Lawsuit challenges U-M’s sex assault policy, student claims U-M biased against males accused of assault

Tuesday, June 12, 2018 - 9:04am

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Alec Cohen/Daily

A lawsuit filed in U.S. District Court by Deborah Gordon Law on June 4 on behalf of a male University of Michigan student, claims the University’s sexual misconduct policy does not provide due process to males accused of sexual assault and thereby discriminates against them on the basis of gender. The allegation follows a complaint brought forth by a female student who approached U-M’s Office of Institutional Equity on March 12 saying she and the male student had engaged in non-consensual sexual activity several months earlier.  

In April, the University sent out a no-contact order against the male student. The female student then claimed the male student violated the directive by staying in the same dining hall as her, and the University reprimanded him via email. According to the lawsuit, however, the male’s Mcard records prove he was not in the dining hall at that time.

Due to the female student’s accusations of assault, the University put the male student’s official transcript on hold, preventing him from starting graduate school until further notice. This disciplinary action was not warranted, the lawsuit says, because the University failed to fairly investigate the situation. According to the lawsuit, the students did have sex in his dorm room in November 2017 but the interaction was consensual and no alcohol or drugs were involved. The male student also claims the two stayed in touch after having sex, even eating together in the dining hall. He says the female student suggested having sex again, but he declined.

In April, the male was interviewed by an investigator from the Office for Institutional Equity. The University has yet to release an official decision as to whether he violated the school’s code of conduct. The U-M sexual misconduct policy does not require a hearing or cross-examination, a system the lawsuit claims is unfair to the accused.

According to David Nacht, founder of NachtLaw in Ann Arbor, said it’s important that institutions fully investigate claims of sexual assault because being pegged for any sexual misdemeanor can have a “stigmatizing effect” and derail an accused student’s future plans.

The official text of the lawsuit, provided to The Daily by Deborah Gordon Law, also says the accusations could affect the male student’s future. He was accepted into engineering graduate school at U-M and multiple other institutions, one of which required his official transcript by June 8.

“Based only on a mere allegation against him, Defendants have placed an indefinite hold on his official transcript and his degree, halting his ability to pursue his education or obtain employment,” the text says. “This is a violation of his due process rights.”

The lawsuit takes issue with the Univeristy’s sexual misconduct policy on the basis of Doe vs. University of Cincinnati, a 2017 sexual assault case involving two students at the University of Cincinnati. The U.S. Sixth Circuit Court of Appeals ruled the accused student deserves some form of cross-examination in a sexual assault case relying on hearsay.

“The Due Process Clause guarantees fundamental fairness to state university students facing long-term exclusion from the educational process,” the ruling said. “Here, the University’s disciplinary committee necessarily made a credibility determination in finding John Doe responsible for sexually assaulting Jane Roe given the exclusively “he said/she said” nature of the case. Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

Nacht said universities’ use of cross examination in sexual assault cases changed greatly under the Obama administration. In 2011, the U.S Department of Education’s Office for Civil Rights released a letter offering guidelines as to how institutions should handle lawsuits involving assault. The statement emphasized victims’ rights, suggesting that institutions limit cross-examination out of respect for the accuser.

“OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing,” the letter read. “Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

Nacht said many schools, like the University of Michigan, scaled back on cross-examination after the letter was released in order to protect their federal funding. More students began to bring forward their accusations, Nacht said, possibly because assault survivors knew they would not be required to respond to questioning from the perpetrator’s representatives.

“Under the system where there was more cross-examination, there were a lot fewer cases being brought up,” Nacht said.

But Nacht, who has represented dozens of students — both accusers and the accused — in sexual assault cases, said the lack of cross-examination has led to some issues. For instance, many of Nacht’s cases have involved a student coming forward well after an alleged assault. Since the time of the assault, Nacht said, new, complicating details about the relationship between the two parties can emerge, making some kind of cross-examination or questioning favorable.

“It is remarkable, the percentage of cases where people come forward a long time after the incident,” Nacht said. “This calls out for cross-examination, from a lawyer’s perspective.”

The U-M Office for Institutional Equity has until June 25 to respond to Deborah Gordon’s lawsuit. In an email to The Daily, University spokesman Rick Fitzgerald wrote the administration is readying its reply.

“Because this complaint involves a student, we are limited by federal privacy laws on what we can say outside of the legal proceedings,” Fitzgerald wrote. “However, we will carefully examine the complaint and prepare a detailed response by the court's deadline.”

While universities must prioritize victim’s rights, Nacht said the University’s sexual misconduct policies are not necessarily specific enough and could make room for more thorough investigations.

“The current process, I think, has some problems,” Nacht said. “I think we’re feeling our way about how to do it in a lawful manner that’s respectful of all parties.”

Beyond the issue of policy changes, Nacht believes cultural shifts could prevent sexual assaults and difficult legal cases from arising in the first place. 

“What we really want," Nacht said, "Is fraternities to be in the business of raising gentlemen."