CINCINNATI -- As University of Cincinnati fights a graduate student's charge that he was railroaded by a sexual assault investigation, supporters and critics of colleges handling such cases internally are exchanging charges of bias.
An unnamed male graduate student has filed a federal lawsuit charging that his constitutional rights were violated when a UC panel found him guilty of sexually assaulting an unnamed female student. The man was suspended for two years.
The lawsuit seeks to have the suspension overturned and for the man to receive money for damages, including loss of reputation and future earnings potential.
"UC, encouraged by federal officials, has instituted solutions to sexual violence against women that abrogate the civil rights of men and treat men differently than women," the lawsuit said.
Mike Allen, a Cincinnati defense attorney and former Hamilton County prosecutor, wants the campus system abolished and for the criminal system to handle the cases.
"It was done to appease feminists on the college campus. And it is patently, blatantly unfair to the young men who get accused of these things," Allen said of campus investigations.
Nancy Chi Cantalupo, a Barry University assistant law professor with an expertise in the process, fires back that critics of a process meant to help victims of sex crimes are discriminating against women. She said critics don't contest the preponderance of evidence standard for other civil lawsuits not involving sex crimes.
"The fact that we treat sexual assault differently from other potentially criminal conduct is an indication that we are engaging in a certain amount of gender bias because sexual assault is a crime that (usually) affects women and gender minorities," she said.
The status quo
Campuses throughout the country conduct investigations and hold hearings on charges of sexual assault that are independent of the criminal justice system. Students can also report crimes to outside police.
But the two systems are radically different. In the criminal system, a prosecutor has to prove beyond a reasonable doubt that the defendant is guilty in order to win a conviction. Accusers generally testify and face cross-examination from defense attorneys.
If a defendant is found not guilty, prosecutors can't appeal or retry him because the constitution bars "double jeopardy."
A campus hearing seeks to protect the civil rights of the parties under the federal Title IX guidelines. With encouragement from the Justice Department in 2011, UC and many other institutions require that investigators prove that it's more likely than not that a defendant is guilty, a standard known as a preponderance of evidence.
An accuser is not required to testify at the hearing or to face the defendant's cross-examination. If the panel finds the defendant not guilty, the accuser can appeal and still win a conviction.
Those separate standards are held up as a travesty by some and a critical civil rights protection by others.
Cantalupo co-authored a white paper that defends the Title IX system and also an article that said using criminal standards like guilt beyond a reasonable doubt would violate victims' civil rights.
"Things like the preponderance of evidence standard are based in protecting equality," she told WCPO. "Courts from U.S. Supreme Court on down recognize that campuses don’t have to follow the same processes of law as criminal courts."
She said the same standards apply to cases of racial discrimination and other civil rights violations. Cantalupo doesn't think it's a coincidence that outrage is focused on sex crime investigations, which most often pit female or transgender victims against straight male defendants.
"If gender bias is involved with our legal system, then what better reason for a civil rights statute that is committed to gender equality to be addressing," Cantalupo said.
John Villasenor, a professor of public policy at University of California Los Angeles, said his research shows that the lower standards for finding guilt result in innocent students being convicted and their life paths damaged by the permanent blot on their record.
"I do not believe that colleges should be adjudicating guilt with respect to accusations of acts that constitute felonies," Villasenor told WCPO.
Allen grows animated criticizing the current system, including universities pursuing cases that prosecutors dismiss as lacking evidence, requiring questions be submitted in advance, and hiding the accuser from the defendant at hearings behind a curtain.
"The right of confrontation of witnesses is pretty damn basic," he said.
Allen said felony sex crimes should always be handled by professional police investigators and sent through the criminal court system.
"If the police determine that nothing happened, that ought to be enough. We don't need Title IX."
Cantalupo counters that criminal cases can proceed where appropriate without depriving victims of their civil rights as protected by Title IX.
"In general, the system does appear to be working in the sense of putting survivors and the accused on an equal playing field," she said. "Schools are doing an increasingly good job in implementing the equality objectives and protecting the rights of their students."