At Least 11 Male Students Found Guilty of Rape and/or Sexual Assault by their Colleges Have Been Successful in Challenging Them in Court, and Even More Such Suits Are Pending, With More Likely on the Way

Now, College Students Found Guilty Are Turning the the Courts

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-- WASHINGTON, D.C. (June 9, 2014): Colleges being asked by U.S. Senator Claire McCaskil how they deal with allegations of rape and sexual assault are being advised by attorneys to “lawyer up,” while more male students found guilty of rape or sexual assault by their universities are bringing law suits - almost a dozen of which have already been successful - charging that the institutions badly "screwed up" both the investigations and the campus hearings, notes public interest law professor John Banzhaf.In a slide show of legal advice prepared by lawyers for member universities of the American Council on Education [ACE] which received the inquiries, universities were warned about responding to the survey about rape and sexual assault because it could lead to "reputational harm,” "additional investigations"and “litigation,”and also cause “public relations risks.”Lawyers reminded the universities, as they do large corporations accused of wrongdoing, that a congressional request for information “is not a subpoena”; that they can often duck by looking for an “opportunity to recast the questions”; and should be mindful of "what will play well on TV.”ACE originally even refused McCaskil’s request for copies of slides used in a legal slide show to warn representatives of universities how to make their answers "bulletproof,"and provided the slides only once it became clear that copies had surfaced and were about to be published.Reportedly, ACE is still refusing to tell the senator which institutions attended the "lawyer up" slide show. Meanwhile, colleges are facing a possibly more serious challenge as many male students found guilty of rape or sexual assault by their institutions are taking them to court and winning:BROWN I - she didn’t remember the event, he said the sex was consensual, but was found guilty; was reported on TV as case of “When Yes Means No”; case settled by universityBROWN II - student charged the school interfered with his efforts to clear his name because of pressure from accuser’s father, an influential alum and a major donor; lawsuit settled by universityDENISON - accused passed lie detector test, was found guilty anyway by university, sued on ten different legal grounds including violation of rights; case settled by universityDUKE I - famous case involving lacrosse players, law suit charged conspiracy to fame players, and was settled by the university for an undisclosed amountDUKE II - judge very recently prohibited university from expelling a student convicted of rape, because of alleged pressure on the campus tribunal to get tough on rapistsGEORGE WASHINGTON - was forced to settle a case where a former student sued the school for allegedly unfairly convicting him of sexual assaultHOLY CROSS - school policy held male responsible if both parties were drunk; university’s “responsible”finding was overturned; he was returned to school with no adverse mark on transcriptOCCIDENTAL - order of stay granted by the court when the student complained about improper procedures and definitions used in the campus proceeding which convicted himSAINT JOSEPH - federal judge upheld lawsuit brought by male student against university, a university employee, and even the female complainant, under several novel legal theoriesUNIVERSITY OF THE SOUTH - jury ruled university was negligent in a case that found a student guilty of sexual assault, saying that it did not follow its own published proceduresXAVIER - judge upheld a law suit, based upon many different legal theories, by a male student against his university which had earlier found him guilty of rape; university then settledAlso, late last week, in a case with some striking parallels, a military appeals court overturned a Marine's rape and sexual assault convictions because of the unfairness of pressure to convict from higher ups; an allegation common to several students’ complaintsMeanwhile, law suits filed by students convicted by their universities of rape and/or sexual assault are pending against Bucknell, Cincinnati, Columbia, Delaware State, Depauw, Drew, Kenyon, U of Michigan, Philadelphia U, Swarthmore, Vassar, Williams, and perhaps others.More such legal challenges are likely to be brought as pressure from the President, several federal agencies, women's rights organizations, and individual women and groups on campus result in more findings of guilt where they may not be warranted by the facts and/or because the procedures used did not protect the accused student's rights, says Banzhaf.This may be especially true as the federal government pressures schools to convict, not where the evidence establishes proof beyond a reasonable doubt (the usual standard in rape cases) or even by clear and convincing evidence, but rather where the conclusion is based upon a mere preponderance of evidence.This means that, in many “he said, she said” cases where there is no other corroborating evidence and the two students' stories conflict, the campus tribunal just has to find her story a little bit more convincing than his to expel the male student and scar him for life, says Banzhaf, who has brought more than 100 successful legal proceedings charging sex discrimination against women.Finding sexual assault by a mere preponderance of evidence may be appropriate where the consequence is a campus-wide restraining order, or a mandated move to another dorm or class to avoid facing the female complainant, but some higher standard may be required by law when the penalty, as in the Duke case, is expulsion plus loss of a diploma which he earned and is needed for his new job, says Banzhaf.One major problem confronting prosecutions for date rape is that among the 50 states and the District of Columbia, only 17 explicitly prohibit rape involving penetration without consent.Since so many date rape complaints allege that sex occurred without the female student's consent, but without the use of force or the threat of force, prosecutions may not be successful, or are likely to be overturned on appeal, even if the victim’s testimony of the events which occurred is believed, says Banzhaf, who is working on new procedures to improve date rape proceedings.