Inside Latest Lawsuit Against DU Over Alleged Sex-Offense Expulsion

A former first-year University of Denver student is suing over what his complaint describes as "false allegations of non-consensual sexual contact" with a fellow DU freshman that led to his expulsion. The suit is at least the second of its type filed against the university in the past two years, and the attorney handling both cases accuses the school of using a procedure that is patently unfair to those accused of such offenses and gives them little opportunity to defend themselves.

"I don't have any confidence in DU's investigative process or their Title IX process," says New York-based Andrew Miltenberg of the Nesenoff & Miltenberg, LLP law firm. "In this case, you have a situation where they got it wrong and they didn't do what I think needed to be done to really uncover as close to the truth as you could get."

About the latest suit, DU spokeswoman Theresa Ahrens, corresponding via email, states that the university had not been formally served with the lawsuit as of Friday, August 18. If DU offers any further comment about it, we'll update this post.

Miltenberg was equally critical during an interview for a September 2016 Westword post in which he ripped college sex-report policies in the context of the previous DU lawsuit, which was filed in January 2016, and complaints aimed at two other Colorado schools, the University of Colorado Boulder and Colorado State University-Pueblo. The student at the center of the latter controversy, Grant Neal, reached a settlement with CSU Pueblo last month. The parties involved have agreed to keep the specifics of the pact confidential.

Unlike Neal, who sued CSU Pueblo under his own name, the plaintiffs in the two DU cases are both identified as John Doe. Likewise, the female accuser in the most recent case is also referred to by a pseudonym, Jane Roe.

According to the lawsuit, which is accessible below (as is the previous DU filing), John and Jane met in the fall of 2015 and went to bed together the following January — but while they touched each other in an "intimate manner," Jane said she didn't want to have sexual intercourse, and "John respected Jane's decision," the suit allows. They attended a Colorado Avalanche game together in early February, but then "spoke less frequently and did not see each other regularly" for the remainder of the month.

On March 4, the narrative proceeds, John was in a friend's dorm room playing video games and drinking; over the course of the evening, he consumed eight "vodka drinks" that rendered him "intoxicated but...able to appreciate his surrounding and environment." Somewhere along the way, Jane and a friend knocked on the door and entered. The complaint maintains that John didn't know how Jane knew where to find him or whether she had consumed any alcohol herself, though she "appeared fully coherent and functional."

At that point, Jane is said to have asked John to leave with her and he declined — but she allegedly used her friend "as a ruse to lure John out of the room" shortly thereafter. In the hallway, Jane asked John to come to her room with her, the suit goes on, and this time he acquiesced.

The tryst that follows is described in very unromantic terms. After partially disrobing, John headed back to his room to get some condoms — a trip to which Jane didn't object, the suit says. But in the midst of their subsequent embraces, John began feeling ill and vomited into a trash can. They began to kiss again a short time later, and John removed his boxers and put on a condom — but he "was unable to sustain an erection and the condom came off of John's penis," the text continues.

After the same thing happened again, the two "discussed the fact that John drank too much that evening and he did not think he would be capable of having sex with her," the lawsuit says. "John apologized, put his boxers back on, and the two fell asleep together in her bed." The following morning, John was able to achieve an erection and put on another condom, and Jane got on top of him. But after what the suit calculates as less than a minute, and "without John ever fully penetrating Jane's vagina," she got off the bed, put on a robe and went to the bathroom. John subsequently decided to leave on his own, despite Jane's requests that he "remain in the room and speak with her," the suit states.

In a March 8 text, however, Jane told John that she had "come to realize that [John] did hurt (her)" and that he "stripped (her) of something that wasn't (his) to take," the lawsuit quotes. That same day, she met with a staff member of DU's Center for Advocacy, Prevention and Empowerment (CAPE), and on March 10, John learned that Jane "had filed an anonymous report about the events" of March 6. Thus began a process that lasted several weeks before culminating on April 11 with university personnel being notified of Jane's decision to "move forward with an investigation" that led to John's being expelled from DU.

