#HeToo: How the Campus Accused Fight Back in Court and Often Win

John Doe and Jane Roe met at a fraternity party. The two, both referred to with common legal pseudonyms, danced and drank. Then they went upstairs to John’s room, where they had sex. Two days later, Jane filed a sexual misconduct charge against John, contending that she had been too drunk to consent. John disagreed.

After several months of investigation, the University of Michigan found for Jane. John was forced to withdraw from the university, just 13.5 credits shy of graduating.

But then John took a step that is becoming more common among students who believe they have been harmed by tough policies aimed at combating campus sexual assault. He hired a lawyer and took the university to court, maintaining his innocence and charging the school had denied him even the rudiments of due process, specifically the right to question or cross-examine his accuser.

And in the preliminary legal skirmishing that has taken place so far, a federal appeals court thunderously rejected the university’s motion to dismiss John’s lawsuit.

“When it comes to due process, the ‘opportunity to be heard’ is the constitutional minimum,” Judge Amul Thapar wrote in a majority decision. “If a student is accused of misconduct, the university must hold some sort of hearing before imposing a sentence as serious as expulsion or suspension, and … that hearing must include an opportunity for cross-examination.”

Two powerful currents regarding sexual misconduct are clashing on campus. One is an intensified effort to prosecute the mostly male students accused of such misconduct – sustained by an Obama administration-inspired crackdown and the more recent #MeToo movement, and fueled by press reports about an alarming frequency of unpunished sex offenses.

The counter-current is the pushback from accused students, who are hiring lawyers to argue their clients were caught up in murky sexual situations but found guilty in what to amount mock trials that resulted in severe consequences.

Exactly how many cases have been brought is hard to determine. Experts say dozens of them have been filed in state courts, where there is no central repository of information, and scores more have been settled before they were decided in the courts.

The federal courts offer a more precise number, according to research by K.C. Johnson, a historian at Brooklyn College, and Samantha Harris, a vice president at the Foundation for Individual Rights in Education. Since 2011, 142 lawsuits by accused men have been brought in federal courts on which substantive rulings have been made, often regarding whether to dismiss or to allow the proceeding to move forward. Judges have found the universities at fault in more than half the cases, 77, while one produced a mixed result. The legal reasons were varied, including a failure to provide due process – that is, university disciplinary boards did not allow accused men open, fair hearings with an opportunity to cross-examine their accusers. In other cases, universities have been found in violation of their own rules and procedures.

In an ironic twist, judges have found in some cases that schools’ procedures were so weighted against accused men that their rights were violated under Title IX, the section of the Civil Rights Act that prohibits sexual discrimination. Title IX was devised mainly to protect women against discrimination; now at least some courts have ruled that the tendency of universities automatically to “believe women” amounts to gender discrimination against men.

The “sex police” at universities “are being hammered by an unprecedented wave of litigation, and higher education is losing,” according to a white paper by the National Center for Higher Education Risk Management, a for-profit consulting company. “If you are the sex police, your overzealousness to impose sexual correctness is causing a backlash that is going to set back the entire consent movement.”

Vice President Joe Biden at a sexual assault prevention rally at Ohio State University in 2015.

The wave of lawsuits also is an unintended consequence of the Obama administration’s efforts to respond to loud and widespread complaints that little was being done to address an “epidemic” of sexual assault on campus.

In 2011, the Department of Education’s Civil Rights Division sent a “Dear Colleague” letter to more than 7,000 colleges and universities that receive federal funding. The letter advised them to lower the standard of proof required to find a student guilty of a sexual offense from the “clear and convincing” standard commonly in use, to a “preponderance of the evidence” standard, meaning that an accusation need only be “more likely [true] than not” for an accused person to be found guilty.

The letter warned that the failure to adopt these guidelines could result in a Title IX violation, putting federal grants at risk. Noncompliance could also open schools to prosecution by the Department of Justice, and, in fact, the DOJ did open investigations of several dozen schools, including some that have been the targets of lawsuits by accused men.

