A tangled quest for fairness as students accused of campus sex assault push back

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ST. PETERSBURG — On the one hand, the student's accuser painted a horrific picture.

She squeezed her legs shut while he pushed her against his dorm room wall, she told University of South Florida St. Petersburg investigators. She told them she repeatedly said no, that she turned her body away, but that he kept going. She said it hurt.

On the other hand, the male student insisted, she texted him in the morning. They got breakfast. She asked if he had plans that night. In a written statement to the conduct board that would decide his fate, he said he never forced anything, and stopped when she cried out in pain.

In a school conference room this spring, Samuel Goetz begged the board to believe him.

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"I am 19 years old and I stand before you literally fighting for my life," Goetz wrote in a statement. "Please do not let it end before it even begins over allegations that are absolutely not true."

The board disagreed. Goetz, formerly the student body vice president-elect, was expelled.

Officially, the matter was resolved. But Goetz turned to an attorney. He planned to fight.

• • •

At universities across the country, the accused are punching back, frustrated with a campus justice system they say never gave them a chance. To clear their names, they're taking their former schools to court.

One database, run by a group called Title IX For All, counts more than 160 such lawsuits since 2011, the year the Obama administration doubled down on protections for victims who said their universities did not take their assaults seriously. In the two decades prior, only a handful of these lawsuits were filed.

The lawsuits present yet another high-stakes hurdle for universities handling these agonizing and murky situations.

"It's almost as if the litigation is forcing a way of saying, 'I want you to find a way to tell the world that I'm innocent,'" said Peter Lake, professor at Stetson University College of Law and an expert in Title IX, the law that forbids sex discrimination at federally funded institutions.

Success can mean re-enrollment or having sanctions erased. Some students win settlements.

It's the stories of young men like Goetz that are weighing on education secretary Betsy DeVos as she mulls an overhaul of the way universities handle campus sexual assault. Troubled by the status quo, she has met with advocates on all sides, including those who cast the accused as a new class of victims.

"They're branded a rapist or sexual predator," said New York attorney Andrew Miltenberg, a heavyweight in due process cases. He said some of his clients have tried to kill themselves. "I can't tell you one young man who's doing okay, not even one."

For survivors of sexual assault, the lawsuits represent a different burden. After navigating an intimidating system and being validated by school officials, they find their traumatic encounter re-litigated without their say.

"It must be very painful to have to relive this," said Dana Bolger, a cofounder of Know Your IX, a group that works to end campus sexual violence. "That's not to say that accused students who feel like they've been wrongly attacked shouldn't be trying to seek justice."

• • •

After her encounter with Goetz last September, the female USFSP student sent him a text.

"I didn't want (to) have sex, it hurt and I was scared," she said.

"I really didn't have any intention of making you do anything you didn't want to," he responded, apologetic. "I misread a lot of signals."

Later, talking to a friend, the student realized she had lingering discomfort with how the night had gone. She was still in pain. So, in early October, she filed a complaint that Goetz had engaged her in non-consensual sex, setting in motion a long and complicated arbitration.

Goetz, a global business major, withdrew from USFSP as investigators interviewed the students, both ambitious leaders. Goetz said the other student had asked him to wear a condom. She said that's because she had resigned herself to a process she felt she couldn't stop.

A panel of students, faculty and staff held a hearing. The female student did not attend and could not be questioned.

"Nowhere in his statements does it show that he received consent," the panel wrote.

Goetz filed an appeal through Tampa defense attorney Mark J. O'Brien. It said his expulsion was disproportionately harsh, and that he'd been treated unfairly, forced to deal with redacted documents and improper notice of his accuser's allegations.

The university rejected it.

In late June, Goetz filed suit in Pinellas-Pasco Circuit Court. He asked the court to grant his appeal.

"He simply wants his good name back and to continue his education elsewhere," O'Brien said in an email. "This is an unjust stain on his reputation."

Goetz did not respond to requests for comment.

The Tampa Bay Times is not naming the female student, a typical practice with people who say they were sexually assaulted. Her father said the family would speak when the time is right. He said the university did its due diligence and that his daughter is doing okay.

"Certainly as things come back up … it is troublesome and hurtful," her father said. "It brings up the same anxieties that happened initially."

• • •

Victims of sexual violence long felt that their schools were failing them. A "boys will be boys" mentality prevailed. Some survivors endured insulting interrogations while schools dismissed their assaults.

In 2011, the Obama-era Office for Civil Rights issued a ground-shaking missive. The "Dear Colleague" letter reminded colleges of their obligation to adjudicate cases of sexual violence. More important, it outlined a list of controversial commandments that demanded immediate attention. Failure to comply could mean millions in lost funding and the attention of federal investigators.

While critics said the guidance went too far, more young women came forward, empowered. And more students ended up in collegiate quasi-court systems where "preponderance of the evidence" was the uniform standard of proof. If a student was "more likely than not" to have broken rules, sanctions ensued.

USF officials wouldn't comment on pending litigation, but they acknowledged the complexities of campus sexual assault.

"It starts off often in a very inert, innocent way," said Crystal Coombes, senior deputy Title IX coordinator for the USF System. "Two people kind of like each other. They kind of flirt a little bit. They hook up a little bit. They start to do something — and this is where it can go very bad, very quickly."

If communication is unclear, or someone mistakenly assumes consent, she said, there's a potential for crossed lines. For colleges, she said, the goal is to get as close to the truth as possible.

"We try to hold both parties as sacred and provide due process," said Jacob Diaz, USFSP dean of students.

• • •

Miltenberg, the New York lawyer, said common threads emerge in due process suits. They decry vague and inconsistent policies. They say accused students are left in the dark. They say investigators are subjective, hearings are biased and sanctions make no sense — let alone the appeals process. And they say the burden of proof is inappropriately low.

"The starting point in these cases is, 'You're responsible, and you have to prove otherwise,'" Miltenberg said.

Fairness is the goal for all parties, said Carly Mee, who represents survivors as a staff attorney for SurvJustice, a national not-for-profit group. Steamrolling the accused just makes a victim's case more vulnerable for appeal.

The lawsuits, Mee said, perpetuate the dangerous, debunked notion that women frequently make false reports of rape. "I can't imagine someone putting themselves through this to get back at someone," she said. "It's so hard on them."

While some say colleges should leave sexual assault to the police, others say campuses play a critical role: ensuring equal access to education.

"It's important that we don't demonize this law, when in fact it's institutions that are failing to live up to its obligations," said Bolger, the Know Your IX advocate.

• • •

Betsy DeVos says she's listening. She says she wants to get this right.

"We can't go back to the days when allegations were swept under the rug," she said this month, weighing her uncertain path forward. She also said "lives have been ruined" by false allegations, and that "no students should feel like the scales are tipped against him or her."

What's clear is that the accused are being heard. This month, Columbia University announced its Title IX settlement with student Paul Nungesser, accused by another student, Emma Sulkowicz, of rape in 2012. The school found Nungesser not responsible, and Sulkowicz mounted a performance-art protest. She carried her thin dorm mattress from class to class, getting academic credit for the stunt.

Other students shunned Nungesser. He filed a gender discrimination suit, saying the school stood by while he was harassed. Columbia recently settled with him.

"The system can never be perfect," said Lake, the Stetson professor. "The question becomes, 'Well, just how much injustice is tolerable?'"

Times news researcher John Martin contributed to this report. Contact Claire McNeill at [email protected] or (727) 893-8321.

   
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