Men fight back against sex assault charges

Parent Cafe
21

“it seems reasonable to conclude that if the colleges were willing to settle, they felt that the judge would rule in the plaintiff’s favor.”

No, what you can conclude is that the college felt the settlement helped it avoid some risk. It might be the risk of loss at trial, but if so, it might be smart to settle even if the risk of loss at trial is 5%.

You can see this all the time in plea bargains, which are settlements of criminal rather than civil cases. If the defendant is looking the possibility of 30 years in jail if he goes to trial, he might accept a deal for 2 years even if he is pretty sure he could win at trial, because the 30-year-sentence outcome is so awful that even a small risk of it is unacceptable.

So maybe the college views a loss at trial as a long shot, but a disaster if it did happen, so it’s well worth $500,000 or whatever to avoid that risk.

Parties who believe they’d have the upper hand at trial settle all the time. The odds at trial affect the size of the settlement, but usually not the fact of settlement. Proceeding to trial is not only expensive and public; it also means a long period of uncertainty. Institutions hate uncertainty. You can’t budget for that. It’s better for business to have a known, acceptable cost right now than an unknown one in three years.

In my experience with these cases, reinstatement at the college would be an unusual settlement provision. Typically the accused is hurt and angry and doesn’t want to go back. They want money and/or a clean official record for transfer and grad school purposes.

(I am a lawyer, but currently get involved in this type of case as an educational consultant.)

22

Clarification is needed in this thread regarding colleges and settlements in litigation involving sexual assault. In the vast majority of cases it is not up to the college or university to settle the case. Most school’s liability policies cover sexual violence claims that fall under Title IX and it is the insurance company that pays any damages that might stem from those claims. While they may consult the insured, the decision to settle comes from the entity paying the settlement. Most of these policies also include litigation expenses.

These policies extend beyond Title IX claims. Who do you think paid the $59.7 settlement in the Sandusky case? It was not Penn State but rather the consortium of insurance companies that insured them. So I really do not think any inference can be drawn from settlements of these cases.

23

I think that it is time that the “he must have consented because if he were really drunk he wouldn’t be able to perform” theory is put to rest. If a woman can claim that despite her ability to walk, talk, text, say yes, take off her own clothes, get into bed, and get up and leave unhindered when she chooses to she was STILL incapable of consent, then to claim that because a guy is capable of responding to physical stimulus he must have “consented” is patently ludicrous.

@sherpa, that’s the commonsensical way of looking at it. Unfortunately, those who believe that sex is something that men “do to” women do not agree. They will inevitably trot out the “being drunk is no excuse for committing a crime” point. And of course, it is a good point. When an actual crime is involved. When it is a legal-fiction crime that is defined as such only because the other party was also drunk and regrets it later, it is another matter. If he regrets it, that is de facto evidence that he’s a rapist. If she regrets it, that’s de facto evidence that she was raped. If she changes her story several times, well that’s because she is an assault victim and they are known to have such difficulties. Again, a good point in the case of an actual assault, not a legal-fiction assault. If he changes his story, he’s a liar with no credibility. If he doesn’t change his story, he’s a liar and a rapist because according to Stanford, for example, presenting a rational defense is a sign of guilt.

Good bye, due process. Hello, Mr. Kafka.

24

This is exactly why victims should report their assault to the authorities. It’s beyond me why universities have any power when it comes to dealing with crimes. If a students kills someone, are you gonna make them sit through a bunch of disciplinary hearings? No. Let the legal system handle it and you eliminate these lawsuits. It’s ridiculous.

25

@dstark, in the Swarthmore case they admitted possible wrong-doing and joined in the request. That one, at least, as fairly clear.

26

For a long time we have pretty much expected college girls to protect themselves from sexual assault and rape. We teach them how to be safe. Being aware of risky situations is just a part of their day to day lives.

Now it is going to be necessary to teach college boys how to protect themselves from false accusations. They are going to have to worry about risky situations and make judgement calls. It seems to me we are still coming to terms with that reality. It’s a new world. imho.

27

Sadly, we are probably getting to the point where all college males will be videotaping every sexual encounter they have as their proof that consent was given as a way to protect themselves.

There have been a few cases where women have claimed rape or gang rape and the only thing to have save the males involved was their foresight to film the encounter.

28

Is it legal to film a sexual encounter without consent? Will a boy have to prove there was consent to film and record the encounter?

29

Hanna writes

So how is this kind of proceeding explained?

30

I think one thing that is worth noting from the Yu case is that if the accuser was really too drunk to consent–and there’s sufficient evidence that the accused knew this–the accused doesn’t necessarily get off the hook if the accuser makes some statements after the fact that she consented, or that she would have consented if she’d been sober. You can’t consent retroactively–except, perhaps, by not bringing a complaint. I think this is something that college men need to realize–having sex with a super-drunk person is a bad idea, even if that person really seems to want it, and even if you’ve had sex with that very person before.

31

^^ If I had sons in college now, I would be advising them sex when either party is drunk is a very risky situation, and having them read all these cases that keep getting cited on these threads. I don’t think I’d advise them to film encounters, unless they could prove there was consent for the filming, which seems pretty difficult to me. I’d be telling them: Just say no :slight_smile: to inebriated individuals attempting to seduce you.
.
As a child of the 70s, I’ve had a difficult time letting go of the idea casual sex is okay, but I’ve come around after all these threads. I would warn my sons about the risks.