The Obama guidelines were embraced by women’s groups and schools alike as a welcome effort, at last, to combat sexual assault. There were rallies on many campuses, anti-sexual violence campaigns such as “Start by Believing” and “It’s on Us.” Prominent figures, including Vice President Joe Biden, appeared at universities and endorsed these campaigns, as did many university chancellors and presidents. For example, at the University of Michigan, John Doe’s and Jane Roe’s school, President Mark Schlissel signed a “Start by Believing Proclamation” as part of a “National Sexual Assault Awareness Month.” This “ ‘flips the script’ on the message victims have historically received from professions and support people,” the movement’s websitesays, “which is ‘How do I know you’re not lying?’ ”

Meanwhile, new administrators were hired and procedures put in place to handle charges of sexual assault. The guidelines often encouraged review boards and investigators charged with looking into such allegations not to hold open hearings or to allow cross-examinations of female accusers for fear of humiliating or re-traumatizing them.

The problem is that the vast majority of accusations of sexual misconduct, like the one at the University of Michigan, involved behavior that was witnessed only by two people, the accuser and the accused. In most cases the two parties were under the influence of alcohol or drugs at the time, and each had different versions of what took place. If the accuser is assumed to be telling the truth, the accused must be assumed to be lying, which is at odds with the concept of the presumption of innocence.

These circumstances are at the heart of the legal backlash driven by accused students who claim their schools rushed to judgment against them, violating their rights as they did so, to satisfy demands for aggressive action against sexual violence.

 Education Secretary Betsy DeVos rescinded Obama guidelines, but schools still follow them.

The backlash could gain some support from Secretary of Education Betsy DeVos’s move last year to rescind the Obama guidelines and allow schools to return to “clear and convincing evidence” as the standard of proof. So far, few schools seem interested in changing policies. And there doesn’t seem to be a vigorous national effort to reform the system.

As a result, pushback is happening on a case-by-case basis, and it isn’t going away. “I’m getting as many calls as ever,” said Andrew Miltenberg, a Manhattan attorney who has sued some two dozen universities over the past few years on behalf of male students.

The backlash is not surprising, given the stakes. “These guys find themselves expelled,” said Deborah L. Gordon, a Michigan civil rights lawyer who represented John Doe in his suit. For a young man to be expelled from a university, moreover, means not getting a degree, losing the tuition he’s already paid, and having the label of sexual offender placed on his permanent record. “So, gradually these cases have been making their way through the courts,” Gordon said, “which have mainly been affirming the due process rights of the accused.”

Andrew Miltenberg, counsel for campus accused.

Miltenberg himself came to public attention a couple of years ago when he invoked Title IX to sue Columbia University on behalf of Paul Nungesser, who was accused of rape by a fellow student and cleared by the school. Nungesser argued that the school discriminated against him because it allowed his accuser to carry a mattress around campus for a year to protest the university’s decision not to prosecute the case. Miltenberg won a confidential settlement for his client in that case.

After that, Miltenberg filed a suit against Vassar College for a Chinese student he believed was falsely accused of sexual misconduct. Miltenberg lost that case, but gained attention. “People started calling from left and right,” he said. “There was an underground culture of parents whose kids had gone through this.” Recently his firm opened an office in Boston to be in an area thick with colleges and universities.

Miltenberg said schools have been ill equipped – both structurally and ideologically – to deal with sexual abuse cases.  “In 2011 and 2012, when the Dear Colleague Letter came down, most universities didn’t have Title IX coordinators,” he said. “Most conduct review boards were set up for things like plagiarism, cheating, or throwing a lamp while under the influence.

“Mattress Girl” Emma Sulkowicz, center right, at her Columbia graduation. She was sued by the man she accused.

“When the universities saw the uproar about sexual assault,” he continued, “what did they do? Did they hire retired FBI agents or police detectives to carry out Title IX investigations? No. They turned to people whose backgrounds are either in victim rights, or domestic violence, or they’re women’s rights advocates, people who have led campaigns to be tougher on sexual assaults. These are not the people who should be investigating and adjudicating these matters.”

