Say you're a male college student accused at the university level of having non-consensual sex with a fellow student. If, according to attorney Andrew Miltenberg, the alleged victim had sent a text immediately before the incident that read, "I want to fuck you on the refrigerator," the message almost certainly wouldn't be considered during a university hearing about possible punishment — if such a hearing took place at all.
Miltenberg makes this provocative (and politically incorrect) assertion against the backdrop of a case we reported about a few weeks ago: A former University of Colorado Boulder student who was expelled after being accused of sexually assaulting two fellow students has filed a lawsuit that disputes the claims against him and castigates the school's system of investigating them. And while Miltenberg recognizes that plenty of folks will see this observation as proof that he's a victim-blamer — an amoral sort who attempts to exonerate young men by making it seem as if their female accusers were asking for it — he works hard to soften such impressions. His tone of voice is understanding and sympathetic when he talks about women who may have been sexually harassed, abused or assaulted, he says he refuses to take cases in which he thinks potential clients in these kinds of circumstances are actually responsible for wrongdoing, and when tackling ancillary topics, he attempts not to press too many hot buttons.
But he can't avoid them entirely.
Prior to our previous item's publication, Miltenberg, a principal in Nesenoff & Miltenberg, a New York-based law firm that's made a specialty of handling such matters, wasn't available to discuss the case, filed on behalf of a client identified as John Doe. Now, however, he's speaking out about this filing and two others in Colorado from 2016 — a John Doe complaint against the University of Denver and a suit on behalf of Grant Neal, a Colorado State University-Pueblo student whose situation we detailed in April.
Neal was a standout athlete for Regis Jesuit High School who was indefinitely suspended from CSU-Pueblo for a sexual encounter with a female athletic trainer for the football team that he insists was consensual. A key element of the case involves when Neal put on a condom.
These aren't the only disputes Miltenberg is overseeing in the state. Among twelve cases already before federal courts nationwide, four others that are likely to be filed in the near future and 20 to 25 complaints that are currently at the university-disciplinary level is one involving a male student at a thus-far unnamed Colorado institution who "has been the subject of allegations that no one can really get a handle on," he allows. "It's sort of like a whisper campaign against him, and he's in the midst of losing a scholarship. And there's another one in Colorado where someone's about to lose an ROTC scholarship." After a pause, he adds, "I don't know what the hell is going on with you guys out there."
Actually, he's got a pretty good idea, at least from his perspective. He criticizes the investigatory procedures used by CU Boulder, CSU-Pueblo and DU as patently unfair to those accused of wrongdoing and believes such policies linger in part because such colleges "are, in many cases, facing a very vocal minority at the school that has sort of hijacked this debate. They've bullied, intimidated or frightened schools into going past what would be a fair, transparent and reasonable approach. And administrators are saying, 'We don't want to be the school that looks like we're not attending to women's rights.'"
CU Boulder is certainly under scrutiny in this area, owing to a Title IX investigation of CU Boulder undertaken by the U.S. Department of Education Office for Civil Rights in 2013, accusations of sexual misconduct within CU Boulder's philosophy department that surfaced in 2014, and a more recent survey showing that 92 percent of sexual-assault victims at the university don't report the incidents to CU or law enforcement. But CU Boulder spokesman Ryan Huff defended the university's actions regarding the expulsion case in a statement that reads: "We are confident that the campus administers its Title IX obligations in a manner that is not biased in favor of or against any student. We believe that this investigation was administered appropriately, that the plaintiff received a fair opportunity to confront the evidence against him, and that his claims are unfounded."
No surprise that Miltenberg disagrees on both the facts of the case and the subsequent inquiry by the university, which employs what he describes as "the single investigative model, where one person does the investigation, interviews the parties, interviews the witnesses and basically comes up with the result."
This methodology is used by both CU Boulder and DU, Miltenberg maintains, and he characterizes CSU-Pueblo's approach as a variation on the same theme — "although there was never a full-blown investigation or hearing in the Grant Neal case. It was more like a meeting." In any event, he sees the single investigative model as "outdated and ineffective. Basically, you're putting one person in charge of the entire process, as opposed to the model many schools have moved to, where there are multiple investigators — usually two — interviewing all the witnesses and the parties and issuing a report. After that, the parties have an opportunity to comment on that report, the investigators issue a final report, and the Title IX coordinator decides if there's enough information for a hearing, usually before one person or a panel."
In Miltenberg's view, this "more expansive, more transparent model" is far preferable to the single investigative model, which "used to be the preferred way of moving forward because it was quicker, more efficient, less costly. You didn't have to employ multiple investigators, you didn't have to go through the process of writing up a report and having comments made about it, then having another person decide if there's enough information for a hearing — and then have a third person or set of people have the actual hearing."
