The Accused
Sexual assault survivors across the country say they were treated unfairly by their schools. An increasing number of men seeking legal action after being suspended for sexual misconduct say the process is also failing them.
Kevin said he always thought of himself as relatively “in touch with his own privilege.”
As a senior and student government representative at Wesleyan University, a private liberal arts college in Connecticut, Kevin was known around campus as, in his own semi-joking words, a “social justice bro.” He spoke at meetings about how important it was for fraternity members like himself to address sexual assault and even helped organize bystander intervention training for his fraternity house.
None of that mattered last December, when Kevin drunkenly texted another member of student government named Melanie to ask if she wanted to hang out and hook up. (All names of accused students have been changed. BuzzFeed News was unable to reach their accusers for comment.)
Melanie said Kevin could come over but that she didn’t want to hook up. Still, Kevin continued to send her incoherent requests to do so, calling her “babe” and “slut.”
Kevin was upset when he woke up to his texts the next morning, which he didn’t remember sending. He apologized to Melanie and asked if they could meet to talk about what happened. “We all do dumb shit when we’re drunk,” Melanie texted back. She told him not to worry about it: “We can definitely put it behind us.”
The two continued to work together in student government until April, when Melanie supported a resolution that would force all fraternities to go co-ed. Wesleyan has faced multiple lawsuits alleging sexual assault at fraternities in recent years, and the resolution’s backers said eliminating all-male spaces would curb campus rape culture. Some studies show that fraternity members are three times more likely to commit rape than other men on campus. But Kevin disagreed, arguing that most sexual assault takes place in dorm rooms and that there were better ways to prevent rape.
Tensions were high leading up to the final vote the week the Dean of Students summoned Kevin into his office, saying he wanted to talk about residential fraternities. But when Kevin sat down, the dean instead told him that Melanie had reported the text messages he sent her months earlier as harassment.
Kevin was given a “no-contact” order but wasn’t formally charged. Another administrator told him not to worry, since the texts, while “stupid,” were an isolated occurrence as opposed to repeated behavior and therefore not a serious concern under Title IX, the federal gender equity law that prohibits sex discrimination.
That administrator was wrong. The following week, Melanie made a formal complaint of harassment, setting the school’s disciplinary process in motion. Under that process, Kevin was immediately banned from his student government meetings. The co-ed fraternity proposal narrowly passed in his absence.
The ban was just the beginning of Kevin’s problems. In May, after another student came forward to accuse Kevin of “nonconsensual kissing” four years prior, Kevin was found responsible for violating both Wesleyan’s Discrimination and Harassment Policy and its Sexual Misconduct and Assault Policy. He was suspended for two semesters, weeks before he was supposed to get his diploma.
One month later, Kevin was fired from a job after his employer learned of his record. That’s when he hired a lawyer. But Kevin isn’t suing the women who accused him. Instead, he’s suing his school.
This week, Kevin filed suit against Wesleyan, accusing the school of conducting a “flawed” adjudication hearing and failing to provide Kevin with an “expected standard of due process.” (Wesleyan did not respond to a request for comment.)
Swift and uncompromising verdicts may be the result of successful reform efforts led by survivors and advocates seeking a long overdue zero-tolerance policy toward all forms of sexual assault. But Kevin and dozens of other male students in his position say they were treated unfairly by their colleges’ own disciplinary standards. Some of their objections even echo those of sexual assault survivors who say that the adjudication process is inconsistent and unclear.
“At first I thought they didn’t want me to participate in campus activities,” Kevin said. “Then I thought they didn’t want me to graduate. Now they don’t want me to have a job or be part of society. Do they want me to commit suicide? Is that what they want me to do? What is the endgame?”
Yelm / Wikimedia Commons
A 2007 report from the National Institute of Justice found that nearly 1 in 5 women had experienced a sexual assault or attempted sexual assault during college and that very few report it to their schools or the police. The growing national movement to curb campus sexual assault spurred by student activists has empowered more of these women to speak out. Between 2011 and 2013, there was a 38% increase in campus reports of forcible sex offenses. The White House has assembled a special task force, legislators have introduced bipartisan bills, and 85 colleges and counting are under federal investigation for allegedly violating Title IX, which instructs schools to prevent and respond to sexual harassment and violence, regardless of whether police are involved.
The hope is that the unprecedented movement will force administrators to take sexual assault and harassment allegations seriously. A recent Huffington Post survey found that fewer than one-third of students found responsible for sexual assault by their schools were expelled. Instead of mandating laughably lenient sentences — according to an Occidental College complaint, one student found responsible for rape was given the punishment of writing a five-page book report — advocates want schools to dole out suspensions and expulsions.