Miltenberg’s recent filing against the University of Colorado, Boulder, contains the basic elements of many of his cases. A freshman from Italy, Girolamo Francesco Messeri, and a male friend met two girls one night, neither of whom were students at the college. The four ended up in the boy’s dorm room, where Messeri and one of the women began making out. For less than five minutes, the pair went into the bathroom where, according to Miltenberg’s complaint, she performed oral sex on Messeri.

Two days later, the woman went to the campus police and accused him of a forced sexual encounter. On that same day, according to Miltenberg, Messeri was expelled from his dormitory and forced to live in a hotel, on the ground that he posed a danger on campus. Two months after that, a pair of investigators for the Office of Institutional Equity and Compliance issued a “finding” that Messeri was responsible for “sexual assault.”
But according to Miltenberg, the investigators did not hold a hearing and never even interviewed the accuser, relying instead on interviews conducted by the campus police.

Messeri’s friend testified that the female student seemed unruffled and unbothered when she emerged from the bathroom; she also, the complaint says, continued to spend time with Messeri, later went to a party, smoked marijuana, and mugged for the camera as she took selfies with her friend. But the university investigators gave credence only to the friend of the accuser, who supported her allegation. Later, the criminal case against Messeri was dismissed on the recommendation of the Boulder district attorney. In the meantime, however, the university’s Title IX coordinator, Valerie Simons, informed Messeri that he was being expelled.

“CU-Boulder’s investigation and adjudication of Jane Roe’s allegations were tainted by gender bias resulting from federal and local pressure to protect female victims of sexual violence,” Miltenberg’s complaint reads. “… As a result, Plaintiff was deprived of a fair and impartial hearing with adequate due process protections, as mandated by the United States Constitution.”

A CU-Boulder spokesman did not respond to a request for comment.

The case against CU-Boulder has yet to be heard in court, but in a large number of similar cases, the courts have been sympathetic to the due process complaint. According to the tabulation made by Johnson and Harris, since 2011 the federal courts have allowed 21 cases claiming due process violations to proceed following university attempts to have them dismissed.

An example was a case brought against Ohio State University. In November 2014, Jane Roe, a female medical student there, accused a fellow student of sexually assaulting her during an encounter that had occurred 10 months earlier. Jane said that she had been too drunk to be able to give her consent, which was a violation of the university’s code of conduct. John Doe claimed that Jane, with whom he had had sexual relations for over a year, was alert and talkative during the encounter and that the sex was consensual.

A university Conduct Board Hearing sided with Jane, and John was expelled before he could complete his fourth and final year of medical school.  He was also forced to leave his job as a registered nurse at the university’s Wexner Medical Center.

But there were some odd aspects of the case seemingly ignored by the university. Most important, it turned out that Jane filed her complaint a few days after she had received a notice from the university that she would have to  withdraw because of failing grades. This decision, however, was rescinded when she told a review committee that her poor academic performance was due to the sexual assault she had suffered. In other words, it would seem that Jane might have had a motive to fabricate a charge of sexual assault. John, however, had been informed of none of this, the court found, and it was therefore impossible for him to “effectively cross-examine Jane Roe on a critical issue: her credibility, and specifically, her motive to lie.”

In rejecting the university’s motion to dismiss John’s suit, the court said that “universities perhaps, in their zeal to end the scourge of campus sexual assaults, turned a blind eye to the rights of accused students. Put another way, the snake might be eating its own tail.”

Lack of due process is one way courts have decided for plaintiffs, but there are other ways as well. In 26 cases, according to Johnson and Harris, courts have found universities in breach of contract, meaning a failure to follow their own published procedures, or procedures that were inherently inequitable.

In a 2017 suit against the University of Notre Dame, a judge barred the school from taking action, pending a full hearing, against a student being expelled after being accused by an ex-girlfriend. The judge in the case found that the university’s procedures were “arbitrary and capricious in a number of respects,” among them a refusal by the school’s hearing panel to consider text messages and phone recordings that, in the judge’s words, “seriously undermined Jane’s testimony at the hearing.”