32

http://m.utsandiego.com/news/2015/apr/14/suspended-student-sues-sdsu-to-see-evidence/

Here’s another case out of San Diego State. No due process. The student was suspended without even knowing the accusations against him.

His lawyer says that the university is suspending men with little to no evidence in order to keep the federal money flowing. Money is more important than justice, I suppose.

33

@alh, I never said the filming would be without consent.

34

And another at the same school:

http://www.utsandiego.com/news/2015/apr/09/accused-ucsd-student-sues-to-reverse-suspension/

"According to the lawsuit, a 20-year-old undergraduate referred to as “John Doe” was suspended for a year and a quarter following a hearing before a review board after a 19-year-old female student, referred to as “Jane Roe,” accused him of sexual misconduct. Specifically, she said he tried to touch her “in a manner that was unwanted” on the morning of Feb. 1, 2014, according to the lawsuit.

The suit also claims the two had consensual sexual relations before and after the incident.

…According to the lawsuit, the male student denied the incident at an administrative resolution meeting last October and appeared before a Student Conduct Review Panel hearing in December. Haberkorn said the panel chair refused to ask the woman 23 of the 32 questions Doe had submitted as “crucial to his defense.”

The panel determined the male student was responsible for sexual misconduct and recommended the school suspend him for a quarter.

Dean Sherry Mallory increased the suspension to one year last January, and a panel of provosts who heard an appeal from Haberkorn increased the suspension to a year and a quarter last month.

Haberkorn questioned if the school increased the punishment to send a message to discourage other accused students from working with attorneys."

35

“So how is this kind of proceeding explained?”

It depends on the accused’s side of the story, whether he was found responsible, what the punishment was, etc. The broad summary is, if found responsible, you acknowledge it, you express regret for things that you agree you did wrong (e.g., underage drinking), you explain what happened from your point of view, and you talk about what you’ve done since then and hope to do in the future. Needless to say, there are a lot of fine lines to walk in doing all this, and each situation is unique, but that’s the gist of the damage control.

36

In so many of these cases in which the accused feels he was wrongfully accused and penalized, the accuser’s consent is considered irrelevant because she was determined to be too incapacitated, intoxicated, impaired or drunk to consent.

What entails incapacitation? How does it differ from intoxication, impairment or just being drunk? It appears that each college has its own definition and barring the unlikely presence of a breath alator result the determination is highly subjective.

Obviously if the accuser was passed out unconscious, she was incapacitated. A good case could be made for intoxication if witnesses observe the victim staggering, slurring, acting irrationally, vomiting or acting irrationally. Even better if there’s video evidence.

But in many cases, she is walking, talking and taking an active role in the proceedings, in other words acting like a normal person who’s had a few drinks. Is she incapacitated?
In the absence of physical evidence, the committee hearing the accusation would have to take into account the accuser’s own opinion of how drunk she was, what she told or wrote other people at the time, physical characteristics observed by other people (slurring, staggering), other people’s comparison of her condition at the time versus her normal condition, observations about how much alcohol was concerned.

But weeks or months after the event memories could be fuzzy and biases of the alleged victim and her friends and supporters would have hardened. Different people react differently to different amounts of alcohol under different circumstances, and after the fact it’s even harder to determine how drunk is too drunk to consent.

To me, making this determination, in these borderline, grey area cases is a near impossible task, and in many cases, if the accuser says she was too drunk, then the committee accepts that there is a preponderance of evidence that she was. There is absolutely nothing the accused can say or ask others to say that disproves the accused’s assertion.

37

I don’t think the involvement of the insurance company is always pertinent or that we should assume that a settlement positive to the plaintiff always involves money. The objective of many of the cases filed by wrongly accused men, is not a monetary award, but a clean record.

Andrew Miltenberg, who’s become the go-to lawyer in many of these cases, says “Most of the time I’m looking to seal the records or have this redacted upon graduation so it doesn’t follow them around for the rest of their lives,”

Since the many of these settlements are confidential we can’t know what the college has agreed to do.

In one case, a student at CU-Boulder was awarded $15,000 which many observed was a token amount; however, as part of the settlement the college is prohibited from revealing the details of his sexual misconduct case investigation and decision unless John Doe issues a waiver allowing them to do so. The suspension will not show up on his transcript. If asked, the college will say that John Doe would be welcome back (though he’s agreed to withdraw). If asked about his disciplinary record CU will say “In fall 2013, John Doe was subject to a student conduct investigation and was found to have violated two code provisions.”

I would consider this type of settlement at least a partial victory for the plaintiff who can now get on with his life.

38

Can someone shoot some other person if the other agrees to be shot and both of them are drunk?

39

Two problems with that analogy. One, if two drunk idiots decided to shoot one or the other of them while drunk, then the crime would be manslaughter, not murder. Two, the drunk idiots could be male or female and the punishment would be the same.

40

How about this analogy: in my dorm room, I have a valuable bottle of champagne that I am saving to drink when I graduate. You come over to my room, we both get very drunk, and you ask me if you can open and drink that champagne. I drunkenly agree, and you do so. After we sober up, should I be able to have you prosecuted for stealing my champagne?