It no longer seems to matter what the woman involved in a sexual encounter says. Schools are so hell bent on proving to the federal government that they take sexual assault accusations seriously that they'll expel someone based on a third-party accusation – even if the alleged victim says there was no rape.
This is the exact scenario that played out at Colorado State University-Pueblo, according to a lawsuit filed by the accused student, Grant Neal. Now, in a first for accused students, Neal is suing not only his school but also the Education Department's Office for Civil Rights, whose overzealous attention to the issue of campus sexual assault by way of non-binding but consequence-heavy "Dear Colleague" letters has created a culture where accusations equal guilt and due process rights barely exist, if at all.
Neal, a member of the football team and pre-med student, met a woman referred to in the lawsuit as Jane Doe in the fall of 2014, while she participated in the school's Athletic Training Program. The two became close, according to the lawsuit, but did not pursue a romantic relationship because Jane thought it would jeopardize her position in the program.
The two became closer and eventually went to see a movie together. When they returned to Neal's car, they began to kiss. The two engaged in digital and oral sexual activity before Neal drove Jane back to her home. The next day, the two attended a party with other members of the football team and began to flirt. They avoided public displays of affection and left the party separately.
The following day Neal had decided to host a barbeque party at his home. An hour-and-a-half before the party was scheduled to start, Jane texted Neal and invited him to her house. Jane was home alone. The two went into her bedroom to discuss their relationship, but decided it was too dangerous for them to be in a relationship at that time. Regardless, the two began to kiss and remove their own clothing. The two eventually had sex.
When Neal tried to leave, Jane repeatedly tried to get him to stay, according to the lawsuit. Neal said he didn't want to give Jane a "hickey" because other players would see it and perhaps think that it was from him. Jane told him to kiss her neck anyway and said she would wear a hoodie the next day to avoid suspicion.
Neal left Jane to return to his own party. He and Jane traded friendly text messages later that evening.
But the next day, one of Jane's peers noticed the hickey and asked her about it. Jane admitted to the sexual activity with Neal. Despite no indication from Jane that the sex was nonconsensual, the peer reported the incident to the school's director of athletic training. She accused Neal of raping Jane.
When Jane found out about the report, she texted Neal that she needed to talk to him "ASAP after practice" and had "been running around all day talking to so many people, trying to make things right!!!" She further texted that "One of the other Athletic Training students screwed me over! ... She went behind my back and told my AT advisor stuff that wasn't true!!! I'm trying to hard to fix it all."
Naturally, Neal was worried and agreed to meet with Jane. Neal's lawsuit claims that Jane was crying, but he thought she had gotten in trouble with the athletic program. Jane then told him that her peer had reported him for sexual misconduct.
Neal had the wherewithal to recognize the gravity of the situation and began recording the conversation to prove his innocence. At one point Jane told Neal he did not rape her. While still in Neal's car, Jane received a phone call from the athletic director and his wife (who had inexplicably been told about the report). Jane told them both (while being recorded): "I'm fine and I wasn't raped." Jane then called her mother to explain the situation and asked her to call the athletic director and try to clear things up.
After this the pair returned to Neal's home and engaged in sexual intercourse.
None of this mattered. Nor did it matter that Jane explicitly told CSUP's Title IX director that Neal was "a good guy," that he was "not a rapist, he's not a criminal" and that the situation was "not even worth any of this hoopla!"
Despite Jane's clear indication that there was no rape, Neal was "suspended" until she graduated. This was essentially an expulsion, as he could not get accepted at any other schools due to his status as a "rapist."
Neal's attorney, Andrew Miltenberg, is a well-known attorney when it comes to lawsuits from accused students. In a press release, Miltenberg laid out the biased and unfair procedure that led to Neal's suspension.
"From the outset, Grant Neal was presumed guilty of sexual misconduct based on nothing more than hearsay and his own male gender," Miltenberg said. "In violation of the University's own self-imposed policies and my client's fundamental rights to due process, the University required Grant to prove his innocence, rather than requiring the University to prove his guilt. This case illustrates the impact the Administration's 'Dear Colleague' letter has had in creating a deeply-flawed process for sexual misconduct investigations – as well as an inherent male gender bias – at colleges and universities throughout the country."
This is the first time an accused student has dared to sue the federal government over his sanction. Earlier this month, the Foundation for Individual Rights in Education offered to pay the legal services of any student or college president willing to sue the federal government over its campus sexual assault abuses. It does not appear as though this case is being paid for by FIRE, but it would be great to see more students start to sue OCR over the agency's evisceration of due process rights.
Ashe Schow is a commentary writer for the Washington Examiner.