What about the considerable number of cases, 64, that have gone in favor of universities? In seven of them, lower court rulings favorable to universities seemed to have been undermined by later appeals court rulings, but had not been formally reversed. In 18, rulings were made on some grounds other than the actual merits — for example, that the accused student wasn’t able to show that enough harm had been done to him to justify going to court. In another 23 rulings, courts found that they should not be overruled even despite procedural flaws, since the school’s findings against the accused seemed accurate. In only sixteen of the cases did judges rule in favor of the universities after the accused student raised serious questions about the guilty finding against him and the fairness of the process.

In a suit brought against Purdue University, for example, a judge found that the male plaintiff had no “property interest” in his education at Purdue, and therefore the due process protections of the 14th Amendment didn’t apply.

Still, the number of cases that have gone favorably for them has led some lawyers and analysts to believe that new case law is being made, especially in reaffirming the legal necessity for men facing expulsion to have the right, at the very least, to question the women accusing them.

But Miltenberg is cautious. “We have achieved some very good results, and progress towards transparency, equity and due process are being made,” he said. “But there is still a long road ahead until we can have confidence in the campus disciplinary process and the manner in which courts are interpreting Title IX.”

Believe the Victim

Help Protect Fairness and Due Process. Volunteer and Vote.

Never before have we witnessed such attacks on fairness in our legal system — “Start By Believing,” “#MeToo,” “Believe Survivors,” and the other empty cliches of the due process deniers. All this despite the fact that a strong majority of Americans support due process on campus:

One week from today will be the November 6 elections. Some candidates are openly supporting fairness, others not.

This may be the most important election in our lifetimes. SAVE urges you to get involved in the political process — attend rallies,  ask candidates where they stand on the issues, become a campaign volunteer, and most importantly, vote for the candidate of your choice.

Because some races will come down to just a few votes either way.


The SAVE Team


Cornell pays accused student $125,000 to settle double-jeopardy suicide lawsuit

It will pay attorney’s fees as well, once they are assessed


Title IX proceedings sometimes traumatize accused students so much they attempt suicide.

This happened to a male student at Cornell University, who formally accused his sex partner of sexual and physical assault before she filed a Title IX complaint against him.

Cornell judged “James Doe” responsible based on the testimony of his accuser’s non-eyewitnesses; redacted information from Doe’s complaint, without his permission, that contradicted his accuser’s testimony; and refused to investigate his allegations, he claimed in a federal lawsuit.

Though Doe won an appeal of his temporary suspension, another official resurrected the charge with no warning – after he’d been diagnosed with “severe anxiety and major depressive disorder.” He attempted suicide the same day.

MORECornell refused to investigate female student’s alleged rape of frat member

A year and a half later, Cornell and Doe have reached a settlement where the Ivy League university will pay him $125,000 to drop the litigation. This is before attorney’s fees, which have yet to be assessed and which Cornell will pay to Doe’s lawyers once the judge approves them.

Brooklyn College Prof. KC Johnson, who closely tracks Title IX litigation, says the settlement occurred before the presiding judge had handed down any order.

Cornell’s options for responding to the suit were limited from the start because of its federal appeals court, Johnson told The College Fix in an email. It could have filed a motion to dismiss, “but it would have had no chance of prevailing” under the 2nd Circuit’s precedentagainst Columbia University, which involved similar factual allegations.

Syracuse University and Hobart & William Smith College, both in New York, learned this the hard way when their motions to dismiss in similar cases were rejected, Johnson said. The 2nd Circuit precedent is also why Yale has not attempted to dismiss the high-profile lawsuit by its former basketball team captain, Jack Montague.

“Several months of the Cornell case were consumed in mediation, though the case technically was pending throughout,” Johnson said.

Andrew Miltenberg, attorney for Doe, told The Fix he couldn’t immediately explain the action in the case since its filing a year and a half ago.

