The Obama administration has been trying to crack down on campus sexual assaults by lowering the standard of evidence needed by university and college panels to convict suspects, but the policy change has provoked a backlash as accused students fight back with lawsuits.
Instead of “beyond a reasonable doubt,” as practiced in criminal courts, the new standard is “preponderance of evidence,” meaning it’s more likely than not that an assault occurred.
The policy change has resulted in more convictions and is starting to get expensive.
While only four such lawsuits were filed against universities from 2008 to 2010, between 2012 and 2014 there were 18 cases, representing a four-fold increase, according to a report by Stop Abusive and Violent Environments that is touted as the “most comprehensive listing of campus sex lawsuits ever.”
“Nearly all charge the university failed to comply with fundamental due process requirements in adjudicating the claim,” the organization said.
And the financial tab?
At least $36 million.
The surge came immediately after the 2011 change in the Department of Education’s sexual assault policy to the “preponderance of evidence” standard.
The controversial Department of Education mandate also required all allegations of sexual assault to be heard by campus disciplinary panels, the report said.
In addition, the policy removed a number of due process protections.
“These claims are known to be costly. According to EduRisk, a university insurance company, the average loss for accused students exceeds $183,000 per claim. In one case against Brown University, the college agreed to a $1 million settlement for a student who charged he had been wrongfully expelled.”
SAVE spokeswoman Sheryle Hutter charged that whoever “dreamed up the notion that criminal allegations of sexual assault could be handled by a panel that lacks the most basic understanding of due process.”
“The accused, victims, and universities – are all being shortchanged by the current federal mandate,” she said.
The organization has proposed requiring “all allegations of campus criminal sexual assault to be referred to local criminal justice authorities.”
The report is instructive. It describes the case of an unnamed victim of a 1994 tribunal at Gonzaga University in Spokane, Washington.
“The plaintiff, an elementary education student, had a sexually intimate relationship with Jane Doe, also a student at Gonzaga. Doe later told classmate, Julia Lynch, that she had been sexually assaulted. Roberta League, a Gonzaga office assistant, overheard Lynch telling a third classmate about the incidents,” the report said.
“An investigator for the state Office of the Superintendent of Public Instruction launched an investigation. Throughout the process, Jane Doe refused to make a formal statement. Based on the investigation, the Gonzaga dean decided not to sign the moral character affidavit for the plaintiff’s teaching certification.
“Prior to the decision, the plaintiff had not been informed of the investigation or provided an opportunity to refute the allegations. The plaintiff sued for defamation of character,” the report said.
During the trial, she declined to claim she had been assaulted.
The jury awarded the plaintiff $1.1 million damages, plus attorneys’ fees.
The Washington Supreme Court upheld the verdict for claims of defamation, invasion of privacy, violation of FERPA rights and breach of contract, the SAVE report said.
SAVE said that three years after the Obama administration “shifted responsibility for adjudicating sexual assault cases to campus committees … it has become clear that these panels are inadequate to the task of investigating and adjudicating allegations of sexual assault.”
WND reported recently a new lawsuit by Occidental College in Los Angeles for expelling a student after a female student allegedly sent text messages indicating she had wanted to have sex, arranged for a rendezvous then one week later accused him of sexual assault.
The plaintiff, who filed anonymously as John Doe, said the female student texted him asking if he had a condom, informed a friend she was “goingtohave ‘sex” (sic) and coordinated a route to his dorm.
Police investigated and decided not to prosecute, but the male student was expelled because of “pressure from the federal government to take action on sexual assault,” according to the Foundation for Individual Rights in Education, which is working on the case.
Los Angeles Deputy District Attorney Alison Meyers found that witnesses “agreed that the victim and suspect were both drunk” but were “willing participants exercising bad judgment.”
WND columnist Thomas Sowell recently asserted in a column that Obama’s Justice Department is encouraging the denial of constitutional protections on campuses.
“There seem to be a dangerously large number of people who think that the law exists to give them whatever they want – even when that means denying other people the same rights that they claim for themselves,” he wrote. “Nowhere is this self-centered attitude more common than on college campuses. And nowhere are such attitudes more encouraged than by the Obama administration’s Justice Department, which is threatening colleges that don’t handle rape issues the politically correct way – that is, by presuming the accused to be guilty and not letting constitutional safeguards get in the way.”
The New York Times reported that the White House was increasing the pressure on universities to be more aggressive in combating sex assault on campus.
WND also reported a federal judge allowed a series of claims by a student-athlete against his school to go to trial.
The student had been branded a rapist in a campus hearing even though a local prosecutor who investigated said the case should be dropped.
The ruling from U.S. District Judge Arthur Spiegel rejected the request by Xavier University to toss the case. It ordered a trial on claims by Dezmine Wells regarding breach of contract, intentional infliction of emotional distress, libel through injury to his personal reputation, his profession reputation and with malice, negligence and discrimination.
Warner was found guilty of sexual assault by a campus court in 2010, despite the facts established at the time by city police. Officers not only refused to charge him in the case but also alleged his accuser made a false report. Police issued a warrant for her arrest.
Even so, the university process found Warner guilty, and it took 18 months to resolve. During that time, Warner not only was banned from the UND campus but also from all college campuses in the state.