CHARLOTTE, NC (Michael Gordon/The Charlotte Observer) - As the debate over campus sexual assaults continues to shadow universities throughout the Carolinas and beyond, more accused male students have started taking their female accusers to court.
In the past three years, male students accused of sexual misconduct have filed hundreds of lawsuits, charging that they were the victims of both false allegations and school procedures that failed to properly vet the claims.
And while there are no exact figures, in dozens of those cases male students also have sued the women who lodged the original allegations. One out-of-state attorney says he has filed more than 15 defamation complaints nationwide on behalf of male students against their accusers.
Locally, lawyers used the threat of defamation complaints against female accusers in sexual-misconduct cases at both Davidson College and UNC Charlotte. Meanwhile, an Appalachian State University student has pending lawsuits against the school and his former Union County girlfriend after he was suspended in 2015 for "unlawful entry" into her dorm room.
Critics of these lawsuits say they can place assault victims on trial, further suppressing an already under-reported crime.
"When a woman tells you she's been assaulted, believe her," Davidson College President Carol Quillen wrote in an Observer guest column earlier this year. "Although the unicorn exception gets a lot of press, the overwhelming majority of women do not make up rape."
However, Charlotte attorney John Gresham, who is representing the suspended ASU student, says he sued the school and his client's accuser only after his investigation showed that the allegations were false and that the university blatantly mishandled the case.
"In all of these matters, there are the futures of two students at stake," says Gresham, who has also represented male students accused of sexual misconduct at Duke University, UNC Chapel Hill, Queens University and Davidson College.
Gresham and other critics say they recognize the seriousness of campus assaults and the responsibility schools have for keeping students safe.
"But there are also cases where male students have been severely damaged, assessed large legal fees, and may have had their careers ruined without having the ability to present evidence that showed they had not engaged in misconduct," he says.
Much of the debate focuses on changes colleges began making five years ago in response to accusations by the federal government that they were not doing enough to address campus assaults. The directives also carried the threat that the government would withhold millions of dollars from colleges that did not comply.
While the new protocols make it easier for women to report sexual offenses, critics say the procedures often omit necessary protections for male students facing expulsion, lessened job prospects and other consequences from having the accusations on their records.
Last month, the American College of Trial Lawyers called for major reforms in how campuses handle reports of sexual assault. While acknowledging that the issue is a serious one, the group advocates policies that afford "basic fairness and due process."
Pendulum swings too far?
Colleges do not operate courtrooms and do not have the resources, or legal authority, to conduct police-style investigations or trial-like proceedings, experts say. They are also limited by federal privacy rules from defending themselves against attacks from all sides.
Raleigh attorney Sarah Ford, who advises colleges on assault cases, says the schools' handling of the incidents traditionally has pleased no one.
"In years past, there really was a failure on the part of colleges and universities to take complaints of sexual assault seriously and many victims were ignored, at best," Ford says. "There is some concern that schools have been so anxious to correct their past sins ... that perhaps the pendulum has swung too far."
In the past two years alone, according to the publication Inside Higher Ed, colleges have lost at least a dozen lawsuits filed by men accused of sexual misconduct who say they were treated unfairly by their schools.
"In over 20 years of reviewing higher education law cases, I've never seen such a string of legal setbacks for universities," Gary Pavela, an expert on student conduct issues, told the publication. "Something is going seriously wrong."
Defamation lawsuits against the accusers is the latest wrinkle in these cases.
Durham attorney Kerry Sutton says she recently used the threat of a defamation lawsuit in her defense of three UNC Charlotte male students accused last year of raping a female classmate at an off-campus party. She says the three were verbally harassed across campus and two were physically assaulted. Ultimately, no criminal charges were filed in the case and the university decided the incident did not warrant a hearing, Sutton says. A UNCC spokesman said the school could not comment.
Sutton, who has built a practice around defending students accused of assault, says too many schools have procedures that presume more guilt than innocence, and where "the defendant starts out in a hole." She blames what she describes as exaggerated statistics on the frequency of campus assaults for creating "hysteria" at many schools.
Most campus cases are never reported to police, leaving it to school officials to determine if an assault occurred. Once that meant rape or other forcible offenses. Now, as student attitudes toward sex trend toward the casual, college officials are sifting through case after case of what both parties frequently say started as a consensual act but then disagree over whether consent was withdrawn.
