Rape on Campus: Balancing the Rights of Victims and the Accused

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Female student sadJudges and jurors in criminal cases have an obligation to presume the innocence of the accused until guilt has been proved. Other governmental institutions have a similar obligation when they take actions that affect the rights of someone who is accused of wrongdoing. The Constitution forbids the government from depriving anyone of life, liberty, or property without due process. At a minimum, due process requires the government to hold a fair hearing and to weigh the evidence fairly rather than assuming guilt.

Courts have concluded that students enrolled in a state-supported college or university have a property interest in their education. Students are therefore entitled to due process of law before being deprived of an education as the result of institutional discipline. They are also entitled to a remedy when their due process rights are violated. A recent example of how the government can be held liable for violating due process rights comes from the State of Montana, which has agreed to pay a former student quarterback $245,000 for violating his due process rights while investigating a rape claim.

The Montana Case

A student at the University of Montana accused Jordan Johnson of raping her while they were watching a movie at her home. Six weeks later, she obtained a restraining order against him. About six months after the alleged incident, Johnson was charged with sexual assault.

At the time, Johnson was regarded as an elite college quarterback. He was suspended from the football team after criminal charges were filed.

During Johnson’s trial, the accuser claimed that she and Johnson were making out on her bed with their shirts off when she said “no, not tonight.” She testified that Johnson stopped, but later had sex with her. She said that she resisted with her arms and knees.

The accuser sent a text message to her roommate, who was in the living room, in which she said “I think I might have just gotten raped.” The prosecution introduced the text message as evidence that a sexual assault occurred, while the defense used the uncertainty of “I think I might have” to cast doubt on whether she believed a rape had actually occurred.

Jordan testified that the sex was consensual. He told the jury that he stopped communicating with the accuser after they had sex because he wanted to date another woman. Jurors who commented on their not guilty verdict expressed doubt that Jordan knew the woman had not consented, even if she was not fully committed to engaging in intercourse with Jordan.

The University’s Investigation

The University of Montana conducted an internal investigation of the rape accusation that resulted in a recommendation to expel Johnson for violating the university’s code of student conduct. Johnson appealed the expulsion recommendation. It was upheld by university President Royce Engstrom but reversed after a further appeal to the state’s Commissioner of Higher Education.

The investigation came at a time when the University of Montana was under scrutiny by the Justice Department for failing to conduct adequate investigations of sexual assault reports lodged by female students. The defense in Johnson’s trial made frequent reference to the Justice Department’s investigation, suggesting that the decision to charge Johnson was a face-saving effort on the part of prosecutors who had been accused of ignoring allegations of sexual misconduct committed by student athletes.

Balancing the Rights of Victims and the Accused

Attorneys hired to represent the State of Montana maintain that University of Montana officials acted properly. They nevertheless agreed to pay Johnson $245,000 to settle Johnson’s claims.

The Washington Post reports that Jordan’s settlement “is just one of a slew of lawsuits nationwide in which young men have accused universities of erroneously and over-zealously clamping down on sexual assault.” More than 50 students have sued colleges or universities after accusations of sexual assault led to expulsions. The University of Texas and Brown University are among the institutions that have been accused of using students “as scapegoats to build a reputation for being tough on sexual assault.”

Efforts to crack down on campus sexual assaults are essential to the mission of providing a higher education to all students in a safe atmosphere. Many educational institutions have been too slow to encourage victims to report instances of rape and other unwanted sexual contact or harassment. For good reason, the Department of Justice has encouraged universities to be more vigilant in their investigation of and response to reported sexual assaults.

At the same time, state schools have a duty to honor the Constitution. Due process safeguards require a state school to give the accused a meaningful opportunity to confront and refute allegations of misconduct. Due process also requires the accusation to be evaluated by a neutral decision-maker, not by someone who has predetermined the guilt of the accused. Schools that put their image ahead of their students’ rights do a disservice to their educational mission.

Finding a balance between protecting the victims of sexual assaults and the victims of due process violations is not easy. But expulsion proceedings do not require the same degree of due process (such as proof beyond a reasonable doubt) that a criminal trial demands. State colleges and universities that do not prejudge accusations should be able to accommodate both the need to protect students from sexual assault and the need to protect students from losing an education due to unproven accusations.

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