I-Team: Colleges caught in crossfire of sex assault cases, balancing women's rights and due process

CINCINNATI -- Both men and women are suing local universities, claiming the system is rigged against them in sexual assault cases.

On one side: Two federal lawsuits filed by men allege local universities caved to pressure from the federal government, media and campus groups. They argue they're victims of a biased system.

"If you have the mindset that the person who is accused of misconduct is not innocent until proven guilty, you're much more likely to find them responsible or find them guilty," civil rights attorney Joshua Engel said.

On another side: Advocates for sexual assault survivors say that's untrue and misses the point. Women were treated with suspicion for so long they're hesitant to come forward, they say. And, they argue, universities aren't required to presume a student's innocence.

Grace Cunningham, a rape survivor and student activist, said UC declined to pursue her assault case and discipline her alleged rapist.

"The university isn't taking it seriously," she said.

Colleges and universities now are caught in the middle of these two sides: Victims say universities aren't doing enough to protect them, and suspects say they aren't allowed due process.

Colleges are bound by Title IX, a federal law that prohibits discrimination -- including sexual harassment, rape and sexual assault -- on the basis of sex in any federally funded education program or activity. Under the law, universities can be held responsible if they fail to protect students from sexual discrimination.

From 1997 to 2013, women ages 18 to 24 consistently experienced higher rates of rape and sexual assault than women in other age brackets, according to the Bureau of Justice Statistics.

Cunningham said UC still isn't doing enough. Last year, she and other protestors provided a list of 10 demands to UC, including campus-based peer advocacy, mandated consent curriculum and mandated training. She said UC doesn't provide those.

"They're not doing what they need to do," Cunningham said.

UC has added resources and staff, including two Title IX investigators and two program coordinators to provide education and interim measures.

University Spokesperson Greg Vehr released the following statement: 

In responding to reports of Title IX violations, the University of Cincinnati focuses on the well-being of our entire university community and makes every effort to provide an equitable process that respects everyone’s rights and accommodates their needs. We continually monitor developments in this area and work to enhance the support and resources we offer where appropriate. Due to federal confidentiality requirements, we cannot address the specifics of any individual case. Our goal, as an educational institution, is what's best for all our students in terms of safety, equity, and support.

...The university continues to strive to create the best environment it can for all of its students. The University’s disciplinary process is one part of those efforts, but it is often more reactive than proactive. In order to continue striving to create the best educational environment for everyone, we must also focus efforts on how we can prevent these events from occurring at all. One proactive effort is to continue spreading the word on creating a culture of consent, which we hope the public’s attention to these issues will help. The safety and well-being of all the members of the university community is paramount.

Engel argues the scales have tipped too far to one side and that schools now discriminate against students accused of sexual misconduct simply because they're men. Earlier this month, Secretary of Education Betsy DeVos said the way colleges handle sexual assault is a "failed system," with confusing and elaborate guidelines. She promised change.

That's too late for some men, Engel said: They've already suffered lost time and damaged reputations.

He represents one man suing Miami University and another suing the University of Cincinnati. Engel said he's filed dozens of similar lawsuits around the country on behalf of students he claims were falsely accused of sexual assault and weren't given due process through Title IX investigations and disciplinary hearings.

"I honestly believe that nationwide, the University of Cincinnati has one of the worst reputations," he said.

An interview with the News Record, UC's campus newspaper, UCPD's special investigative unit gives insight into how the school investigates cases of sexual assault, sexual harassment, stalking and domestic violence:


College disciplinary panels -- the people who act as judges and juries -- aren't qualified, either, Engel argued. He says they have little to no training on how to properly handle sexual assault investigations.

"These are special and very difficult cases, and to ask the exact same people who have hearings over whether someone had a beer in their dorm or committed plagiarism to decide these difficult cases -- it's just inappropriate," he said.

 

Engel argues that Cunningham's group encourages UC to believe what alleged victims say, no matter what any investigation or hearing finds. And he said the Obama administration may be partly to blame for schools bending to that kind of pressure.

In an April 2011 letter sent to thousands of colleges and universities nationwide, the Department of Education's Office of Civil Rights threatened to withhold federal funds unless those schools dealt with sexual violence on their campuses. It also told schools they wouldn't be in compliance with Title IX unless they adopted a relatively low burden of proof in cases involving sexual assault.

Instead of being asked to show "clear and convincing evidence" an assault had occurred, Obama's Education Department told schools they only had to decide whether it was "more likely than not."

"The result is that schools treat male students accused of sexual misconduct with a presumption of guilt," Engel's lawsuits allege.

READ the Department of Education's letter.

The Dept. of Education adopted these changes in response to statistics that said 99 percent of sexual assailants walk free -- either because charges are never brought against them or they're not found responsible.