MOREJudge says Cornell ‘directly contradicted’ policy by not investigating male claim

MOREStudents tell the feds Cornell is botching sexual-assault investigations

MORECornell refused to investigate male’s rape claim against female

Read Fix coverage of the Doe lawsuit.

Believe the Victim False Allegations

Just Days After Cornerstone Caroline Incident, EVAWI Doubles Down on ‘Victims’

A few days ago, a woman known as “Cornerstore Caroline” called the cops on a 9-year-old boy for allegedly sexually assaulting her. But the surveillance video revealed the boy’s backpack accidentally and momentarily grazed her buttocks — there was no assault:

The video went viral, and incident has provoked a national debate on the problem of false allegations. Part of the problem is the careless habit of referring to complainants as “victims.” A person does not become a victim until a legal adjudication is conducted and the accused is found guilty. Until then, the accuser is only a “complainant.”

Despite that fact, a group known as End Violence Against Women International just put out a Training Bulletin with the misleading title, “Interviews With Victims and Suspects.”  To boot, EVAWI claims “victims” have long faced “unwarranted” skepticism — seemingly unaware that its own distortions may be contributing to the skepticism. See

Hey EVAWI, what’s going on? (509) 684-9800.


The SAVE Team


Due process reflects human nature and it is our best chance for fairness

According to a recent Reason headline, proposed changes to the Department of Education’s (DOE) Title IX require “due process protections…for individuals accused” of sexual misconduct on campus.  A CNN article on Kavanaugh-accuser Christine Blasey Ford states, “#MeToo is not revenge: It is a timely search for due process” for accusers.

“Due process” is a battle cry throughout the news and across campuses. Conservatives demand due process for those accused; the left insists upon it for accusers. The term is not a weaponized talking point, however; it is a principle of justice.

What is due process? Why it is essential to justice?

In common parlance, due process is the fair treatment that every individual deserves from law enforcement and the judiciary. Accusers should be heard without bias; defendants should be judged on the evidence and through unbiased procedures. In America, the legal meaning of “due process” derives from the common law tradition, the Bill of Rights, laws and court precedents. The protections include “innocent until proven guilty,” the right of cross-examination, legal representation and transparent proceedings.

Because the protections apply to defendants, however, due process is often said to obstruct justice for accusers. Thus, the pendulum swings far in the direction of protecting an accuser. Campus hearings are an example. They stress the need to believe an allegation, which is captured by the phrase “believe the woman” because women reputedly do not lie about sexual assault. Campus hearings invert due process protections. The defendant is guilty until proven innocent; he is denied legal representation and the right of cross-examination; standard rules of evidence are abandoned.

But automatically believing an accuser devolves to abandoning the judicial process altogether. If an accusation is automatically true, then there is no need for investigations or courts to uncover the facts. #MeToo-style public “prosecutions” are a large step in that direction; accusations are tried in the court of human opinion, where they are immediately believed. The accused people are guilty before a trial or any other unbiased investigation.

“Believe the accuser” runs up against human nature. People are not only fallible, but they also capable of bad behavior, such as lying.

Due process acknowledges that accusers can be mistaken, confused, or lying. It attempts to separate evidence from error and malice in order to judge an accused on the former. This is especially important for cases in which a guilty judgment can ruin a person’s life. Third parties — judges, juries, the public — simply cannot know the truth without facts that are evaluated by reasonable standards, such as placing the burden of proof on the person making an accusation.

The dynamic is not an indictment of an accuser who may be honestly wrong about an identification or other key evidence. It happens with some frequency. The mission of the Innocence Project is “to free the staggering number of innocent people who remain incarcerated,” mostly due to errors.

The organization has freed “more than 350 wrongfully convicted people based on DNA.” Confusion is also a large factor, especially in cases involving drugs or alcohol. Differing interpretations can lead to plausible “she said/he said” scenarios through which objective third parties need to sort.

Some allegations are also lies, of course. In a recent Connecticut case, Nikki Yovino was sentenced for falsely accusing two student football players of rape. One of the accused stated, “I lost my scholarship, my dream of continuing to play football and now I am in debt $30,000.”