They also don’t think accused students should be able to graduate or transfer to other schools with a clean record, as is currently the national norm for disciplinary violations. It can be argued that having records follow students found responsible for sexual misconduct makes a lot of sense: Some studies show that 9 out of 10 college rapists are repeat predators and only 2% to 8% of rapes reported to the police are false.
“Of course perpetrators don’t want their behavior on their record, whether it is on the lower end or upper end of the spectrum,” said John Foubert, a former assistant dean at the University of Virginia, which is currently under federal investigation for its own problems with sexual assault. “But should it be? Yes. Schools have a right to know. And if they are turned in one time for nonconsensual kissing, what have they done 10 times before? I think the university ultimately has the responsibility to make a safe community for all students so they can learn. That’s not something you take a chance on.”
But the men suing their former schools say the rules regarding transcripts are murky and inconsistent, meaning they don’t know whether violations will be disclosed, or how, or for how long. They also say they never deserved such harsh punishments in the first place — and shouldn’t be prohibited from finding a job or going to graduate school as the result of what they see as a broken adjudication system.
More than 30 men found responsible for sexual misconduct by their colleges have filed lawsuits against their schools since 2011, and many more employ lawyers as consultants.
“A lot of these men come from homes that have a lot of financial resources, and their reaction when they don’t get what they want is to go sue somebody,” said Foubert. “It fits with what we know about perpetrators: They tend to think they can do whatever they want and have no accountability for it. I’m never really surprised when these men file suits, although I think it’s morally reprehensible. They would be better off if they focused on getting counseling for what they did and admitted responsibility.”
The three men who spoke to BuzzFeed News said they understand it’s hard to pity students at the most elite schools in the country who appear as if they are refusing to face the consequences of their actions. They also say that their grievances aren’t as much with their accusers as they are with the schools. In fact, these men are demanding some of the same reforms as survivor advocates: impartial and trained hearing boards, consistently enforced policies, and a clear understanding of their rights.
AlMare / Wikimedia Commons / Via commons.wikimedia.org
Advocates for campus sexual assault reform say a just process for the accused also benefits survivors. “A fair system for both sides is a feminist concern,” said Alexandra Brodsky, a law student and co-complainant in the 2011 Title IX case against Yale University. “Survivors know better than anyone that schools are not handling this well.”
Most advocates believe in the theory behind the Title IX adjudication process but are dissatisfied with its execution, which varies from school to school. Sexual assault survivors across the country say they’re humiliated by ignorant and inept administrators — a complaint shared by many of the accused.
Under Title IX, enacted in 1972, schools that receive federal funding are responsible for making sure students receive an “equitable” education free from discrimination on the basis of sex. The law was primarily used to mandate equity in athletics until 2011, when the U.S. Department of Education’s Office for Civil Rights reminded colleges that they were responsible for handling allegations of sexual assault “appropriately” under Title IX.
The government reiterated that the adjudication process was meant to be an alternative or complement to the arduous criminal justice system. Alleged survivors undergoing Title IX adjudication receive accommodations like no-contact orders and course schedule and housing adjustments — help they won’t get from the police. Schools were also directed to use a “preponderance of the evidence” standard, meaning that “it is more likely than not that sexual harassment or violence occurred,” to determine whether a student is responsible for misconduct instead of the “beyond a reasonable doubt” criminal standard of proof. The process is faster, but the results are also less severe: Accused students may be punished for misconduct, but they won’t go to jail.
As a result of the governmental guidance in 2011, the number of Title IX cases spiked, especially after student activists across the country started connecting online to help one another file complaints and tip off media.
“Title IX is a completely different legal regime,” said Nancy Cantalupo, a gender violence expert and adjunct professor at Georgetown University Law Center. The law is concerned with “equality of educational opportunity” rather than “community safety,” which is the focus of the criminal justice system, and therefore “provides victims with different rights.”
Higher education experts admit that sexual misconduct cases are extremely complicated for administrators to manage.
“These are difficult cases, much more difficult than your average university conduct case,” said Foubert. He chalks that up to, in part, “a limited amount of training and education” that “tends to focus on legal issues, which is really only part of what you need to know to fairly adjudicate a case.”
But Foubert and others also say accused students’ cases are often full of legal holes. For example, one frequent argument presented by lawyers for the accused is that their client suffered from “anti-male” discrimination under Title IX. That argument has yet to succeed in court. Private universities have no obligation to uphold due process, another common charge brought by lawyers representing the accused. The sanctions hearing panels give out are disciplinary, not criminal. Public schools don’t have much of an obligation, either; they only need to make sure students understand the charges against them, hear a description of the university’s evidence, and have the right to present their side of the story.
