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Suspended Columbia athlete files federal lawsuit over campus sexual assault conviction

Suspended Columbia athlete files federal lawsuit over campus sexual assault conviction

Alleges one night stand was consensual, and university deprived him of due process rights under campus pressure to prosecute student athletes

Columbia University has been the focus of heated arguments over the university’s handling of sexual assault complaints.

In recent days, the names of alleged “rapists” have been scrawled on bathroom walls and in flyers, as reported at The Columbia Spectator, The NY Daily News, and The Columbia Lion, and Jezebel, which provided this redacted image:

Also this week, a former Columbia student went public with her story of an alleged rape:

Against this backdrop of claims that sexual assaults are not addressed adequately by administrators, there has been substantial pushback at many campuses that the definitions of sexual assault and consent used on campuses are overly broad and that males are not given sufficient due process protection:

Earlier today in federal court in New York a Complaint was filed by a former Columbia student alleging that he was unfairly found to have committed a sexual assault based upon allegedly flimsy and inconsistent evidence, without due process protections. The Complaint is embedded at the bottom of this post.

The heart of the Complaint is that the sex was consensual, as evidenced by the lack of contemporaneous complaint and a delay of 5 months in complaining:

2. John Doe and Jane Doe were friends within the same social circle at Columbia University. It was at Jane Doe’s suggestion that they engaged in one night of consensual sexual activity during finals week in the Spring of 2013 (“Evening of May 12”) inside Jane Doe’s suite bathroom. It was Jane Doe who let Plaintiff John Doe in the bathroom in order to obtain a condom from her dormitory room, then returning to the suite bathroom to undress herself in front of John Doe. After the evening ended, Jane Doe and John Doe left each other’s company on good terms.

3. Several weeks into the Fall 2013 semester and nearly five (5) months after the one night of sexual activity, Jane Doe decided to report the Evening of
May 12 as “non-consensual” sexual activity. No contemporaneous report was ever made nor was any police report was ever filed by Jane Doe in connection with her sexual activity with Plaintiff John Doe; no visit to a medical care facility was ever made by Jane Doe in connection with such sexual activity either; and indeed, no allegation of improper sexual behavior was made by Jane Doe for nearly five (5) months after the one night of sexual activity with John Doe. Notwithstanding the foregoing, and further notwithstanding a paucity of direct evidence, including an unforgiveable lack of administrative continuity and simple, practical good sense during the investigatory process, Defendant Columbia found John Doe guilty of sexual misconduct in having non-consensual sex with Jane Doe and has issued Plaintiff John Doe an order of suspension from Columbia University until Fall 2015.

The Complaint goes on to detail the lack of due process or appropriate investigation, and the allegedly one-sided nature of the proceeding. The Complaint alleges that campus political pressure based on allegations of a lack of prosecution contributed to the rush to judgment:

6. In fact, it is common knowledge that, at the time of John Doe’s disciplinary hearing and sanction, Columbia University was undergoing negative public scrutiny and backlash by student political organizations for Columbia University’s lack of vigilance against male students (especially male student athletes) accused of sexual assault, and the perceived failure of Columbia University to mete out appropriately high sanctions.

The Complaint provides great detail on the night in question and the disciplinary process. The amount of damages sought are not specified, which is not unusual.

Andrew T. Miltenberg, attorney for plaintiff “John Doe,” told me that the case was not related to the publicly reported alleged sexual assaults that are in the news, and provided this statement:

As you are aware, Columbia University is undergoing negative public scrutiny and backlash by student political organizations due to Columbia University’s alleged lack of vigilance against male students (especially male student athletes) accused of sexual assault, and the perceived failure of Columbia University to mete out appropriately high sanctions.

It was set against this stage that Columbia University sought to make an “example” out of my client as a “student athlete” accused of sexual assault and meted out a disproportionately severe sanction of a two-year suspension from the school, notwithstanding the lack of any evidence that the sexual activity between my client and another student was non-consensual.

Particularly of note is the fact that even the complainant believed the sanction to be too severe and personally appealed the decision. Columbia University refused to change its ruling. We allege that Columbia’s guidelines and regulations, in fact, the entirety of the process by which sexual assault allegations are investigated and resolved at Columbia, is deeply flawed and disproportionately affects the male student population. Our client found himself at the mercy of a system in which there is, essentially, a presumed guilt; a system sorely lacking in the procedural safeguards and due process to adequately prepare for what amounts to a trial, which will have an indelible impact on his future.