Western jurisprudence, especially due process, is organized around the reality that people can be mistaken or lie. That’s why a defendant is presumed innocent until proven guilty, with the burden of proof falling to the accuser. The right to face an accuser means an accuser must stare a defendant in the eye, which removes the anonymity through which lies flourish.

The necessity of due process is often contested on the grounds that false allegations are rare. What is the rate? No one knows for sure, but early FBI sources place the rate of false accusations at about 8 percent. Even if it is far lower, however, every defendant deserves a fair trial. Statistics do not alter the fundamentals of justice.

It must be noted: Accusations in the news or on campus are not criminal cases in which due process is mandated. That is true. But traditional due process applies to criminal rather than civil cases or procedures for a reason: criminal procedures have a huge potential to destroy people’s lives in a manner that cannot be remedied. The same is true of cases in the court of public opinion or other unofficial hearings. The “guilty” can lose the accomplishments of a lifetime, with no chance for redemption. “Guilty” students can lose their futures; they are expelled and their records tagged in a way that prevents them from enrolling elsewhere, receiving licenses, or pursuing many desirable professions.

Accusers must be heard. But they should embrace due process and invite a clear spotlight to be shone on every claim they make. The worst barrier to belief for an accuser are false charges brought by others in the past; the public remembers. By contrast, every time an accusation is treated seriously enough to be objectively assessed, the path of the next accuser — female or male — becomes easier.

Wendy McElroy is a research fellow at the Independent Institute and the author or editor of nine books on women’s issues, government and liberty.

False Allegations

Is It Time to Punish False Accusers?

Should deliberately false reports of sexual assault be subject to the same legal penalties as false reports of other felonies? Right now, accusers who lie about sexual abuse are criminally liable for filing a false report and perjury, as well as civil sanctions for defamation, but legal consequences rarely occur.

The question was spotlighted by the accusations surrounding Supreme Court Judge Brett Kavanaugh. It was clear during Kavanaugh’s confirmation hearing: An accusation of sexual assault can devastate a man’s life, family and future. Those who reject the account of his main accuser, Christine Blasey Ford, don’t suggest bringing legal proceedings against her. A sincere report of sexual abuse should not be penalized for being confused or mistaken.

Jeffrey Catalan and Julie Swetnick are different stories; in the wake of Ford’s accusations, Catalan and Swetnick claimed to have witnessed sexual abuse by Kavanaugh; Catalan quickly recanted. But the chairman of the Senate Committee that presided over Kavanaugh’s hearing has asked for an official review of the claim as a possible crime. In a NBC interview Swetnick contradicted a sworn statement to the Committee, which had implicated Kavanaugh in gang rapes. Harvard law professor emeritus Alan Dershowitz has called for Swetnick to be investigated and then prosecuted for perjury, if appropriate.

The debate on how to handle blatantly false accusations of sexual abuse has re-opened. Feminists argue that punishing any accuser chills the willingness of victims to come forward. Rule-of-law advocates counter that false accusations are not victimless crimes. In most cases a real person is named as an attacker and he or she confronts severe consequences. Genuine victims are also damaged by false allegations. Every lie casts a shadow of doubt over every future report of sexual assault. So legal disincentives should attach to the act of lying not merely to protect those falsely accused but also to encourage real victims to make reports.

False accusations on crime are everyday events 

The danger of using the Kavanaugh hearing as a springboard for discussing false accusations is threefold: the session was highly politicized, with unrelated agendas attached; it was played out in the Senate, with the Supreme Court as a backdrop; and the true context of false accusations in everyday life may be lost. False accusations are not partisan, elite, or recent occurrences.

The recent re-evaluation grows out of a backlash that has raged on college campuses for over seven years. At some universities the battle has been much longer. In 2011, President Obama’s Department of Education’s Office of Civil Rights sent a letter to every college that received federal funding. To continue the flow of funds colleges needed to dilute the due process that on-campus hearings offered to students accused of sexual misconduct.

