Univ. of Montana Rape Case - Full Article

Montana quarterback receives $245K settlement for university’s ‘unfair and biased’ rape investigation
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By Michael E. Miller February 17 Follow @MikeMillerDC

Former University of Montana quarterback, Jordan Johnson, center, reacts to being acquitted of rape charges during his trial in Missoula, Mont, on March 1, 2013. (AP Photo/Matt Gouras, File)

It was the most high-profile of cases, one that seemed to cut straight to the core of America’s struggles to confront sexual assault on college campuses.

Jordan Johnson was the star quarterback for the University of Montana. He was tall and handsome and an NFL hopeful. He had nearly led the team to a national title.

Then, suddenly, he was accused of rape.

On March 19, 2012, a Missoula television station reported that a female student had filed a restraining order against Johnson after she accused him of raping her six weeks earlier. Life quickly unraveled for Johnson. He was expelled from school, then criminally charged with rape. In February of 2013, a year after the alleged incident, he went on trial.

The accusation divided the college town, already on edge over a series of rape accusations, including several against other UM football players.

[Texas A&M apologizes after minorities told to ‘go back where you came from’]

Missoula was labeled the “rape capital” of the country. Investigative reporter Jon Krakauer turned the town, and Johnson’s trial, into the centerpiece of a book on America’s college campus rape epidemic.

But then came a series of blindside hits to the narrative.

Johnson was acquitted in March of 2013. He promptly sued the university.

And on Tuesday, four years after the alleged rape took place, it was announced that the ex-quarterback would receive $245,000 over the expulsion.

“Any student accused of wrongdoing deserves a fair and impartial hearing of the facts of his or her case,” Johnson said in the statement, according to the Associated Press. “Officials at the University of Montana — people who were in positions of great power — were unfair and biased. Their misconduct made my family and me suffer unnecessarily, both emotionally and financially.”

The dramatic reversal is just one of a slew of lawsuits nationwide in which young men have accused universities of erroneously and over-zealously clamping down on sexual assault.

On Monday, two male students at the University of Texas filed lawsuits claiming the school used them as scapegoats to build a reputation for being tough on sexual assault, the Austin American-Statesman reported.

Those complaints are part of a growing phenomenon. As American universities try to rein in sexual assaults on campus, more and more men are claiming — often in multi-million-dollar lawsuits — that they innocently have been caught up in the crackdown.

As of November, more than 50 pending lawsuits have been filed nationwide by men who say they were unfairly expelled from college after being accused of sexual assault, according to Inside Higher Ed.

“Almost every week, there’s at least one more suit like this,” Samantha Harris from the Foundation for Individual Rights in Education told the website. “It’s a very rapidly emerging area of law. Up until this point, it’s an area that has not been super fleshed out by the courts, and earlier lawsuits have been largely unsuccessful. But that’s starting to change.”

[Hundreds demand better response from Baylor when students are accused of rape]

All kinds of universities have been hit with these lawsuits, from big state schools like UM or UT to the Ivy League. In October, a male student sued Brown University after he was suspended for two and a half years for unwanted sexual advances.

Emma Sulkowicz, a senior visual arts student at Columbia University, carries a mattress in protest of the university’s lack of action after she reported being raped during her sophomore year on September 5, 2014 in New York City. (Photo by Andrew Burton/Getty Images)

Perhaps the most famous such suit is against Columbia University. In what has become known as the “Carry that Weight” rape case, former undergrad Emma Sulkowicz carried her mattress around campus for much of the 2014-15 school year to protest how the university handled her sexual assault complaint against a fellow student. When her protest became global news, the student she accused was put in the spotlight. Paul Nungesser’s name appeared on fliers posted around campus, and former friends began avoiding him.

Last April, Nungesser sued the school, arguing Columbia had “damaged, if not effectively destroyed” his reputation and career prospects.

“By refusing to protect Paul Nungesser, Columbia University first became a silent bystander and then turned into an active supporter of a fellow student’s harassment campaign by institutionalizing it and then heralding it,” the complaint claimed.

Columbia has moved to dismiss the lawsuit.

[Columbia University sued by male student in ‘Carry that Weight’ rape case]

The Obama administration has lent its weight to efforts to crack down on sexual assault on college campuses. In Sept. 2014, the White House announced a national campaign, called “It’s On Us,” to combat the problem, enlisting the support of major college sports leagues and celebrities to get American university students to speak out about sexual assault.

“An estimated one in five women has been sexually assaulted during her college years — one in five,” President Obama said. “Of those assaults, only 12 percent are reported, and of those reported assaults, only a fraction of the offenders are punished.”

That effort was partially undermined, however, by controversy surrounding Rolling Stone magazine’s now retracted cover story about gang rape at the University of Virginia.

[U-Va. fraternity files $25 million lawsuit against Rolling Stone]

A handful of recent legal success by male students suing their schools has also contributed to the complexity of efforts to crack down on rape on campus.

Last summer, a California trial court judge ruled that the University of California at San Diego had to reinstate a male student who had been suspended over a report he sexually assaulted a female student, according to Inside Higher Ed. He had accused the school of violating his due process rights by presuming his guilt ahead of a hearing, restricting his access to witnesses and evidence and informing a hearing panel of his guilt instead of letting the panel reach its own conclusion.

Since then, male students at the University of Southern California, Middleburg, Swarthmore and the University of Tennessee at Chattanooga have won similar legal skirmishes.

In the Tennessee case, a judge ruled that the university’s policies were unfair because they forced an accused student to prove his innocence rather than requiring the school to prove his guilt.

