman for North Dakota also would not comment.

Tiffany Hunt’s son Zachary was expelled by Denison in 2013, after what he has described as walking a female classmate who had been drinking heavily at a party back to her dorm room. She charged him with sexual assault. But Mr. Hunt has said they never had any sexual contact, and he passed a polygraph test, says his lawyer, Mr. Rosenberg.

"Can you imagine what it feels like to a young boy to be accused of such a heinous crime?" asks Ms. Hunt. "You trust the college administration to take care of them, just like the parent whose daughter is assaulted, and you feel like that trust was broken."

Mr. Hunt declined interview requests. He lost 25 pounds in the months following the allegation against him, his mother says. He is now volunteering at a ministry and trying to figure out his next step.

Under scrutiny, colleges are struggling to balance the need to protect victims and punish perpetrators with the need to guarantee a fair process to students accused of assault. And the cases keep coming.

The mothers hope their new nonprofit group can represent the voices of the accused in the national conversation. Some spoke this spring to a committee appointed by the Education Department to draft regulations under the Campus Sexual Violence Elimination Act. As Congress considers legislation intended to make colleges more responsive to reports of assault, the mothers want to get involved. They also want to support parents who find themselves in the same position they did. "It’s a lonely road," says Ms. Warner Seefeld.

On a trip to Washington this summer as part of her work as a history teacher in North Dakota, she visited the National Archives. Her first stop: to examine the original copy of Title IX. She wanted to see for herself: Was the law just for women, or for men, too?

"It says equal opportunity for all in education," Ms. Warner Seefeld says. "It wasn’t created just for women."

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