Frequently, heavy drinking is involved. In other examples, female students file complaints about misconduct ranging from rape to unwanted kissing weeks or months after the events occurred.
Davidson College has remained a flashpoint for the issue. Under Quillen's leadership, the school has become more aggressive in reporting allegations of sexual misconduct.
In her column for the Observer earlier this year, Quillen talked about the balancing act colleges face:
"Our criminal justice is founded on due process and the possibility of innocence," she wrote. "Nothing about due process says to a rape survivor, 'I believe you.' How can we best support her when a district attorney declines to prosecute? How can we assure each survivor that we believe her while also insisting on an impartial investigative process? And, most difficult of all, how can we help a survivor feel believed when we can take no action because she chooses not to file a complaint? Acting as if we believe survivors while respecting their right to choose a course of action collides head on with our equally strong commitment to due process. And in this collision, what is right?"
Gresham, a Davidson alumnus, and other attorneys continue to question the fairness of the school's procedures.
Traditionally, lawyers had to remain out of the room at the college's student-misconduct hearings, and all questions for the cross-examination of accusers had to be approved in advance. Davidson has since allowed attorneys to sit in as advisers for both sides. But the lawyers can't ask questions, take notes or "otherwise actively participate."
Charlotte attorney Sonya Pfeiffer said she got around the restrictions in 2014, when she was representing a male Davidson student who was investigated by the school after a female acquaintance filed a report that she had been sexually assaulted. Pfeiffer says she prepared a 12-page memo for her client to present to school officials that summarized the evidence. It included Facebook posts and text messages and other information from the students involved.
Pfeiffer said her goal was to help her client avoid a student-misconduct hearing. "We knew how lopsided and unfair that hearing would be."
In response, Davidson spokesman Mark Johnson says the college has "never dropped a complaint or withdrawn protective measures from a victim because of advocacy by a lawyer."
In another 2014 case, Gresham represented a Davidson male student who was "indefinitely suspended" by the school based on sexual assault allegations from two female students. After his client lost the first round of appeals, Gresham presented the school with a draft defamation lawsuit he had prepared to file against both accusers. He says it included texts, emails and other evidence that appeared to show that all the sex had been consensual.
The impact appears mixed. According to the subsequent agreement signed by the parties, Gresham's client was allowed to finish the semester then voluntarily withdraw from Davidson without Quillen ruling on his appeal. He also received credit for the classes he completed. But there was this caveat: Davidson officials would report fully the details of the sexual-misconduct case if asked by another school.
Davidson declined comment, saying it cannot discuss matters involving student privacy. Gresham says the settlement salvaged his client's academic career, and he credits the threat of a defamation lawsuit for helping bring it about.
In the Appalachian State case, Gresham represents student Frank Gulyas, who was suspended in 2015 based on the complaint from his former girlfriend from Indian Trail. The woman did not accuse Gulyas of sexual assault. Instead, she said he entered her dorm room without her approval, put his hands on her and made threats against her and her family.
Gulyas' lawsuit against the woman claims she made up allegations, including that Gulyas was part of a Colombian drug cartel, out of anger over him dating another woman. Gulyas' complaint against ASU accuses school leaders of manipulating the investigation and ignoring evidence that undermined the woman's accusations. He's scheduled to re-enter the school in the fall.
Appalachian State has asked that the suit be thrown out. "While we cannot comment on the specifics of the case, our motion to dismiss is pending," said Megan Hayes, the school's communications director. "Our hope is that the public will withhold judgment until the courts have made a decision based on the merits of this case."
Charlotte defense attorney Pfeiffer says that in many cases, college administrators are trying to discern the truth about allegations as serious as rape without the legal training those charges deserve. Complicating the cases even further, she says, is an evolving campus social life that often features heavy drinking and "hook-up" sex between students who barely know each other. Often, there are no other witnesses.
In April, for example, a rape charge was dropped against a UNCC student in part because his accuser could not remember many of the details of the incident due to a blood-alcohol level that was well over twice the legal limit.
Citing lack of evidence last month, a Mecklenburg prosecutor dropped a sexual battery case filed with police by a Davidson College woman against a male counterpart. The two had engaged in intimate behavior before. On the night the alleged assault occurred, the woman had gone to the other student's dorm room at 2 a.m., and there was no evidence that the male student had used force, the district attorney's office said. The students were the only witnesses.
"What's troubling is that the (sex) act has become so casual, but the consequences can be so severe," Pfeiffer says.