We are quite adamant that college disciplinary panels are absolutely not the place to adjudicate sexual assault matters; until such time as that is changed, it is frighteningly clear that the “preponderance of evidence” is an abomination, especially within the context of Columbia’s uneven, flawed process, which lacks the investigatory expertise, quasi-judicial experience and knowledge to be sitting in judgment on matters that have such severe ramifications for both the alleged victim and alleged assailant.

Columbia responded to a request for comment by stating: “We do not comment on litigation.”

Doe v. Columbia Univ – Complaint Re Due Process

(Featured Image – Columbia University Commencement 2014 via Facebook)


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I’d think Columbia University has a moral and legal obligation to report such incidents to law enforcement. A charge of rape is extremely serious and shouldn’t be handled by kangaroo courts that require no actual evidence.

    Neo in reply to Sanddog. | May 19, 2014 at 6:08 pm

    Frankly, by no reporting these incidents to the authorities, schools like Columbia open themselves up to the same sorts of law suits that the Catholic (and other) Church(es) have for the same sort of activities.

    Olinser in reply to Sanddog. | May 19, 2014 at 7:36 pm

    Colleges do it this way because there is usually insufficient evidence to even bring it to trial, much less get a conviction.

    They do it so they can act tough and pretend they’re doing something, when all they’re doing is railroading people on flimsy evidence.

There is a similar thing going on at the University of Oregon with several black basketball players. They are suspended but there is not enough evidence for the prosecutor to charge them. The “victim” keeps changing her story and was still hanging around with the guys the next day. Oh well……… one victim group vs another victim group.

Let the games begin!

I admit I really don’t know all about this story….. I just catch parts while I wait for the weather report. I don’t really care about basketball or the University of Oregon so my statement of facts may be unclear, however that in itself should not disqualify me from commenting on any reputable blog.

There were a couple recent cases like this on the UW-Madison campus. Both cases involved lots of alcohol and in both cases the men involved were found not guilty. Drunken, consensual sex, yes, but not rape and/or assault. Morning after regret (or in the case above, 5 months!) does not equal rape. Also, both cases were tried in a legal court, not some campus body. I hope the guy in the above case gets lots of $$.

But now a new judicial ruling gives those wrongly convicted a powerful new weapon – they can sue the university, the employees who participated in the proceedings, and even the accused herself in federal court for substantial monetary damages and other remedies, notes public interest law professor John Banzhaf, who was twice called a “radical feminist.”

After a school tribunal at Saint Joseph’s University found a male student to have committed sexual assault arising out of an incident of allegedly consensual sexual intercourse, he took legal action, says Banzhaf, who has been successful in over 100 sex discrimination proceedings.

The federal court held that he was entitled to sue the private university under the state’s Unfair Trade Practices and Consumer Protection Law, and that he could also sue the university, university employees, and the female complainant for defamation (slander), with the court holding that their accusatory statements about him were not legally privileged.

    MouseTheLuckyDog in reply to Neo. | May 19, 2014 at 10:38 pm

    These seem to all be state “consumer protection” laws. Does that mean that an out of state student is not protected?

    Or is this technically insterstate commerce?

    Could raise a whole can of worms.

      Generally, the Deceptive Trade Practices or other Consumer Protection laws would apply equally to the benefit of any person who made a decision in reliance on a statement or assertion made by the University/College. It doesn’t matter where the “student” is from. The student is acting in reliance on the statement made by the College, which is situate within the State’s boundaries.

      Although there may ALSO be an “interstate commerce” claim to be made in ADDITION to any State law claims.

These schools have absolutely no business trying felony criminal cases as if they were disciplinary matters.

So let me see if I understand this. A female and a male student get drunk, and fall into bed together and have sex. But it’s a “crime” because the male student – who was blitzed himself – is supposed to be able to realize she’s also blitzed, and couldn’t give permission. Uh, why isn’t she supposed to realize he was blitzed and couldn’t give permission?

    malclave in reply to Mike Giles. | May 19, 2014 at 7:37 pm

    Women are clearly incapable of being responsible for their own decisions. The real blame falls on her father, or other male relative responsible for making decisions for her (unless she is married, of course, at which time responsibility for her decisions is transferred to her husband).

    Also, it goes without saying that women should not be allowed to drink, and provide alcohol to a woman should be a criminal offense.

