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Student accused of rape expelled, claims UGA denied due process - The Red and Black : News

Student accused of rape expelled, claims UGA denied due process

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Posted: Wednesday, November 28, 2012 9:30 pm | Updated: 6:20 pm, Fri Jan 18, 2013.

A University student is fighting expulsion stemming from an on-campus incident in which a female student accused him of strong-arm rape in late August.

On Nov. 7, Kristopher Stevens, associate director of the Equal Opportunity Office, found the student “committed sexual assault” and was being “expelled from the University of Georgia, effective immediately.”

But in court documents filed in Athens-Clarke County State Court on Nov. 9, the male student petitioned for a temporary restraining order and permanent injunction seeking to complete his fall semester. According to the court documents, the student, who has not been arrested and faces no criminal charges, “was not afforded any due process, not allowed to have and participate in a hearing to ‘confront’ his accuser.”

“The problem is that there was no hearing,” said Kim Stephens, an Athens attorney representing the male student. “There needs to be a way that students can have due process. There needs to be a hearing held and there need to be process requirements.”

The EOO declined an interview regarding how the office conducts investigations.

The restraining order, filed against University President Michael Adams, Stevens and the Board of Regents, seeks to return the student’s status to full-time student. The court agreed on Nov. 9 and allowed the temporary relief for the student pending a Friday court hearing, where University officials need to show cause why the student’s injunction should not be granted.

University Police Chief Jimmy Williamson said the criminal investigation of the reported rape is ongoing.

 

What happened that night?

A little after midnight on Aug. 24, the male student now facing expulsion texted a female student asking her to “come over and drink” to which the female student responded with “I’m honestly so far gone right now,” according to a text message conversation from the male student’s phone.

Around 12:15 a.m., the female student said someone was walking her home, and that she would call the male student in 30 minutes. Around 12:43 a.m., the female student texted she was outside of his dorm. The male student said, “Coming,” and she responded with a smiley face.

The next series of texts occurred at 2:48 a.m. The male student asked, “Did u make it back ok?” and the female student responded with, “I went to a different dorm actually.” He asked if it was on purpose or accident and she wrote it was on purpose and that she was sleeping in another room.

The male student’s final text in the conversation was, “I’m glad u made it ok,” and then wished her good night. The female student responded with “Night.”

On Aug. 26, University Police met with the female student after she reported a strong-arm rape in Oglethorpe House that occurred on Aug. 24 between midnight and 3 a.m. Police met with the victim “who stated the incident was with an individual known to her and that she had already sought treatment at ACC SANE,” according to the University Police report.

 

The issue of due process

In the court documents, the plaintiff’s attorney writes Stevens has refused to release the names and contact information of the witnesses he has interviewed during his investigation citing “FERPA” federal privacy laws.

“Kris is doing what he’s supposed to do and not releasing the names because of FERPA, but the court says you need the witnesses because people need due process,” Stephens said. “The problem is that this process and the decisions that the University is making are kind of at odds with the Constitution.”

In an official University document sent to the plaintiff, Stevens writes he finds based on the preponderance of the evidence that the female student was intoxicated and unable to give consent. He also writes “based on a review of all the available evidence, I find that the evidence does establish a violation of the UGA NDAH (Non-Discrimination and Anti-Harassment) Policy.”

Stevens interviewed five people and used the text message conversation as evidence to expel the male student, according to court documents.

Without any sort of hearing, the University found the student in violation of the NDAH Policy for having “committed sexual assault” and kicked him off campus.

Under federal guidelines detailed in a 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights, schools must take immediate and appropriate action to investigate a case of possible sexual violence. It states public and state-supported schools must offer due process to the alleged perpetrator while also making sure the steps do not “restrict or unnecessarily delay” the complainant’s Title IX protections. 

“The Dear Colleague Letter is relatively recent,” Stephens said. “It’s the first time I’ve ever experienced it at the University, and I’ve been here for 20 years as a lawyer.” 