The feds also told colleges and universities not to wait on the outcome of a criminal case before starting their own investigation: Title IX protects students from unwanted sexual advances, the letter says -- regardless of whether the alleged action is a crime.

At the University of Cincinnati, Jennifer Schoewe alleged Tyler Gischel assaulted her two years ago. Both were intoxicated. Schoewe says her memory of the incident was hazy.

Now Gischel alleges Schoewe assaulted him, too.

 

The WCPO I-Team obtained university records that state the students had sex on the night of Aug. 22, 2015 or early the next morning. Schoewe first reported the alleged assault to UC's Title IX office two days later. The next day, the University of Cincinnati Police Department launched a criminal investigation.

Schoewe and Gischel got a notice of her report on Sept. 18 -- 24 days after she went to the Title IX office. Gischel said he believed the sex was consensual. He denied forcing her to do anything.

According to Gischel's lawsuit:

  • They were at a party that night, and Schoewe was kissing him.
  • They held hands as they walked with a group to get pizza.
  • While walking or outside the pizzeria, she grabbed his genitals without permission.
  • She later insisted on going to his apartment.
  • Both walked up two-and-a-half flights of stairs without help, and kissed at the top of the stairs.
  • He asked her, "Are you sure?" and she replied "Yes." They had vaginal intercourse.
  • He asked her again during intercourse if she was sure, and she said yes again. At one point, she was on top of him.
  • He walked her downstairs, but she said he didn't have to walk her home because she was going to another party.
  • Schoewe either went to another party two to three blocks away or went home by herself, without help.

Schoewe recalled the night differently, saying she didn't remember much of it at all.

"I could feel everything, but I didn't have the strength or energy to push him off of me or resist at all," she said. "I just remember wanting to go to sleep and hoping and praying I was asleep and this was just a nightmare."

Earlier that evening, witnesses said she was stumbling, confused and slurring her speech. Schoewe woke up the next day in her own apartment. She said her underwear was missing, and that she had pain in her pelvic area.

But Gischel alleges Schoewe became embarrassed at what she'd done.

According to his lawsuit, she claimed she hadn't drunk enough to black out, but a toxicology report found no date rape drugs in her system. Gischel alleged the witnesses were inconsistent and contradictory, and that Schoewe at one point claims she couldn't remember anything from 9:30 p.m. onward, then said it was 11:30 p.m.

Gischel alleges the detective didn't tell him that Schoewe grabbing his genitals was sexual assault, and that he could file a Title IX complaint against her for it. His lawsuit also alleges UC violated the Violence Against Women Act and Clery Act because they didn't tell him had the right to an "advisor" during his interrogations. 

UC suspended Gischel in October, once a grand jury indicated him criminally on a count of sexual battery. Schoewe said she wished that had happened sooner.

She told the I-Team she wanted UC to "get him out of here" because she didn't feel safe going to class. Title IX expert S. Daniel Carter, who reviewed the case records at WCPO's request, said UC might have violated Schoewe's rights by not promptly addressing her fears.

RELATED: Is University of Cincinnati responding quickly enough to sex assault cases?

A judge later tossed out the sexual battery charge.

With the sexual battery charge dismissed, Gischel had it expunged from his legal record.

"This case never should have been brought, period," said Rich Goldberg, Gischel's defense attorney in the criminal case.

If the case had gone to trial, prosecutors would have had to prove beyond a reasonable doubt Gischel was guilty. That wasn't the case for UC's disciplinary hearing held in March 2016, his lawsuit alleges: UC relies on the lower burden of proof because it's bending to the wishes of the federal government.

Both he and Schoewe submitted questions to the hearing chair, who can decide which are asked. Gischel's lawsuit alleges the hearing chair asked most of Schoewe's questions, but wouldn't ask Gischel's questions about the detective's conduct or those designed to explore credibility flaws in Schoewe's claim she was incapacitated.

The hearing lasted two hours. Gischel was expelled.

Carter said he thinks UC handled the overall investigation correctly, though not swiftly enough.

"There are some concerns about how long it took to resolve the matter -- over 200 days, when the Department of Education recommends about 60," Carter said.

Gischel blames the Department of Education for UC's decision against him: At the same time UC was working on its disciplinary case against him, Gischel alleges, the Office of Civil Rights the school because Schoewe complained it wasn't doing enough about her case. That timeline, Gischel claims, motivated UC to take action against him even if he'd done nothing because administrators feared losing federal funding.

In his lawsuit, Gischel accuses UC and its staff of deliberate indifference, violating of his Fourteenth Amendment rights to due process and equal protection, malicious prosecution and violating his Title IX protections. He wants UC to expunge his student file of all information related to Schoewe. He's also seeking attorney's fees and other costs incurred pursuing his case, and any other relief the court finds appropriate.

Schoewe also filed a lawsuit, alleging UC has violated her rights and didn't provide her the protections she's afforded under the law.

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