Should schools punish in sex cases when there's no accuser?
HARTFORD: The expulsion of two college athletes on sexual misconduct grounds highlights a little-known facet of the latitude schools are given when investigating such cases: They can mete out punishment even in the absence of a complaint from the alleged victim.
Former Yale University basketball captain Jack Montague and former Colorado State-Pueblo football player and wrestler Grant Neal both filed federal lawsuits this year over their expulsions, alleging their schools mishandled information that originated with someone other than the alleged victim.
"There is no real complainant," said attorney Andrew Miltenberg, who represents Neal and has been the lawyer for about 100 men accused of sexual assaults on campuses. "There is no victim making the charge. There is the school acting on some sort of hearsay or information."
Neal was suspended after a woman reported to school authorities that her friend had been assaulted. According to the lawsuit, both Neal and the alleged victim said the sex was consensual, but the woman said she stopped the encounter at one point because Neal wasn't wearing a condom and then resumed it after he put one on.
Montague was expelled after a friend of the woman involved in his case went to a school official who ensures Yale's compliance with Title IX, the federal law designed to prevent sexual discrimination in education.
The lawsuit alleges the Title IX officer brought the complaint more than a year after the incident and despite being told the woman did not believe Montague heard her when she tried to end their sexual encounter. The victim eventually cooperated only after the Title IX officer informed her that Montague had previously received counseling after an incident involving another woman, according to the lawsuit.
The lawsuit alleges the school didn't tell her that case involved him shoving a paper plate down someone's shirt following a drunken argument outside a pizza parlor.
Both athletes say the sexual encounters were entirely consensual, and neither was ever charged with a crime. But in both cases, the schools acted after finding that a "preponderance of the evidence" indicated sexual misconduct more likely took place than didn't.
That's a much lower standard than the "beyond a reasonable doubt" standard of the criminal justice system.
Schools have been using the "preponderance" standard since receiving a "Dear Colleague" letter in 2001 from the Department of Education's Office for Civil Rights, outlining how they should handle sexual misconduct allegations. It warned that schools that fail to promptly investigate allegations of sexual assault and harassment, even if the accuser does not make a complaint to the institution, can face a loss of federal money.
Miltenberg, Neal's attorney, said that raises questions about whether schools are trying to conduct fair investigations or making examples out of high-profile defendants to appease the Office for Civil Rights.
"Even at the schools with the greatest of endowments, like a Yale, the threat of taking away federal funding is significant," he said.
KC Johnson, a professor at Brooklyn College who has written extensively on how schools handle sexual assault allegations, said the threat of an OCR investigation into a university also is powerful motivation for the institutions to be aggressive and err on the side of punishing the accused.
"Schools are not capable of dealing with situations like this very well," he said. "It's hard to fairly be a prosecutor, an investigator and a juror simultaneously."
He said that's why schools including Yale have a policy of having its Title IX officer bring cases in the absence of a victim complaint only in extraordinary circumstances, such as when there is an acute risk to the community. He said it's not clear that either of these cases meet that threshold.
Beth Hamilton, the director of prevention and programs at the Connecticut Alliance to End Sexual Violence, defends the "preponderance" standard as appropriate in a college setting.
Schools don't have the forensic tools and other resources necessary to conduct a police-style investigation of every report and can't force people to testify, she said.
Discipline from a school is often appropriate, she said, whether the conduct rises to the level of a crime or not.
"The worst that a university can do is expel a student from their institution," she said. "The criminal justice process should have a higher standard, because the worst thing that can happen is you can incarcerate somebody."
But Johnson points out that being expelled could cost Montague millions of dollars over the course of his life, prevent him from getting a job and leave him labeled for life as a rapist.
Yale called its investigation of the Montague case, and its process for investigating allegations, "thorough and fair."
"Only about one out of 10 cases has ended in expulsion, and the decision to expel a student has been made only after the most careful consideration, based on the facts and, when appropriate, disciplinary history," the school said in a statement.
Cora Zaletel, a spokeswoman for Colorado State-Pueblo, said the school would not comment because of the litigation.
It's unusual for a victim to not want to participate in the process, or even to not understand that what happened to them was misconduct, said Viktoria Kristiansson, a former prosecutor who now works as a consultant for AEquitas, a group that advises schools and prosecutors on cases involving violence against women.
She would not comment on the specifics of the Yale and Pueblo cases. But, she said, schools don't have any choice but to investigate and act on allegations, no matter their genesis.
"The reason we have these various options for reporting is because the goal of having these systems in place is to keep communities safe," she said. "Whether these reports are coming from the victims themselves or society, we should hope that these are always going to be looked into."