There’s a faint but interesting trend picking up in the Title IX litigation movement. Female rape accusers and the males they accuse are sometimes filing complaints against the school at virtually the same time.

Why?

Surely, if there is always a winning and a losing party, only one can be truly wronged by the school? How do we make sense of this? Some may be tempted to think that it is because the system fails everyone equally. As we will see, this is likely not the case.

In such cases, female and male litigants have radically different motivations for suing. To summarize: in the grand scheme of things, the accuser gets her way in that the person she accused is removed from school. He sues because he is railroaded out without due process. She sues because the process of removing him from campus was not conducted expeditiously, or because the process lacked sufficient sensitivity.

We’ll examine two such cases.

Furman University

The Charlotte Observer reports that Furman has been sued by both a female rape accuser and an accused male. The incident starts out in the usual fashion:

The alleged rape occurred after the two were drinking at a party together and later went to the woman’s house, according to the lawsuit filed against Furman, the male student and the male student’s fraternity Beta Theta Pi. Both agree they had sex but disagree on whether it was consensual.

The female student was cheating on her boyfriend when they had sex and did not want her boyfriend to know, which is another common theme in which the young man is eventually accused of rape (e.g. Doe v. Illinois State University et al, Farrer v. Indiana University, etc.).

She initiated a text exchange with him immediately afterward, as follows:

• Jane Roe: Text me when you make it back 
• John Doe: I’m alive. We have a ritual rn (3 face with tears of joy emojis) 
• Jane Roe: Good! I found your underwear. I’ll get it to you sometime this week A ritual? (one face with tears of joy emoji) 
• John Doe: I don’t know how I made it But I did 
• Jane Roe: I’m glad you did Only you and I should know about this okay? 
• John Doe: I am 100% aware of that 
• Jane Roe: Perfect I just thought I would double check The last thing we need is drama
• John Doe: Nah drama is bad no drama

Of course, she was not altruistically texting him to make sure he “made it back safely.” She wanted to make sure he kept quiet. She later accused him of rape. Despite her changing her story many times, and despite the exculpatory text evidence, he was expelled. Why?

…university investigators still found the accused guilty of sexual assault because of a documented phenomenon where sexual assault survivors often have fragmented or incomplete memories of the attack or may act in counter-intuitive ways after an assault.

This is the “trauma-informed” approach to sexual assault investigations in which all exculpatory evidence and inconsistencies in the accuser’s testimony are waved away like a magic wand due to the notion that “trauma” explains everything. Of course, the wrongly accused can suffer trauma as well, but unlike accusers their trauma is not reflexively used as a catch-all dismissal for what would otherwise be evidence discrediting the accused.

He was expelled, so why is she suing?

Even though Furman ruled in favor of the accuser, her attorneys allege in court documents the university acted with “deliberate indifference to the plaintiff’s report of sexual misconduct and harassment.”

For one, the accuser’s attorneys allege Furman released private medical records to the accused’s attorney and an expert witness without the accuser’s consent. Her attorney alleges the accused’s attorney was also given access to “confidential and sensitive” parts of the information and was allowed to submit evidence less than a week before the school held its hearing to determine whether the student engaged in sexual misconduct, court documents show.

In other words, the male student she accused was allowed to see exculpatory evidence and respond to it with further evidence of his own in a timely manner. Granted, if she was unable to further respond in a timely manner, she may be a claim. But it also begs the question as to whether it should matter if she got her way in the end and no damage was incurred.

Arizona State University

This next one is technically not a lawsuit by the accuser, but a complaint to the Department of Education accompanied with the threat of a civil lawsuit.

Last December, Ray Stern at the Phoenix New Times reported the case of ASU student Brooke Lewis, who accused graduate student Matthew Green of rape. According to Green’s lawsuit, “the alleged assault had already been investigated by police and the facts did not support a finding that any such assault had occurred, and no charges were brought against Plaintiff.”

Stern further reports that:

Lewis was ‘openly displeased’ with the administrative review process and ‘refused follow up meetings with investigators and others involved in the case,’ according to a review of the investigation by deans of students Nicole Taylor, Lance Harrop, and Kendra Hunter, Sr.

Note that if accused male students refuse to attend meetings, they tend to be reflexively presumed guilty, even if they are frustrated (rightly or wrongly) with administrators. In this case, the accuser skipped meetings with apparently no adverse effect to her claim.

Despite the conflict, the Dean of Students’ office determined that it was more likely than not that Green was responsible and planned to expel him. The University Hearing Board recommended a two-year suspension instead, assuring Green would be removed from campus until Lewis graduates.

After reviewing the recommendation, the Dean ended up expelling him anyway, but agreed with the Board that although no significant physical injury had been inflicted. Per Ray Stern’s reporting, this is consistent with reports of paramedics who, upon examining Lewis the morning following the incident, “noted that Lewis had no sign of injuries.”

Lewis was outraged at the Board’s recommendations (she was also angry at the paramedics). She was further incensed that

A month after she reported the crime, the university sent her notice that her financial aid was being revoked. Officials say it was a coincidence. She claims it’s retaliation.

There is no claim or evidence that her financial aid was revoked, only that a notice was sent. Whether the sending of this notice was due to incompetence, malevolence, deliberate indifference, or whether Lewis failed to maintain the requirements for the aid (e.g., satisfactory academic progress), the timing is of course poor.

These are the main points behind Lewis’ complaint. Green filed his own lawsuit in the Superior Court of Arizona in Maricopa County, which was later removed to Arizona District Court. This lawsuit is in our Lawsuits Database.

Green’s lawsuit alleges that the determinations of the police and the Dean of Students’ office are so contradictory that it was inappropriate for the school to find him responsible for misconduct. ASU has already filed their motion to dismiss. We’ll see how his lawsuit develops, and whether Lewis files her own.

How many Title IX complaints by rape accusers fit this pattern: that although the school took their side and punished those they accused, they did so with insufficient sensitivity?

How many accused male students who were removed from campus would trade their outcomes for one in which the school instead found them not responsible for misconduct but reached their conclusions with insufficient sensitivity toward them?

Something to think about.

One thing is clear: lawsuits are happening regardless. For schools, it’s increasingly not so much a question of if they will be sued, but when – no matter what they do.