Last June, when Cantalupo testified on Sen. Claire McCaskill’s roundtable on campus sexual assault, she found only three cases where the court agreed there was a violation of due process. In two, there were no monetary damages, just a direction to go back and redo the case using proper procedures. In the third, the damages were minimal.
However, schools are legally obliged to follow their own disciplinary standards. For example, if a school says an investigation process will only take 60 days or that hearing panelists must be adequately trained, both accused students and accusers could take issue with their failure to do so under contractual law.
“One of the things I think gets lost in this conversation is that survivors have an interest in accused students being treated fairly,” Cantalupo said. “If they aren’t treated fairly, then these proceedings go on and on and on. And survivors don’t want that. Survivors have just as much of a stake in getting this right, and that includes making sure that the accused are treated with fundamental fairness.”
Andrew Miltenberg Jon Premosch / BuzzFeed
Andrew Miltenberg, a business litigator in New York City, never imagined himself as the go-to attorney for students accused of sexual assault. But two years after agreeing to represent a former Vassar College student because the case offended Miltenberg’s “sense of right and wrong,” that’s who he has become.
Miltenberg’s office is covered with newspaper clippings of the stories he was most known for before “schools started treating young men as presumptively guilty, while bowing to pressure from the national dialogue,” he said. Earlier in his career, he defended the rights of sidewalk street artists to sell their work outside of the Metropolitan Museum of Art and families of students of Battery Park City’s P.S. 89 who didn’t want the school to reopen months after 9/11. Now if you google Miltenberg’s name, you’ll find him listed on men’s rights websites and “The Committee of the Falsely Accused.”
Miltenberg says he receives an average of two calls a day from frantic students and their parents but only accepts cases where he truly believes the student is innocent. “If I wanted to do this full time, I could,” he said. “But I’m not trying to be the ‘college rape guy.’”
He represents nearly two dozen students in current or upcoming lawsuits — the six he’s filed so far are against Vassar, Columbia University, University of Massachusetts-Amherst, Drew University, University of Colorado, and Wesleyan — or on the consulting level. One man he regularly counsels is the former Columbia student who was found “not responsible” for raping Emma Sulkowicz, the student who has gained international fame for carrying the mattress she said she was raped on around Columbia’s campus as an activist art project.
Most of Miltenberg’s clients received strict punishments for “lower-level” offenses like nonconsensual kissing or touching, based on what Miltenberg said are specious or vague allegations. His goal isn’t always to overturn their sanctions as much as to ensure they don’t stay on his clients’ records and “compromise their future.” He also wants to make sure schools don’t “rush to judgment due to national and political pressure.”
But unlike many politicians and pundits sympathetic to accused students, Miltenberg doesn’t think higher education should abandon the adjudication process completely.
“Justice is the process, not the result,” Miltenberg said. “You may not be happy with the result, but you must be able to say, ‘I had a full and fair opportunity to present my case.’”
Nick Allen / Wikimedia Commons
Jason — until recently a student at an Ivy League school under Title IX investigation that has faced intense public criticism for the way it handles sexual assault cases — met Vanessa for the first time late at night at his fraternity house last March. Jason was drunk and doesn’t remember much, but he remembers giggling and talking about their hometowns.
Multiple bystanders saw Jason and Vanessa go up to his room. They also saw them making out on Jason’s bed. No one thought the situation seemed weird, according to witnesses who later volunteered to testify. But then, suddenly, Vanessa began to vomit. When she “came to,” Jason recalled, Vanessa didn’t know where she was or what was going on.
The next week, police knocked on Jason’s door. Vanessa had contacted both campus public safety officials and, later, local police after being urged to do so by friends who heard what happened, she said at the time. A campus public safety officer reported that Vanessa did not have any visible signs of injury or distress, and a detective noted that Vanessa did not report what happened as “harassment,” “sexual assault,” or “nonconsensual.” That’s because Vanessa didn’t remember what happened at all. She underwent a rape kit examination in hopes of finding out.
In an interview with BuzzFeed News, Jason said he understood why the police were investigating. If his sister or a friend had been in a similar situation, he would want the same. He told police that he barely remembered what happened either, but didn’t recall doing anything more than kissing and touching. He said Vanessa didn’t seem that drunk at the time.
“I think the police investigation was in good faith,” Jason said. “But the disciplinary hearing was not. They treated me as if I was some kind of monster.”
