The Phillips & Associates Oklahoma Law Blog


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By Dustin Phillips on
March 17, 2016
April 15, 2020

Last month, we wrote about how several male college students cleared of rape charges have begun suing the universities that disciplined them. Because of federal law and Department of Education Title IX mandates, colleges and universities are tasked with conducting investigations into criminal allegations and levying "sentences"--expulsion, loss of scholarships, removal from sports teams, etc.--for those crimes.

Unfortunately, these federal mandates put the schools in a position they are not equipped to handle, and the schools' policies and procedures for these investigations often fall short of what would be considered appropriate in a criminal investigation and prosecution.

In an effort to protect the accusers, the accused often find themselves stripped of civil rights and disciplined harshly .  .  . even when there is insufficient evidence to warrant criminal charges, even when criminal charges are subsequently dismissed, and even when a defendant is ultimately acquitted.

In a recent Yahoo! Sports article, writer Dan Wetzel refers to these cases in general, and a pending Yale sexual assault case in particular, as a "complete system failure,"    stating that "everyone loses" when we try to force universities to handle criminal investigations.

Wetzel begins his article by discussing the case of Yale basketball team captain Jack Montague, who was expelled from the University of February 10, after    he was accused of having nonconsensual sex--raping--a fellow student in an incident in 2014.

The woman never reported the incident to police, and it was not until a year later that she filed a complaint with the Title IX University-Wide Committee. That committee's investigation concluded that the sex in question was non-consensual, and Montague was expelled, removing him from the team roster as Yale basketball made it to the NCAA Tournament for the first time since 1962.

Montague says the sex was consensual, and that it was the fourth consensual sexual encounter between the two. He is suing the school citing the university's    "arbitrary" and "excessive" investigation and punishment.

His attorney released the following statement:

Only two persons could have known what happened on that fourth night. The panel chose to believe the woman, by a "preponderance of the evidence." We believe     that it defies logic and common sense that a woman would seek to re-connect and get back into bed with a man who she says forced her to have unwanted     sex just hours earlier. And yet the Dean accepted this conclusion and ordered Jack to be expelled. His decision was then upheld by the Provost    

We strongly believe that the decision to expel Jack Montague was wrong, unfairly determined, arbitrary, and excessive by any rational measure. Yale has been oblivious to the catastrophic and irreparable damage resulting from these allegations and determinations. The expulsion not only deprives Jack of the degree which he was only three months short of earning, but has simultaneously destroyed both his educational and basketball careers.        

Wetzel details the "investigation" which led to the committee's determination, and points out several problems with conducting an investigation with such speed and denying the accused student the ability to question or respond to the investigative report. Furthermore, the burden of proof to "convict" someone on a college campus is much lighter--a "preponderance of evidence" rather than "beyond a reasonable doubt." And in many cases, the "preponderance" of such evidence is somewhat subjective.

Certainly, universities must step up to the plate to protect students from sexual assault, just as they must provide a safe environment that protects from other crimes, like theft, DUI, and assault. But asking universities to take over the role of law enforcement, prosecution, jury, and judge deprives victim of true justice and deprives the accused of their right to be presumed innocent unless found guilty.

Wetzel concludes:

It shouldn't just be Montague's teammates crying foul here. Those dedicated to supporting the victims of sexual assault should be demanding better systems of justice. Hyper-focusing on convicting a basketball captain like he's a trophy is missing the big picture.        

Having colleges pretend they can handle this stuff like they are police and prosecutors, and thus operating an unfair process even if it generates easy convictions isn't, in the long run, advancing the admirable and ultimate goal of women's safety.            

It's undermining it.

Isn't it time to find a solution that truly protects both accuser and accused? For more information check out this resource.

Image credit: Rictor Norton and David Allen            


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