Two University of Michigan students sue over a campus rape case

Aug 25, 2017
Originally published on August 28, 2017 1:45 pm

Can the court enforce a school’s sanction for sexual assault? And did the University of Michigan deprive a student of his right to due process, when it found him responsible for that assault?

That’s what two separate lawsuits, both filed over the same sexual assault case, are asking this month.

A female student, who’s not being named by Michigan Radio, says she was raped at a frat party back in January.

At first, the school’s investigation ruled in favor of the accused male student. But that decision was overturned by the school’s appeals board.

Eventually, both students agreed to a resolution: the male student would withdraw from the University in June.

But this month, he sued the University of Michigan for lack of due process. His lawsuit also claims he should be re-enrolled this semester.

On Wednesday, the female student (filing as Jane Doe) released her own lawsuit – this one, against the accused student. She’s suing him for sexual assault and battery, and for breach of contract, claiming the resolution they both signed is legally binding.

Both suits show how lawyers – and the courts – are increasingly pulled into sexual assault cases on campus. They’re also putting the universities’ own processes, and the power of their decisions, under legal scrutiny.

The university’s decision: Investigation finds no assault, but appeals board overrules  

Jane Doe says she was an inexperienced freshman when she got drunk at a frat party in January 2016. One of the men in the fraternity gave her a shot of vodka in his room. They went back downstairs, started dancing, and ended up back in his room.

She says she was incapacitated, vomiting, and verbally told the male student she didn’t want to have sex.

Afterwards, she reported the alleged assault to the police and went to the hospital for a rape kit exam.

The accused male student, however, says she didn’t appear incapacitated at the party, and that she verbally consented to sex.

The University of Michigan’s investigator interviewed several witnesses, friends, and the two students themselves. The resulting 42-page report found that a “preponderance of evidence” (that’s the school’s standard for guilt or innocence) supported his claim that no sexual assault occurred.

The female student appealed that decision, and the university’s appeals board sided with her.

The accused student agrees to “voluntarily withdraw”

The male student says he was then contacted by a university administrator, who told him he had a choice at this point: He could agree to voluntarily withdraw from the school, or he could fight the appeals board's decision and risk an expulsion, which would be on his academic record.  

He claims the administrator made it clear that expulsion was almost certain, if he didn’t voluntarily withdraw.

At first, he says, he agreed, and included a personal statement saying he was being “forced” to withdraw:

“The fact that I am being forced to withdraw from the university is shocking and devastating to me. I am choosing accept the proposed agreement only because I have been told that if I do not choose to do so, I will likely be expelled."

But that statement invalidated his “voluntary withdrawal,” according to the lawsuit, and the administrator threatened to pull the offer of withdrawal.

After that, the male student sent the administrator an email agreeing to withdraw “freely and voluntarily and was not forced into that decision.”

In turn, Jane Doe agreed not to “press for the more severe sanction of expulsion,” her lawsuit says, in order to finally end “an emotionally exhausting process” with the knowledge that “the defendant would not return to campus.”

The first lawsuit: He claims lack of due process, wants to re-enroll 

On September 1 2016, the male student filed a lawsuit against the University of Michigan in federal court. The university violated his constitutional right to due process, it claims, and resulted in “an erroneous decision and a due process violation.”

The appeals board ignored the investigator’s evidence supporting him, his lawsuit says, and inaccurately applied school policies. What’s more, a member of that appeals board was allegedly biased against him (a claim the university's attorneys vigorously deny in their filings.)

“They took the … 43-page investigation and cherry-picked certain facts that made it appear that my client should have known she was incapacitated,” says the male student's attorney, Deborah Gordon. “Every single witness [the appeals board members] rely on, saw the [female student] after the [alleged rape.] We’re saying that that was a violation of my client’s due process.”   

Meanwhile, his lawsuit is also seeking a preliminary court order to let him re-enroll at the university while the case unfolds. He’s been offered a lucrative job, his lawsuit says, that’s contingent on his graduation from the University of Michigan. Graduating from a “Tier 2” school instead, would hurt his “academic and career prospects.”

The second lawsuit: She claims sexual assault and "breach of contract"

That’s what triggered the female student to file a lawsuit of her own on Wednesday.

“For the first time since that night, I was having days when I didn’t constantly think about it every minute of every day. I started being happy again and started being more myself. So I came into sophomore year very happy to have a fresh start,” she told Michigan Radio.

“But everything kind of threw out the door, when he decided to file the lawsuit against the university. My mom called me, and at first, I wasn’t really sure what that meant. But when I figured that he was trying to go back on what we agreed to … it just, blew my mind that he could do this [and] get back on campus."

She’s seeking damages for “sexual assault and battery, breach of contract, and other claims stem[ming] from the defendant’s assault on the plaintiff and his subsequent refusal to honor a contract he entered into…”

But the male student’s attorney, Deborah Gordon, says this is an “utterly frivolous, absurd” lawsuit designed to “defame” the male student. “I hate to say it, but I wouldn’t be surprised if he committed suicide,” Gordon says.

“I know there’s ulterior motives at play [from Jane Doe’s attorneys.]  She [Jane Doe] is apparently beside herself that my client is asserting his constitutional rights, and pointing out that this process was horribly, horribly flawed. And that he doesn’t want his life ruined. And they don’t like that.”

The female student, for her part, says she’s well aware that a court case like this could get nasty.

“If my story could help other people, like, I’m sorry, I’m going to get emotional about this. But if it could help other survivors who are in the same place? Just one would be worth going through this whole process. Because this needs to stop.”

A spokesperson for the University of Michigan says “we have nothing to add regarding the lawsuit you describe.” 

*Update August 25, 2017:

Editor's note: We decided not to name the accused male student, and the following statement explains that decision.

A couple of factors contributed to our decision not to name the accused.

News organizations generally withhold the names of alleged rape victims to avoid re-traumatizing them.

The same is not true for the people accused of sexual assault. And had the alleged perpetrator in this case been prosecuted in a criminal proceeding, we would almost certainly use his name. In a criminal proceeding, though, a prosecutor would have determined there was sufficient evidence to bring charges. That hasn’t happened in this case. As students at the University of Michigan, he and his accuser went through the school’s internal resolution process.

The accused claims that process was flawed, and he’s filed a lawsuit seeking readmission to U of M, claiming violations of his right to due process. As part of that lawsuit, he has successfully petitioned a judge to grant him anonymity in court documents.

Those two circumstances – the lower standard of proof used in university proceedings, and the fact that a judge has granted him anonymity in a case related to this story – factored into our decision. Still, the accused’s name is part of the public record in the alleged victim’s lawsuit for breach of contract and assault and battery, and we are linking to that complaint.

* Some items related to this case have been removed due to privacy. 

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