On campus, debate over civil rights and rape

By Justin Pope

Associated Press

Published: Saturday, April 21 2012 11:43 a.m. MDT

What followed, as Warner and his mother describe it, was a "kangaroo court" campus trial where a hostile administrator attacked Warner's witnesses as just standing up for a fraternity brother. He was found guilty and kicked off campus — and banned from any state school — for at least three years.

Warner is hardly the only student accused of sexual misconduct to claim unfair treatment. But his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner's accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.

Eventually the police brought charges — against her.

Not even in the famous Duke lacrosse case, Warner and others supporting him noted, did law enforcement go so far as to file false reporting charges against an accuser after a rape case collapsed.

Still, for months UND refused to reconsider Warner's case, arguing the results of the police investigation did not amount to "substantial new information."

It wasn't until last October, after a campaign led by Warner's mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner's sanctions. A UND official wrote the original decision should stand but the process for allowing him to report new information fell short of the "minimum demands of fundamental fairness."

Not that Warner plans to return to the school.

"I'm actually a big Bison fan now," he says, referring to UND's rivals, North Dakota State. He's driving a delivery truck for a national shipping company, trying to pay back legal bills to his family, and unsure if he'll ever return to college.

Warner's accuser has since left the state; a warrant is open for her arrest. (The Associated Press was unable to locate the woman, and could find no evidence she has withdrawn the accusation. AP's policy is not to identify alleged sexual assault victims). UND dean of students Cara Halgren declined to comment on Warner's case but said the school tries to balance the interests of all students.

"There's no doubt some of these cases are quite complicated," she said.

It is a fact that some rape allegations are false. How many is hard to say. University of Massachusetts-Boston psychologist David Lisak looked closely at 136 rape allegations reported over 10 years at one unidentified university in the Northeast and concluded 6 percent of allegations proved demonstrably false. That was separate from another 45 percent that did not proceed to prosecution or campus disciplinary action, either for insufficient evidence or because the complaint was withdrawn.

Russlynn Ali, the assistant secretary of education for civil rights, who signed the "Dear Colleague" letter, emphasized OCR's guidance is intended to protect victims and clarify college administrators' responsibilities toward them. "It is not intended to trump the rights of the accused," she said.

But there are some who worry that Title IX rules could force a rush to judgment. Schools must act immediately to protect alleged victims even while the case for discipline takes its course.

Daniel Swinton, director of student conduct and academic integrity at Vanderbilt, says the requirement colleges take interim steps "makes us nervous because you're starting to sanction or hold someone accountable, at least temporarily, based on an accusation."

"What if this is near finals, and the student is accused, but there's not evidence yet he's guilty? Do you expel them, have them miss the semester?" said Gwendolyn Jordan Dungy, executive director of NASPA, a group for student affairs professionals. What happens "when you want to make a judgment about discipline or removing somebody, you need more evidence, and you really don't have that luxury of an investigation?"

Another concern: Colleges must offer victims — and not just the accused — the right to appeal an unfavorable decision. It's a right victims wouldn't enjoy in criminal courts.

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