DINORightMarie | May 19, 2014 at 6:45 pm

They either need to treat all accusations of sexual assault as crimes, and report them to the police; or, make a rule that all sexual activity between students is grounds for suspension and/or expulsion from the institution.

The promiscuous atmosphere of college campuses has gone wild, which inevitably will result in all kinds of real – and fake, or “morning-after regret” – accusations. Given that Pandora’s box is WAY open on sexual promiscuity (Sandra Fluke made that point quite clear!), for decades now, the former is impossible in our culture today to enforce – at least at a public institution.

Bottom line: sexual assault and rape are CRIMES, and should be treated as CRIMES. Having to go to the police, go through criminal prosecution and proving a case should eliminate many of these false, or “regret”, accusations.

While colleges certainly seem to be out of their depth here, I can’t really say that I have any great faith in the law enforcement or judicial systems to handle these things satisfactorily, either.

Rampant feminist sexism and PC infect and pervert government functions almost as severely as they do the campus.

MouseTheLuckyDog | May 19, 2014 at 10:49 pm

I have a couple of questions.
Guys, whatever happened to keeping it in your pants?
You keep it in your pants, a rape accusation is that much harder to prove.

Women, whatever happened to not letting anyone into your pants?
When you don’t let anyione into your pants, then it is so much easier to prove that you were raped. Also it eleminates more compromising opportunities for rape.

Oh hell yeah! Sue them into oblivion. Then make the rubble bounce.

MouseTheLuckyDog | May 20, 2014 at 12:56 am

BTW very appropriate “song of the day” for this story.

    Liberty in reply to MouseTheLuckyDog. | May 20, 2014 at 6:52 am

    Not only that, but Mr. Berry is a verifiable sexual pervert in having getting caught with closed circuit cameras installed in the women’s restrooms at one of his businesses. Why in the world Professor Jacobson honors this pervert with SONGS of the day is beyond me. What say you Professor?

healthguyfsu | May 20, 2014 at 11:54 am

As an FSU alum, I’d love to see an objective unbiased analysis of what you guys think of the DA report regarding the decision not to charge Jameis Winston.

Sorry, but it is meaningless for that sincere-sounding girl in the video to simply say “I was raped” when college feminists are explicitly using that term to refer to any persistent male effort to get a female to have sex, regardless of whether any force or threat of force is used, and the fact that she is NOT explicit that force was used makes the viewer strongly suspect that it was not, especially given that she didn’t report it.

Googling the girl’s name, Emma Sulkowicz, it turns out that elsewhere (not in the video) she has described her “rape” as forcible:

“When I was raped, I was screaming ‘no’ and struggling against him. It was obviously not consensual, but he was turned on by my distress.”

But why in the world would she think that Columbia, rather than the police, is the right body to deal with what she is alleging is a clear crime of a very serious nature? Has she never heard of the police?

And if she WAS “screaming no” in a campus residence there should have been witnesses. Are there? If not, that would be a good reason for the college to be skeptical and to side with the boy, even under the perverse “preponderance of evidence” standard.

“[o]ne panelist kept asking me how it was physically possible for anal rape to happen.”

So she consented to normal sex and then the guy put it in the wrong hole? Okay, she has serious grounds for complaint, but whether it is chargeable legally is another question.

Fits with her account: “I think many men see rape as kinky sex that went wrong. They say girls are confusing and it’s hard to tell when you’re supposed to stop.” Then she says that she was not giving confusing messages. She was very clear. She “was screaming no.”

If that is what happened, poor girl, and MAYBE if she gave the full details to the police they would agree that her not consenting to THAT KIND of sex made it a crime, but it is very different than not consenting at all.

A little consistency, please? I thought you guys believed in markets and freedom of association. If a private business doesn’t like a customer, shouldn’t it be able to stop doing business with that customer ? And if Columbia becomes known as a place that arbitrarily ends business relationships with students, won’t the market sort that out by making less people want to attend?

Not saying I agree with those arguments, but let’s have a little consistency please. Here we see the same people who have absolutely railed against Title IX enforcement actually applauding a Title IX case! And people who argue that businesses should be able to avoid doing business with homosexuals simultaneously saying that businesses should be forced to do business with students accused of rape.

Jacobsen: make up your mind: Title IX enforcement good or bad (or is it only good when done on behalf of men)? Freedom of association for private businesses good or bad (or again, is it good except when it causes discrimination against heterosexual men)? Consistency, please.