Miltenberg stops short of saying categorically that John's account is true and Jane's is false. "It's hard for me to say that," he acknowledges. "I don't really believe it happened the way they ultimately decided. I know what John Doe says happened, but there's a significant gap between what he relates happened and what DU ultimately decided. When that happens, you're left with questions. How did this happen? And how can there be such disparate stories? And the answer's either someone's lying very big or the investigators got it terribly wrong by accident or on purpose."

As such, Miltenberg sets aside the he-said, she-said aspects of the incident and focuses on process.

"Let's look at the facts," he says. "The fact that there was no hearing. The fact that there was no opportunity to confront or question witnesses. The fact that there was no opportunity to make a statement to a group of people who could then decide on credibility after having watched someone speak. That's why we have trials — so a judge and jury can judge credibility. But in this case, they relied on written words from the investigator, and written words don't convey the whole story."

On top of that, Miltenberg stresses, John "didn't have an opportunity to question the accuser. At DU, there's a group called the Outcome Council, which basically makes the decision. The panel reviews its own investigative report, and then it's essentially a rubber stamp. They don't have the authority to challenge or overturn the report. All they have the right to do is to determine a sanction. So it's the investigator who basically makes the decision, and the investigator has a tremendous amount of discretion as to whom they speak to, meaning which witnesses, and in which order, as well as which evidence to include in the report, and which evidence they ignore. And in my view, that's too much power to be imbued with one person."

He much prefers the approach that "some universities use, where they have independent investigators who write a report, and then a panel has a hearing that's almost like a mini-trial. In those cases, you may still have problems, but at least you've had three or four or five independent people judge the events and you can ask why the investigator did this or that. But at DU, you have confirmation bias and people who have minimal training and may have little to no experience in this area making decisions that may have significant impact on the life of a student. And we're not just talking about going to a different college. We're talking about being expelled, being branded a sex offender and perhaps not getting into another college and not being able to follow up on your career path, be it law enforcement, government, medical school."

To put it mildly, Miltenberg's arguments are controversial, with critics suggesting that he's essentially giving aid and comfort to would-be college abusers, many of whom appear to be privileged white males (although Neal, Miltenberg's ex-CSU-Pueblo student client, is African-American). Last month, when Secretary of Education Betsy DeVos argued that, as the Washington Post put it, "too many college students have been treated unfairly under Obama-era sexual assault policy," she was also pilloried, for reasons that confuse Miltenberg.

"This isn't a zero-sum game," he says. "Various groups have co-opted various parts of this argument for their interests, meaning that it's supposed to be man versus woman, and it all comes down to the rights of victims, or how we treat rape. But something that hasn't been factored in is that in every judicial process, it's important to hear from everyone involved in the process to be able to gauge if the processes are reasonable and fair. You can have a process that allows for young women to feel safe from retaliation and to feel emotionally secure coming forward and making these allegations, where they know their allegations are taken seriously. But you can also have a process that's transparent and fair and equitable and gives the accused an opportunity to present his complete narrative before an objective, well-trained, independent panel. You can have both of those things."

Likewise, Miltenberg objects to equating lawsuits by the likes of John Doe and cases such as the one involving Austin Wilkerson, a onetime CU Boulder student who served only one year in work release after being found guilty of rape.

"With John Doe, you don't have any of that," Miltenberg emphasizes. "You don't have a criminal case at all. You have what, in another day and age, might have been considered some miscommunication of young people feeling out their own sexuality. That's not to say — and I don't want to be killed for saying this — that a sexual assault didn't occur. But it does mean there should be a mechanism that's safe and comfortable for the allegations to be made and a process that's fair to the accused, too."

One more unexpected detail: The latest John Doe would like to be readmitted to DU; Miltenberg says he liked everything about the university except the way it dealt with the accusation against him.

Click to read the January 2016 John Doe versus University of Denver lawsuit and the separate August 2017 John Doe v. DU complaint.