Attorney Richard L. Lougee Writing on a Document


Richard L. Lougee Oct. 28, 2014

American Society has a way of taking a problem and converting it to a crisis overnight.  (Occasionally the crisis arises without an underlying problem:  Witness the thousands of fictitious reports of Satanic sexual abuse of children in the 1980's.  A thorough investigation by the FBI found none of the claims substantiated.)  The crisis du jour is the alleged epidemic of sexual assaults on college and university campuses.

The origin of the current college rape hysteria was a letter sent in April 2011, by the US Department of Education to colleges across the country.  The letter ordered policy changes in the way schools processed sexual assault complaints, including (incredibly) lowering the burden of proof from "clear and convincing evidence" to a "preponderance of the evidence."  As a direct result of the policies implemented as mandated by that letter, there has been a dramatic spike in the number of rape allegations reported on college and university campuses.

While sexual assault is a repulsive crime deserving of severe punishment, the policies in place have created an atmosphere that fosters false allegations.  The reasons for false allegations are myriad but the facts underlying the claims are too often ignored by campus police departments and the Title IX hearing officers charged with investigating the complaints.  All too often the investigation is nothing but an effort to corroborate the "victim's" story and impose summary judgment and swift punishment on the accused student.  The disciplinary hearings conducted by the universities are too often driven more by ideology and politics than a concern with facts and fairness.

One of my cases in Arizona is illustrative of how things can go wrong.  In 2013, two young pre-med undergraduates attended a fraternity party.  They were socially immature and not experienced with drunken social gatherings.  After several hours of drinking, a co-ed, previously unknown to either of the boys, took each of them by the hand and led them to an empty room upstairs in the fraternity.  The evidence of what then occurred is undisputed: The young lady partially undressed and had the boys sit on a couch and expose their genitalia.  She then proceeded to perform oral sex on them.  As this was occurring the room's owner opened the door and asked what was "going on."  The co-erd yelled at him "to get the hell out."  The owner of the room then took her clothes from his floor and threw them into the crowded hallway.  The young lady left the room, gathered her clothes and left the fraternity in tears.  She was found by a friend sitting on a curb near the fraternity house, sobbing and clothes disheveled.  When asked why she was upset, she reported she had " just been raped."  The friend called the campus police.  The "investigation" consisted of a statement from the complainant and a sexual assault examination (with negative findings).  No other witnesses were interviewed by the police or university officials.  Both boys were arrested, handcuffed and taken to jail.  Both were charged with rape (sexual assault), a crime carrying a mandatory presumptive sentence of 7 years, and told they would be subjected to disciplinary proceedings by the university.

The defense investigation established the co-ed had a boyfriend whom she was concerned would learn of her fully consensual  escapades at the fraternity house.  Students present at the fraternity during the alleged incident supported the boys' version of the events, including the fraternity brother ordered from his own room by the then indignant "victim." The co-ed's Facebook contained a picture of her posted the following day in a bathing suit, holding a beer and laughing--this less than 24 hours following the "rape."

Both the prosecutor and the campus officials ignored the compelling and undisputed evidence of fabrication uncovered by the defense investigators.  The boys were indicted for rape and an interview conducted by a clearly biased school official.  Fortunately, the story has a partially happy ending when the charges were dismissed months later after the proceedings started to interfere with the co-ed's social calendar and she exercised her rights as a "victim" to call the whole thing off.  What is not so happy is the boys have an arrest for rape on their record which cannot be removed (arrest records cannot be expunged following an indictment even if the charges are dismissed) and the first entry on Google for each boy is the story involving their arrests.

This is not an isolated example of fabricated allegations of sexual assault being taken at face value by police and university officials.  Similar miscarriages of justice are occurring daily on campuses across this country. (Note:  There are almost never consequences for the "victim" who makes up a provably contrived rape allegation.)  We have, then, what Harvard Law Professor Alan Dershowitz has described as "political correctness run Amok."

Rape, when it actually occurs, is a terrible "touching";  putting handcuffs on young men falsely accused of rape is an even more horrible "touching".  The hysteria should subside and the real problem put in perspective and addressed by individuals without ideological agendas.