Montana quarterback Jordan Johnson (10) runs the ball against Eastern Washington during the first half of a second-round game in the NCAAA Football Championship Subdivision Playoffs on Saturday, Dec 6, 2014, at Roos Field in Cheney, Wash. (AP Photo/The Spokesman-Review, Tyler Tjomsland)

Like that ruling, the University of Texas lawsuits filed this week point to the problematic gap between the criminal justice system and the scholastic version now under scrutiny.

In one of the UT suits, a recent graduate claims he only became aware in Dec. 2014 that a woman with whom he had sex more than three months earlier had accused him of sexual assault, according to the American-Statesman. Austin police investigated, but cops and local prosecutors closed their cases against the student without charging him.

The dean of students, however, recommended he be expelled. (He appealed and has since graduated.) The university had ruled that “the evidence supported a finding that (he) had sexually assaulted Ms. Roe, the opposite of the conclusion reached by the more experienced detectives of the police department,” according to the lawsuit.

In the other UT suit filed on Monday, an undergraduate claims he was also treated unfairly. When the student was accused of raping a woman after a house party in March of 2015, UT police investigated — although officers did not interview the alleged victim — and did not bring charges. A complaint from the woman’s father, however, was forwarded to the university’s dean, who recommended the male student be expelled.

“I don’t remember throwing up, or coming home, or having this random (expletive) guy in my bed,” the woman texted her friend the day after the alleged rape, according to the lawsuit. “I didn’t want this guy. At all. This guy wanted me and got me when I wasn’t conscious.”

According to the lawsuit, however, the friend said she saw the woman awake and talking while kissing this man.

The two UT suits, filed by the same lawyer, contain identical language suggesting that the school was putting its image ahead of individual students’ rights.

“The university has been placed under enormous political pressure to appear tough on those accused of sexual assault and as a result have [sic] adopted a practice of expelling males from the university without regard to the rights of the accused student of the evidence,” the lawsuits say, according to the American-Statesman. “The university has furthermore sought publicity and prestige by portraying itself as a national leader in the effort to curb on-campus sexual assaults.”

But Paul Liebman, UT’s chief compliance officer, said that the school should not be expected to follow criminal procedure.

“The police follow the Texas Criminal Code,” he told the American-Statesman. “We have the General Information Catalog. One of those policies is a prohibition against sexual assault. When someone comes to us (with an allegation of sexual assault), we look at our policy. … We’re not finding a crime; we’re just trying to figure out whether someone has violated our policy.”

Former University of Montana quarterback, Jordan Johnson, facing camera, is hugged by a supporter after being acquitted of rape charges during his trial Friday March 1, 2013 in Missoula, Mont. The accusations against Johnson, 20, have drawn much attention in Montana, where UM football is the top sports attraction. Jurors deliberated for less than two hours. (AP Photo/Matt Gouras)

The standards schools use to investigate student misconduct were also at issue in the Montana case.

Johnson, the football player, was accused of raping a friend while they watched a movie.

“Omg … I think I might have just gotten raped,” the woman texted her flatmate shortly after the alleged assault. “He kept pushing and pushing and I said no but he wouldn’t listen … I just wanna cry … Omg what do I do!”

Johnson denied wrongdoing, telling the school, and later a jury, that the sex was consensual.

In 2011, the U.S. Department of Education told American colleges and universities that they were required to use a standard of “preponderance of evidence” for sexual assault complaints — meaning 51 percent of credible evidence — rather than the higher threshold of “clear and convincing evidence” or, highest of all, the criminal standard of “beyond a reasonable doubt.”

Although the University of Montana had already used the “preponderance of evidence” standard against other male students accused of sexual assault, it had not updated its Student Code of Conduct. And when Jordan Johnson was accused of rape in February of 2012, his attorneys jumped on the discrepancy.

Johnson’s lawyers argued that the school’s handling of the complaint had been “undermined and tainted by serious failures of due process and fundamental fairness,” Krakauer wrote in his book on the sexual assaults at the university, “Missoula: Rape and the Justice System in a College Town.”

When Johnson’s appeals failed, he appealed to the state’s commissioner of higher education. It was a Hail Mary, but it worked. Commissioner Clayton Christian controversially overturned Johnson’s expulsion, sending it back to the school and calling for “clear and convincing” evidence.

After another dean took over the school in 2012, she found both Johnson and his accuser to be credible, writing that it was “a case of differing perceptions and interpretations of the events in question,” according to a letter obtained by Krakauer. “The [dean] concluded that there was not clear and convincing evidence to find that [Johnson] committed sexual misconduct.”

After a tear-filled trial, during which Johnson decided to take the stand to defend himself, a jury took less than two hours to find him not guilty.

On Tuesday, the former quarterback’s comeback was complete when a court approved his $245,000 settlement agreement with the state. The agreement listed 11 claims made by Johnson, including violations of due process and his civil rights, along with sexual discrimination, negligence and destroying evidence, according to the AP.

“I want to put this entire situation behind me and move forward with my life,” Johnson said in a statement.

Whatever happened in that Missoula bedroom, however, the issue of sexual assault isn’t going away anytime soon in America — or at the University of Montana.

After at least 80 alleged sexual assaults in three years on the campus, most of which were not prosecuted, the U.S. Department of Justice launched its own investigation. The DOJ signed settlement agreements with the university, the city and county prosecutors requiring changes in reporting, responding to and oversight of sexual assault cases.