Jason has yet to file suit, but he and Miltenberg have compiled a lengthy list of the ways they say Jason was mistreated. For example, the process took significantly longer than 60 days, which violated the university’s own stated policies, as did Jason’s subsequent appeal, which took two months instead of two weeks. The school didn’t give Jason sufficient time to prepare for the hearing. The administration was required to provide him with all relevant case materials at least five business days in advance, but Jason had less than three business days. Vanessa submitted her 17-page-long transcript of her police interview to the college as her official complaint, but Jason was not given the same opportunity to submit his. One student on the hearing panel had been in a class with Vanessa. When Jason protested, the student said she thought she could be impartial.
On the day of Jason’s resolution meeting to discuss his fate, he woke up to an email asking why he didn’t attend. Administrators had rescheduled without notifying him.
According to legal documents, the police department that investigated the incident stated that “a significant factor in this will be whether semen is found” in Vanessa’s rape kit examination. Jason had told them that there wouldn’t be, and asked the panel to wait for the results of the kit before making a decision. They didn’t. Later that summer, the kit came back negative.
Jason was ultimately found responsible for violating the school’s policy that a “reasonable person” should have known that Vanessa was too incapacitated to consent. He was suspended for one year. Now, Jason is working for a friend’s company. He’s too scared to apply to graduate school, as previously planned, in fear that he’ll have to explain his record.
Jason acknowledges that the issue of consent is complex, but doesn’t feel it was right that the burden was all on him.
“They couldn’t prove that I wasn’t just as drunk,” he said. “So why was the burden of consent immediately assigned to me instead of her?”
Still, Jason doesn’t think Vanessa was lying. “That doesn’t strike me as an easy accusation to make,” he said. “What drives someone to make a bad-faith complaint? Why would they go through this whole thing?”
The Port of Authority / Wikimedia Commons
The White House Task Force knows the adjudication process needs reform. Last month, the group released new regulations that allow both the accused and their accusers to bring an advisor to hearings. That advisor can be a lawyer. Schools will have to be clearer about timing and detail how their disciplinary process works, including a list of all the possible sanctions they can impose.
If a school sanctions a student, it will have to be explicit about the degree of the punishment and why it was chosen. The regulations also redefine categories of sex crimes that colleges must report — such as domestic violence and stalking — and implement mandatory prevention programs.
Other higher education experts are interested in unorthodox ways to curb sexual assault that don’t replicate the criminal justice system or stay on a student’s record forever. Schools can possibly “deal responsibly with the fact that they have actual knowledge of a student’s previous violence,” Cantalupo said, by putting a monitoring plan in place alongside rehabilitation programs.
Mary Koss, a University of Arizona professor who coined the term “acquaintance rape,” co-authored a peer-reviewed paper this year arguing that a “restorative justice” response — which could include counseling, psychological assessment, close monitoring, and community service — would be more effective than the judicial model most campus hearing panels resemble, depending on the severity of the allegation and the victim’s preference.
While Jason and Kevin both said they would’ve been open to counseling or rehabilitation, some of the accused believe they shouldn’t have to face any consequences at all.
Corey, another one of Miltenberg’s clients who has yet to file suit, was initially expelled from his Ivy League college for allegedly engaging in unwanted sexual touching. When he protested, the school reconsidered and said it would only withhold his diploma for two years provided that he met certain conditions, including counseling and a psychological evaluation. Corey refused. He’s more upset about the two job offers he lost when he couldn’t deliver a diploma than thinking about how the woman who accused him feels.
“There’s no dialogue on instances of false accusations even though it happens time and time again,” Corey said. He insists the incident he was found responsible for was absolutely consensual, “just like any college one-night stand.”
“I see this as a freak occurrence,” Corey said. “I won’t let it affect me for the rest of my life; otherwise I would be living in the past. I know the truth, and I’ve said the truth. I think guys are just under the knife when they are in college.”
Tomwsulcer / Wikimedia Commons
There is no national standard for recording disciplinary actions on transcripts. The American Association of Collegiate Registrars and Admissions Officers currently recommends that “disciplinary action resulting in a period of probation, suspension or dismissal” should not be recorded on an official academic transcript. But a growing number of higher education industry experts disagree when it comes to serious disciplinary infractions, said Brad Myers, president of AACRAO and the registrar at Ohio State University. At Ohio State, “suspended” students can return after a year and clear their record, but a dismissal warrants a permanent note.
“What I’m concerned about is how anyone can know what happened if there’s nothing on the transcript,” Myers said. “The general public only cares about students who do pretty egregious things. They’re not interested in a student who carried a beer down the hallway when they are 21. They’re interested in sexual assault, crimes of violence.”
If a student transfers to another school, it’s usually up to that school to ask for more information regarding his disciplinary record. If so, his former school may say that there are “pending disciplinary proceedings,” or it might say nothing at all.
In 2002, Jesse Matthew Jr. was accused of sexual assault while a student at Liberty University. The next year, he transferred to Christopher Newport University, only to leave nine months later after he was accused of sexual assault again. Now Matthew is being held on a charge of abducting Hannah Graham — the University of Virginia student whose remains were recently found after a high-profile search — with the intent to sexually assault her. Matthew’s case is a particularly awful example, but there are many more instances where men accused of or found responsible for sexual misconduct shuffle from school to school without much notice.
“Frankly, I question how much having [sexual misconduct] on your permanent record is going to destroy your life forever,” Cantalupo said, “because there are many students whose lives do not appear destroyed — it didn’t even stop them from completing their education.”
Miltenberg, typically cheery and wry even when discussing his clients’ concerns, becomes agitated when he hears that records won’t hold the accused back from success in life. In all his cases, no school has ever been upfront about permanency, he said.
“This is simply not true. If it were, I would tell [certain students] to serve their suspension and finish school, that it’s not worth a lawsuit if no one will know about it after you graduate,” he said. “But we can’t promise this. Based on our experiences, everyone will know about it. Given the lack of clarity from schools, it is virtually certain to be a future challenge to the young men, and a significant one at that.”
CUBJONES83 / Wikimedia Commons
After Kevin, the “social justice bro,” was asked to stop attending student government meetings, he reluctantly complied and focused on job interviews and finals. But then two more women — who, he claims in his lawsuit, also supported the co-ed fraternity initiative — filed complaints against him in succession. They were also close friends of Kevin’s, or so Kevin thought. One alleged nonconsensual kissing and touching the year before; the other said Kevin kissed her without her consent in September 2010, during his first week of his freshman year.
Activists have embraced the concept of “affirmative consent” to put the burden on accused men like Kevin to prove the encounter was consensual. California has even codified affirmative consent through its “Yes Means Yes” law, which requires “an affirmative, unambiguous and conscious decision” by each party to engage in sexual activity.
It seems Wesleyan’s hearing process took “affirmative consent” into consideration when the panel disregarded claims Kevin made that are commonly used to undermine survivors. For example, the adjudicators didn’t find it relevant that one of Kevin’s accusers attended a formal dance with him months after the alleged nonconsensual incident, that Melanie had told Kevin that she wasn’t upset about his texts, or that one of his accusers remained close friends with him and, according to his lawsuit, asked him to live with her over the summer after the alleged nonconsensual incident.
But Kevin was also prohibited from calling witnesses or allowing a lawyer to accompany him to the hearing. He wasn’t even allowed to have his own copy of the complaint file to prepare himself, and was only allowed to view the women’s complaints five days before the hearing. Before that, Kevin had to write his account of the long-ago actions in preparation for the hearings without even knowing what he was being accused of. Kevin was allowed to submit questions to the hearing panel, but he says they were “arbitrarily ignored.”
Ultimately, Kevin was found responsible for two of the three counts: sexual harassment for the text messages and sexual misconduct for the alleged nonconsensual kissing during his first semester of freshman year. Kevin was sanctioned to a “deferred suspension,” which meant he had to leave campus within days and has to wait a year to get his diploma.
After an unsuccessful appeal, Kevin moved to Washington, D.C., and was hired by a member of Congress for whom he’d worked before. A month into his employment, an anonymous caller demanded to know why the Congress member employed an individual with a record of being found guilty of multiple incidents of sexual misconduct. His boss told him she didn’t know if the claims were true, but “given the political reality of the situation,” they had to let him go.
“Activists are furious with the current process, but so am I,” Kevin said. “It’s clear that colleges are inept in handling the disciplinary process. A kangaroo court of untrained amateurs was commissioned with the power to literally control my fate. To me, it was a mockery of the process we’re supposed to respect.”
Now Kevin is on antidepressants and in counseling. He reluctantly accepted his suspension and said he would have undergone a rehabilitation program. But he doesn’t think his transcript should be marked forever — because if it is, he feels his life is too.
“I was banished from campus and could not walk at my graduation because of accusations of nonconsensual kissing from my first night at college, reported a month before graduation, to back up a politically motivated harassment complaint,” Kevin said. “I’m still unsure what it is they want me to do. I can’t believe [my university] decided to make me a symbol of fraternity power and rape culture for kissing.”