2 High-Profile Cases Offer Glimpse of Future Trends in Campus Sex Assaults

Jim Wilson, NYT, Redux

One had just finished his first semester of college; the other was beginning his last. Both were accomplished athletes at prestigious universities who ended up making national headlines for the wrong reasons, when they were expelled for sexual assault.

The cases of Brock Allen Turner, a former Stanford University swimmer, and Jack Montague, a former Yale University basketball player, have other common elements. Each student was catapulted into the national news largely because he was able to afford top lawyers who vigorously defended him.

Mr. Turner’s lawyer helped him avoid a lengthy prison sentence despite being convicted of three felony counts of sexual assault for attacking an unconscious woman behind a garbage bin outside a fraternity party.

The judge’s decision to sentence him instead to six months in jail and three years’ probation outraged many people. It also led Michele Landis Dauber, a professor at Stanford Law School, to start a campaign to recall the judge, Aaron Persky.

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Mr. Montague’s lawyer fired off a lawsuit against Yale and two of its Title IX officials, contending that his client had been made a “whipping boy” for a university that previously had been criticized by the U.S. Department of Education over its handling of sexual-assault allegations. The Montague case galvanized those who accuse universities of being too quick to assume that accused rapists are guilty when the issues surrounding consent are murky.

Wendy Murphy, a lawyer who has helped students file federal sexual-assault and sex-discrimination complaints against several universities, sees another thread tying the cases together.

“Athletes are bred at the high-school level and even before that to expect special treatment and not to be held accountable,” said Ms. Murphy. “That’s especially true for white, privileged males at elite universities.”

Mr. Turner’s family members have taken exception to his description as privileged, saying they are by no means wealthy.

But advocates for sexual-assault victims point out the discrepancy between the handling of his case and that of Cory Batey, a black football star at Vanderbilt University who was also convicted of sexually assaulting an unconscious woman.

Mr. Batey, whose sentencing is scheduled for next month, faces a mandatory minimum sentence of 15 to 25 years. A second former football player accused in the Vanderbilt case, Brandon Vandenburg, was convicted on Saturday.

“It’s not surprising that the greater the sense of male entitlement, the larger the fight that’s likely to result,” said Laura L. Dunn, founder of a victims’-rights group, SurvJustice. “Taking sexual assault seriously means that people who look like Brock Turner and Jack Montague will be held accountable.”

Public and Private Cases

The two cases illustrate different ways sexual-assault cases can play out on campuses. Stanford quickly notified law-enforcement officials and conducted its own investigation within two weeks. In January 2015, Mr. Turner withdrew from the university under pressure and was banned from its campus.

Yale handled the Montague case internally, expelling the team captain in February as the Bulldogs prepared to compete in their first NCAA tournament in more than five decades.

Expulsion is becoming an increasingly common response for universities that are under the watchful eye of the Department of Education’s Office for Civil Rights, which is investigating nearly 200 colleges and universities for potential violations of Title IX, the federal gender-equity law.

In the past, campus panels might have suspended students, perhaps allowing them to leave and transfer to another college with an expunged record, but those panels are more wary of doing that today, said Peter F. Lake, a professor at Stetson University’s College of Law and an expert on Title IX.

“With any kind of sexual-assault or sexual-violence case, the presumptive punishment is now expulsion,” he said. “It’s almost a starting point in the discussion.”

That’s troubling to those who feel that colleges sometimes end up violating the due-process rights of people accused of sexual assault.

“Universities seem to be acting in ways that protect their self-interest rather than that of their students,” said Samantha Harris, director of policy research for FIRE, the Foundation for Individual Rights in Education.

Baylor University, whose powerhouse football team brings in millions of dollars in annual revenue, has a clear incentive, she said, to shield football players from punishment. Baylor’s failure to act on years of complaints about sexual abuse resulted in a scandal that engulfed the university last month and led to the ouster of its president and football coach.

For Yale, the financial fallout from a successful lawsuit by an accused student would pale in comparison to the hit it could take if the Office for Civil Rights found it had violated Title IX, some observers note.

The office has warned colleges and universities that failing to comply with Title IX could result in the loss of all federal financial support, although that penalty has never been imposed.

The 1-Percenters

Like most sexual-assault incidents, the Turner and Montague cases hinged on whether the women had consented to sexual activity, with each of the women insisting she hadn’t and each of the accused students saying she had.

But what set the Turner case apart at Stanford was the fact that the attack happened in public. It was witnessed by two graduate students, who chased down Mr. Turner on their bicycles and held him until the authorities arrived.

The victim, who delivered a searing description of the aftermath of the attack, was unresponsive and did not regain consciousness until hours later, the police said.

The alleged assault at Yale, which happened behind closed doors in Mr. Montague’s bedroom, is more typical of the cases campus authorities usually struggle to adjudicate.

The two had had sex before, according to his lawsuit, and she went to his bed willingly that night. No witnesses were there to say whether, as she contends, she pushed against his shoulders and told him she didn’t want to have intercourse.

The panel investigating the complaint concluded that it was more likely than not — the standard used in campus sex-assault cases — that she did not consent.

Mr. Montague joins a growing number of accused men who are suing universities that booted them out for sexual assault.

“Most cases that have been filed intersect around privilege,” said Brett A. Sokolow, president of the Ncherm Group, a consulting and law firm that advises colleges on sex assault and other issues.

“Of the 170-plus cases that have been filed against colleges, almost all were filed by 1 percenters,” he said, alluding to their affluence. Most students can’t afford to sue, just as most women who are attacked cannot afford legal representation.

While most Title IX challenges go nowhere, a case that proceeds with the right set of facts and finds a sympathetic judge could set an important precedent, Mr. Sokolow said.

“Once that first case is won,” he predicted, “a tidal wave will follow.”

Correction (6/20/2016, 10:40 a.m.): This article originally misidentified Samantha Harris, of FIRE, as Wendy Harris. The text has been updated accordingly.

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.