NEW YORK (AP) — After a night of heavy drinking and sex in 2012, two Vassar College students traded Facebook messages suggesting the encounter was consensual. “I’m really sorry I led you on,” the woman wrote, adding, “I had a wonderful time last night.”
A year later, the woman went to Vassar officials and filed a sexual assault claim against the man, resulting in his expulsion for violating school rules that banned sexual intercourse without consent.
Now a Manhattan federal judge has backed the college’s decision, the latest in a series of sometimes-conflicting rulings stemming from disciplinary actions taken by colleges after reports of sexual abuse made by women who are sometimes more comfortable seeking justice through school disciplinary proceedings than facing a public law enforcement process that requires proof beyond doubt.
The March 31 ruling by U.S. District Judge Ronnie Abrams in a discrimination lawsuit brought by former honors student Xiaolu “Peter” Yu clashes with those by federal judges elsewhere who ruled at least partially against schools, questioning whether they were fair.
Courts are increasingly involved in disputes over sex on campuses after the Department of Education’s Office for Civil Rights in 2011 directed colleges to judge cases under Title IX using the standard of “preponderance of evidence,” meaning schools must conclude there is a better than 50-50 chance the accused is to blame to find him responsible.
Since the directive, the number of complaints about the handling of sexual assault claims at the nation’s 7,400 higher education schools has soared from 17 in early 2012 to 102 in 2014, a 500 percent increase, said Catherine Lhamon, the Education Department’s Assistant Secretary for Civil Rights.
“The volume of increase astounds us today and well exceeds our expectation,” Lhamon said, explaining that the growth likely stemmed from the national conversation occurring over what is acceptable on campuses.
“It is a goal for me that we can eradicate rape in educational institutions of any type,” she said. “I’d like to see a diminution in the overall rates of sexual violence. I’d like to ensure that all of our colleges and universities … treat their students fairly and respond appropriately to complaints.”
Civil libertarians say the new guidance undermines the rights of the accused as school panels with little training make decisions based on scant or one-sided evidence, but others see a real effort by schools.
Schools trying to find a happy median between rights of victims and the accused are increasingly hiring lawyers to investigate sexual assault allegations, said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management, which advises colleges on Title IX. His firm represents 72 institutions and has trained over 5,000 school administrators.
More than 50 court cases are pending nationwide, he said.
Yu sued Vassar College in 2013, saying the liberal arts school in Poughkeepsie, north of New York City, acted unfairly and discriminated against him because he is a man. If both he and the woman were intoxicated at the time, he argued, then Vassar discriminates against men by only considering the intoxication and incapacitation of women and by giving preferential treatment to the complainant.
The judge said she only needed to decide Vassar did not violate state or federal laws against gender discrimination.
The female student — the daughter of a longtime Vassar professor — did not seek criminal charges against Yu. Instead, she filed a complaint with the university saying she had been sexually assaulted by Yu, a Chinese citizen who has lived in the United States since 2008.
Yu had said the female student agreed to have sex with him after they consumed alcohol at a rowing team party and later at a campus social venue, the judge said. Yu claimed he was a virgin and said he told the woman that it was his “first time” and she responded: “It’s OK, I know what to do.”
The judge wrote that the woman’s version was “very different,” and that she said in a statement she did not answer or say “no” when Yu asked to go to his room and that she remembered “feeling helpless, like (she) couldn’t talk” and “had to do whatever he said.” She also said she tried to push him off but was unable to do so.
The next day, Yu sent the woman a Facebook message checking on her. “I was really drunk last night and I feel maybe I was way too forward. I’d be more shy if I was more sober,” he wrote, according to the evidence. The woman replied: “Peter, I was really drunk as well, don’t worry.”
She added later in the message: “I’m really sorry I led you on last night. … I don’t think any less of you at all. I had a wonderful time last night.”
Vassar spokeswoman Susan DeKrey said the school does not comment on specific student conduct for confidentiality reasons.
Andrew Miltenberg, an attorney for Yu, said his client, now 21, is enrolled at another school with a lesser reputation than Vassar. He said they will appeal.
“This was his first sexual experience, which unfortunately has been criminalized,” he said. “The arc of his life has been altered quite significantly by this. He might or might not recover.”
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