The purpose: To combat sexual misconduct and to protect victims who were overwhelmingly female. Accused students were denied legal representation and the presumption of innocence, as well as standard protections of justice such as facing an accuser and questioning witnesses. As a matter of policy, accusers were to be believed.

As a result, false accusations increased — at least, that was a widespread assessment. Legal experts signed petitions in protest; lawsuits proliferated from students who had been found “guilty;” high-profile cases of false accusations rocked the media.

Finally, new Title IX guidelines were recently drawn up by the DOE’s new administration and they will be unrolled shortly. The guidelines direct colleges to restore due process rights to students accused of sexual misconduct.

The human cost of false accusations

Petitions and guidelines do not capture the human suffering that caused a rebellion against the imperative to #BelieveWomen. For that real stories are required. Consider the Flood family of Pennsylvania and their teenage son, whom the media identifies as T.F.

According to a local newspaper five girls at T.F.’s high school “terrorized” him with accusations of sexual molestation. T.F. was fired from his part-time job, “tortured in school by the other students and investigators,” expelled and “forced to endure multiple court appearances, detention in a juvenile facility, detention at home, the loss of his liberty and other damages.”

Finally, the girls confessed to lying. Why did they? One explained, “I just don’t like him…I just don’t like to hear him talk…I don’t like to look at him.” The girls have not been punished. Meanwhile, the boy is under the care of a psychologist and being schooled at home. Devastated by the experience, his parents are suing.

The Kavanaugh hearing brought the question of false accusations into people’s living rooms. That’s where the issue belongs because average and disadvantaged people need due process far more than the elite of society.

Average people have fought through centuries to gain and maintain these protections against imperious government and bad actors. The protections benefit both men and women because they stand in defense of common people. No sincere accuser, mistaken or not, should have anything to fear from impartial justice. But no intentionally false accuser should be able to bypass the protections of justice in their own self-interest.


#BelievetheWomen is the culmination of a push that began decades ago to achieve much-needed reform within the justice system. In the 1960s feminists crusaded against rape laws that brutalized women by treating them as though they were responsible for their own assaults. They weren’t and they aren’t, but the reform has gone too far. It is not an insult to ask for evidence when a crime is alleged. It is a sign of taking the accusation seriously and that’s what feminists crusaded for in the first place.



Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings

Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.

In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.

The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:

  • “Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”
  • “[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
  • “[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)

Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.

Press Release Sexual Assault Sexual Harassment

Milestone Award in Maine to Compensate Victim of Prosecutorial Misconduct


Contact: Rebecca Stewart

Telephone: 513-479-3335


Milestone Award in Maine to Compensate Victim of Prosecutorial Misconduct

WASHINGTON / October 2, 2018 – In a first for Maine, the state has agreed to compensate a victim of prosecutorial misconduct. Last week it was announced that the state will pay Vladek Filler a settlement of $375,000, arising from the misconduct of former Hancock County Assistant District Attorney Mary Kellett, police officials, and others.

In 2007, Ligia Filler alleged she was a victim of marital rape. Ignoring exculpatory evidence, ADA Kellett prosecuted Vladek on several counts of sexual assault. Filler was convicted of assault, but was cleared of the rape charges made during a divorce and child custody battle. Eventually, the assault charge was also dismissed.

In 2011, SAVE filed a Grievance Complaint against Kellett with the Maine Board of Overseers of the Bar alleging improper withholding of evidence and other misconduct. On May 12, 2011, SAVE held a press conference at the Penobscot Judicial Center in Bangor (1).

The complaint was investigated and eventually referred to the Maine Supreme Court, which ruled against the prosecutor in 2013. Mary Kellett issued a public apology and was required to attend ethics training. She later resigned her position.

In 2015, Vladek filed a civil rights lawsuit against Kellett and other parties. The lawsuit against a nurse who coached Ligia to cry during testimony to make her claims more credible  is still outstanding (2).

More information on Vladek Filler’s exoneration is available from the National Registry of Exonerations (3). The legal documents of the lawsuit are available online (4).

October 2 is Wrongful Conviction Day (5).



SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and sexual assault: