The Tyranny of Allegations

Glenn M. Ricketts

The problem of sexual assault on college campuses took center stage as a national issue during the past year, when it became the focus of unprecedented federal scrutiny. In January 2014, President Barack Obama announced the creation of a new White House Task Force to Protect Students from Sexual Assault, joining forces with the already-functioning Council on Women and Girls. In the same month, the latter agency issued Rape and Sexual Assault: A Renewed Call to Action.1 The report addressed the issue of sexual assault and violence in general, but noted that it was “a particular problem” on college campuses, and cited the now-familiar statistic that 20 percent of college women would be sexually assaulted during their college years.

And not only the White House: In May 2014 the U.S. Department of Education’s Office for Civil Rights (OCR) published the names of fifty-five colleges and universities under investigation for “noncompliance” with the agency’s Title IX requirements for responding to complaints of sexual assault.2 Noncompliance carries major consequences, since OCR has the option of withholding federal funds from schools judged to be delinquent. That’s never actually happened, but the mere possibility has been a very effective prompt to rapid-fire policy retrenchments at recipient schools. It certainly got results in 2011, when OCR announced that campus tribunals handling sexual misconduct cases would be required to apply a new low-bar “preponderance of evidence” standard in determining innocence or guilt. Recipient schools leaped to conform, and it wasn’t necessary to prod them again.

In the same month, Senator Claire McCaskill (D-MO), chairman of the U.S. Senate Subcommittee on Financial and Contracting Oversight, convened a series of three round tables that examined the occurrence of sexual violence on college campuses. Testimony was heard from victims, pro-victim advocates, school administrators, law enforcement officers, and government officials, but none of the accused or their representatives or anyone speaking for them. In addition, McCaskill distributed a twenty-three-page survey to 450 colleges and universities, asking that they describe in detail their procedures for reporting and processing allegations of sexual misconduct, especially with regard to the protection and support provided for victims.3 Close on the heels of McCaskill’s round tables came similar inquiries from the U.S. Senate Committee on Health, Education, Labor & Pensions (HELP). Chaired by Iowa Democrat Tom Harkin, the HELP committee addressed the theme “Sexual Assault on Campus: Working to Assure Student Safety” in a June 26, 2014, hearing, and received input from a similar range of witnesses, including OCR secretary Catherine Lhamon.4 On July 30, McCaskill and a bipartisan group of senators announced their sponsorship of the Campus Accountability and Safety Act, which, among other measures, would impose heavy financial penalties for any school found remiss in responding to complaints of sexual assault.5

The sustained thunder from Washington has already provoked a stampede in California, where the legislature late last August passed SB–967, Student Safety: Sexual Assault, signed by Governor Jerry Brown in late September.6 As a result, all California schools receiving state funding—whether public or private—will be required to impose a policy of “affirmative consent” between romantic couples at every stage of every sexual encounter, including those in lengthy relationships. In addition, the act also requires “detailed and victim-centered policies and protocols regarding sexual assault,” including victim protection, counseling, and “safe havens,” as many existing campus policies already do.7

All of this is set to pile onto campus disciplinary codes that are already very heavily stacked against anyone—usually male—accused of “sexual misconduct.” That’s a very vague and elastic catchall term that encompasses everything from forced rape to second thoughts long after a consensual encounter; an accusation can complicate your life enormously. And although serious questions of due process and the fairness of campus judiciary tribunals have been raised in various quarters, and litigation challenging summary guilty verdicts has mushroomed, neither Senate committee invited a single witness to address these and related issues, and the White House has been similarly uninterested.

So how exactly are allegations of sexual misconduct handled on campus? At minimum, they must incorporate OCR’s new procedural requirements into their own codes, and the agency’s increasingly heavy breathing about the consequences of “noncompliance” has been a powerful, unspoken incentive to return more guilty verdicts. With so much federal money at stake, there’s not going to be a great deal of anguished reflection when it comes to resolving the benefit of the doubt.

But many existing codes already burdened the accused prior to OCR’s new requirements of 2011. They often prohibit cross-examination or the assistance by counsel during disciplinary hearings, and significantly curb the opportunities for respondents to speak or submit evidence. Proceedings are usually secret and access to records or transcripts highly restricted. The following case summaries provide a disquieting glimpse of what happens behind the closed doors.

Joshua Strange, Auburn University8

In May 2011, Strange, then a sophomore at Auburn University, began a romantic relationship with a female student he had met through a mutual acquaintance. Not long after, they became sexually involved, and his new paramour moved into his apartment with him. But on the night of June 29, his girlfriend became upset, alleging that a sexual encounter between them was not consensual. She happened to hold a part-time job at the local police department and, after she mentioned the incident to coworkers, officers questioned Strange informally about the incident. But his girlfriend sheepishly declined to pursue formal charges against Strange, saying that it was all a mistake. She returned immediately to his apartment, and the two agreed to continue the relationship. Strange himself decided to sever the connection in August, due, in his account, to his girlfriend’s obsessive preoccupation with a former boyfriend. His major troubles began a short time later. In September, he was arrested and charged, after the now former girlfriend suddenly accused him of assaulting her in public two days earlier. She also reprised the sexual incident from June and now alleged that Strange had raped her. At the same time, she filed a Title IX complaint with the university, which, under federal requirements, was obliged to investigate. Strange vehemently denied both allegations, and was obliged to prepare his defense for parallel jurisdictions.

He was completely cleared of the criminal charges a few months later. In February 2012, a county grand jury found no evidence to indict Strange on the charge of forced sexual assault, and the case went no further. In May, the assault charges were dismissed when his accuser failed to appear at trial.

Strange was not so fortunate with Auburn’s Title IX procedures, which were veiled in secrecy. Prior to the hearing, he was notified by a university official that OCR’s new “preponderance of evidence” standard would be used in determining the outcome of the case, in contrast to the “clear and convincing” requirement used in all other college disciplinary hearings.

Strange’s university hearing took place during fall 2011. The examining panel was chaired by an Auburn librarian, assisted by two undergraduates, a clerical staffer, and a fisheries professor from the College of Agriculture. Strange and his accuser were separated by a screen; and although each had counsel present, their lawyers were not permitted to speak or otherwise participate except to identify themselves. No cross-examination was permitted and, beyond the option of making an opening statement, both parties could only respond to questions from the examining panel. Strange was additionally handicapped, however, by the pending criminal proceedings against him: any testimony given in the campus hearing—unsworn and unprotected—would be admissible in court. And by an almost perverse coincidence, his accuser’s attorney happened to be the local district prosecutor whom he might well face as a criminal defendant. On advice of counsel, he made no opening or concluding statement.

The ninety-nine-minute session was punctuated by frequent interruptions: the chairman seemed hesitant and confused and frequently conferred with others in an adjoining area on points of procedure. The accuser was supported by two witnesses: one from the university’s Title IX office, the other a “safe harbor advocate” from the campus police, who provided a range of service and support for alleged sex-crime victims. They affirmed that her allegations were “credible.” Strange had also provided the names of witnesses to testify on his behalf, but they were never notified by the panel, and were not present for the hearing. He also submitted additional supporting evidence, but saw no indication that it had been even minimally examined by the panel.

A short time later, the panel concluded that the case against Strange was compelling, and recommended his expulsion to Auburn’s president, who would make the final decision. Under university rules, Strange was permitted to appeal the decision within five days, after which his accuser would have five days to file a response. Strange’s appeal was timely, but his accuser’s response was filed more than a month after the university’s deadline. It was accepted nevertheless, and in February 2012, several days after the local grand jury found no case against Strange for rape, Auburn’s president upheld the panel’s verdict and expelled him.

Unfortunately, the last day to withdraw from courses had passed, and Strange forfeited his tuition for the semester. Apparently Auburn could be flexible with some deadlines, but not others. He was also banned from the campus for life under penalty of criminal trespass, thus preventing him from gaining access to any university documents relevant to his case. To date, the university has not responded to any of his public records requests for documents bearing on his case. He considered bringing suit against Auburn, but did not because of financial constraints and statutory limitations. He eventually transferred to the University of South Carolina Upstate and graduated in June 2014. As of now, however, Joshua Strange is still officially a “sex offender” at Auburn.

Ethan Peloe, University of Cincinnati9

Like Joshua Strange, Ethan Peloe was also accused of rape and quickly exonerated by local law enforcement agencies, including University of Cincinnati (UC) campus police detectives and a local grand jury, which declined to indict him, citing lack of evidence. And like Strange, he was far less fortunate at the hands of a university disciplinary committee, which also considered his case and recommended his dismissal from the university. Facing expulsion, Peloe filed a federal lawsuit in July 2014, charging UC with denial of due process and Title IX gender bias against him as a male student. Campus judicial proceedings have been tabled, pending the outcome of the suit. UC has declined to comment, beyond affirming its Title IX obligations to maintain a “safe environment” for all students.

In March 2014, after attending a couple of local parties, Peloe, a junior, accompanied two freshman women he had met that evening back to their dormitory. What followed after that is hotly disputed. The two coeds claimed that Peloe had been granted entry to their room by a dorm staffer without being asked to produce identification, and without their consent. They also claimed to have been drinking heavily, to the point of “incapacitation,” which they said enabled Peloe to force himself on them sexually. Subsequently, they accused him of rape and attempted rape. Peloe vehemently denied the accusation and contended that the two women were not intoxicated, had actually invited him into their room, and had been fully conscious at the time of the alleged assault. He claimed further that at least one other woman had been present in the dorm room, and could corroborate his testimony that nothing criminal had taken place.