Stephens said the court will rule on Friday whether his client was denied due process and whether an injunction should remain in place until due process is provided.

“If you’re expelled from school, it goes on your permanent record and makes it difficult to get into any other university or college,” Stephens said. “So no matter what you want to do, you will be affected immediately, and that’s why due process is required.”

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6 comments:

  • Dawg2014 posted at 3:18 pm on Sat, Dec 1, 2012.

    Dawg2014 Posts: 16

    Not much to add because CJS summed up everything perfectly and I totally agree with him. Just because you are drunk doesn't mean you are incapable of consent or knowing what is happening. If that were the case then then people could just get drunk commit crimes and get off because they had no knowledge of their actions. In closing, drunk people are well aware of their surroundings and are capable of consenting albeit they might not remember in the morning but that doesn't change the fact that knew what happened at the time they consented to the behavior.

     
  • UncleTed posted at 2:57 pm on Fri, Nov 30, 2012.

    UncleTed Posts: 2

    Another Kris Stevens debacle.

     
  • CJS posted at 12:26 pm on Fri, Nov 30, 2012.

    CJS Posts: 36

    I propose a new conduct office whose policies have little or no overlap with the law. This way things which are not illegal but should be punished (such as class disruption, cheating on exams, etc.) can be punished, but should the university feel that someone is guilty of a crime, they can have the UGA Police Dept. arrest them and see them punished in a court of law. Should the law find them guilty, they may be punished by the university, however I would argue that denying education for committing a crime has a long-term effect of creating more criminals and that a less punitive and more reformational approach would work best.

    That way, no wrongful acts go unpunished, and an element which does nothing but provide another source of error is removed.

     
  • CJS posted at 12:24 pm on Fri, Nov 30, 2012.

    CJS Posts: 36

    If she was too drunk to consent and talking about how far gone she was why place so much trust in her recollection of the rapist in the middle of the night?

    Also I'm kinda bothered by how Stephens stated his reasoning. How drunk do you have to be to not be able to consent? I've been blackout drunk and had sex, I 'couldn't consent,' she was drunk too, who was raped? Was I raped? Was she? Were we both victims of rape?

    This is another ridiculous example of how the federal Department of Education's directives have shifted the burden of proof to the accused, which is decidedly against what the US stands for. Moreover, the conduct office at UGA does this regularly, and I have heard with my own ears and from others who were in his office before that for any student conduct punishment he needs only be convinced that the act was "more likely than not." How likely is that? 50% likely? How is that measured? If this principle is challenged, and I have several times to him, Stevens explains that the University is not the US penal system and does not have to follow its rules--double jeopardy, innocent until proven guilty, etc.--which is a massive cop-out and ignores that the University is in fact part of the government.

    Furthermore, should someone get punished by the conduct office and found NOT GUILTY by the actual court of law, there is currently no means of expungement and any employers and post-graduate programs would see on your record accounts of crimes that legally you are not guilty of.

    There you have it, the student conduct office is a toxic, rogue justice organization with unchecked power and little respect to the spirit of the US Constitution or the ideals this country is based on. It is a diseased branch that should be pruned off the tree so that it can grow healthily.

     
  • Veritatem posted at 10:56 am on Fri, Nov 30, 2012.

    Veritatem Posts: 60

    Legally required or not, the university should recognize due process as a bastion of teaching and ideals. The texts seem to mitigate against a lack of consent because of intoxication. Would like more details in this article. Unlike the other rape stories reported in the R&B, I hope the R&B follows up on this one.

     
  • CorbinAiken posted at 11:05 am on Thu, Nov 29, 2012.

    CorbinAiken Posts: 1

    Polina, you might want to check out the role of the University Judiciary in the process. I haven't been on the Judiciary since the "Dear Colleague letter". However, students can elect to have a hearing if they don't agree with the administrator's decision. I'd be interested to know why the student didn't pursue having a hearing or, why he wasn't given the opportunity to pursue this option. Would also love to hear what current judiciary students have to say about this.