UC campus police investigated the complaint, and Peloe voluntarily provided them with a full statement. He also offered to provide DNA samples and to take a polygraph test during interrogation. According to Peloe, campus police had administered rape kits to the two complainants and had also arranged for them to be seen by a Sexual Assault Nurse Examiner (SANE). The police, Peloe claimed, had obtained a dorm security video confirming that the two women were not intoxicated and signed him in as a dorm visitor. Police also found that the two women had exchanged numerous text messages during the time that they claimed to have been unconscious, and also confirmed that a third woman had indeed been present in the apartment at the time of the alleged rape. Her testimony to police vindicated his account of the evening’s events. Finally, Peloe claimed that campus police detectives had informed his mother that they found his account far more credible than that of his accusers, whose testimony was inconsistent and contained significant gaps and contradictions. One of the detectives even offered to give testimony on Peloe’s behalf in a civil suit, if he decided to seek damages. In any event, the campus police concluded their investigation and did not charge Peloe with a crime. The case had also been referred to a Hamilton County grand jury, which in early April found no basis for a criminal indictment.

But the day after the grand jury cleared Peloe, he was notified by Daniel Cummins, Assistant Dean of Students and Director of the Office of University Judicial Affairs, that he would be required to prepare for a disciplinary hearing for violating the UC student code of conduct, specifically under “Harassment, Physical Abuse and Harm.” Peloe’s two accusers had not filed a formal written complaint. Nevertheless, they received extensive support from Auburn in the form of counseling and protection from contact with Peloe—he was barred from entering campus—as well as being excused from classes and academic work while the case was under review. This support was provided free of charge, with the help of “advocates” who would assist the two coeds throughout the judicial proceeding. Peloe, by contrast, was obliged to retain counsel at his own expense and throw himself on the mercy of an Administrative Review Committee (ARC), which seemed resolved in advance to find him guilty.

The ARC overrode nearly all of UC’s official procedural requirements. In the first place, the hearing was scheduled without a specified preliminary investigation intended to determine whether the allegations against Peloe were credible. The assistant dean also failed to interview any independent witnesses prior to the hearing, which was convened in early May. One of the panelists, a lower-level university administrator who grilled Peloe especially aggressively, had also been exchanging emails with one of his accusers and had been cc’d on all correspondence from the dean who processed the complaint. This panelist was not, however, disqualified for conflict of interest. And as with Joshua Strange’s hearing, no direct cross-examination was permitted. Instead, Peloe was obliged to submit questions to the panel’s chairman, who disallowed nearly all of them. Peloe was also denied the opportunity to record the proceedings, on grounds that the university’s code did not allow it. When he demonstrated that the code contained no such prohibition, the chairman still refused to accommodate him.

Most striking, however, was the panel’s flat refusal to examine any of the exculpatory evidence that Peloe sought to submit: the security video that would confirm that his accusers were not intoxicated and had voluntarily allowed him to enter their room; the texts of the e-mails that they had exchanged during the time they had claimed to be unconscious; the failure of the panel—despite Peloe’s numerous requests—to hear testimony from the two campus police detectives who had conducted the investigation of the allegations against him. Instead, those detectives were informed that they were not required to attend the hearing and each took the day off. Especially bizarre, however, was the panel’s refusal to consider the evidence collected by campus police, including the results of the potentially exculpatory rape kit lab analysis and the testimony of the SANE. All of this, the chairman informed him, was “irrelevant.” In brief, Peloe was not permitted to defend himself, beyond responding to questions from an obviously hostile panel. At present, he’s awaiting his day in federal court.

Where Is Justice?

To anyone with a sense of traditional American rights of due process or judicial fairness, these cases must appear surreal or farcical: surely they represent isolated aberrations? Unfortunately, I believe that such cases are not at all exceptional, and occur regularly. At present, more than thirty schools are responding to litigation initiated by students challenging the sort of “justice” meted out to Joshua Strange and Ethan Peloe.10 But I also believe that there are many invisible instances out there, similar to one I am currently working on in an advisory capacity. I’d been contacted by a bewildered parent whose son was accused of “sexual assault” by his former girlfriend some six months after the unpleasant end of their romantic relationship. He was one semester short of completing his undergraduate education, but now faces an expulsion that would deprive him of his college degree. It is a familiar script: no cross-examination permitted, potentially exculpatory evidence excluded by the administrative tribunal, the complainant provided with extensive “protection” and other services by the university, the accused obliged to hire a lawyer at considerable personal expense, ending with the same rubber-stamp “guilty” finding by the panel. He appealed that verdict and is awaiting final notice from the university president, but isn’t optimistic. If the president upholds the panel, the student’s attorney indicated that he’d be very likely to prevail in a civil action against the school. But even with a pro bono lawyer, the filing fees and other preliminary costs would far exceed his family’s resources, so it’s unlikely that he’ll be able to sue. That means this young man will continue to carry the stigma of an expelled “sex offender,”11 even though no criminal court would have convicted him.

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