The extra time and expense necessitated by Miltenberg's preferred system is worth it, he feels, because of the need to be equitable to the accused as well as the alleged victim. "We're not just talking about a mark on your permanent record," he says about the former. "We're talking about being branded a sexual offender and that appearing on your transcript...and if you want to go to graduate school, if you want to work in law enforcement, if you want to join the military, if you want a job that requires a license, all of a sudden that's over with. You're not getting those things. And that's only the beginning."
He uses the case of former CSU-Pueblo student Neal as an example. "He was a pillar of the Denver community, a state wrestling champ, a football champ, a soft-spoken guy from several generations of Denver residents who lives with his grandmother and has connections all over the community — and he was treated like he shot John Lennon." He says Neal and others in his situation are often traumatized by being removed from their college society and forced to put their lives on hold, and the inevitable delays in the quest for justice in court (he accuses the Colorado Attorney General's office of procedural foot-dragging in a couple of his current cases) exacerbate the situation no matter the outcome.
At the same time, Miltenburg acknowledges that there's plenty of legitimately horrific sexual behavior taking place on college campuses, as illustrated by the story of Austin Wilkerson, a CU Boulder student convicted of unlawful sexual assault and sexual assault against a helpless victim yet given no jail time; when he received two years of work release and two years to life on probation, controversy erupted.
He's no apologist for Wilkerson or his ilk, stressing that "there should be a system in place at every college and university across the country where, if women feel they've been the subject of harassment or non-consensual sexual touching or even worse, they feel they can come forward and it will be taken seriously, it will be investigated promptly and there will be a real outcome — not just a boys-will-be-boys-type outcome."
But Miltenberg also thinks that "what's happening at places like CSU-Pueblo, Boulder and Denver is an institutional sense that this is how we're going to do things — and that way of doing things invariably ends up with findings against men who often aren't given the chance to properly defend themselves. The system is set up in such a way that my ability to interview the accuser, interview witnesses, ask questions about evidence or any of the things you'd want to ask about this kind of event is either nonexistent or severely limited."
As an example of what he means, Miltenberg offers a "composite" of conversations he says he's had with Title IX coordinators assigned to cases on which he's worked. It's presented below as a dialogue in which he's continually stymied in his efforts to examine evidence collected by investigators or offer exculpatory facts (some of which probably wouldn't be allowed at a criminal trial, either).
Title IX coordinator: "Someone had to go to the hospital, and they did a rape kit."
Miltenberg: "Let me see the rape kit."
Title IX coordinator: "You don't get to see the rape kit."
Miltenberg: "But you're telling me there was vaginal bruising, and my client is being charged with a sexual offense."
Title IX coordinator: "It's really a disciplinary offense. It's not a sexual offense — and in any event, it doesn't really come into play as to whether the student breached the disciplinary code."
Miltenberg: "Well, I have 47 Instagrams and text messages from the day before and the day after that say things like, 'I can't wait to see you and I want to fuck you on my refrigerator.' Why isn't the panel reviewing that?"
Title IX coordinator: "Those really have nothing to do with what happened that night."
Miltenberg: "But they really do, because they give a context to the interaction between these people."
Title IX coordinator: "That doesn't inform us about whether your client had consent at that moment."
Miltenberg: "Well, she said she had two drinks over a span of five hours, and she weighs 160 pounds. A forensic toxicologist would tell you it's highly unlikely that the blood-alcohol-content of that person would be beyond a reasonable range."
Title IX coordinator: "We're not really interested in toxicology reports."
Miltenberg: "How can you not be interested? The whole thing turns on whether or not there's consent."
Title IX coordinator: "We're not going to be looking at that."
Miltenberg: "We also have a polygraph report. It was taken by the guy who used to run the Colorado office of the FBI — the chief polygraph technician for the whole district."
Title IX coordinator: "We don't take polygraph test results."
Miltenberg: "Thank God he can at least have a lawyer."
Title IX coordinator: "He can't really have a lawyer at the hearing. If you come, you can't say anything — and because of the preponderance-of-the-evidence standard, we don't have to prove anything. You have to disprove it."
Miltenberg: "Yeah, that's right — but you've taken away all the tools I'd use to disprove something."
Maybe so, but Miltenberg has had plenty of successes in such cases anyhow. For instance, he brought a previous John Doe complaint against CU Boulder in 2014; the university settled the matter the following year for $15,000.
Such victories are accompanied by "a lot of flak," Miltenberg concedes, from critics who see him as championing sexual assaulters deserving of more punishment than they receive at the college level, not less. But in addition to battling on behalf of his clients, he portrays himself as fighting against the party culture that's so pervasive on many campuses ("If it wasn't for alcohol, a lot of these cases would fall by the wayside," he says) and for reform of a system he considers to be "a monument to a lack of due process."
In his view, "there's a way to do this fairly, a way to do it reasonably, where there's a path for people to make complaints and not feel threatened or dismissed, but where we're also fair to all the Grant Neals out there. We've gotten to a place that's so polarizing — where there's no common ground anymore between the people who are apparently leading the debate on this. But this is fixable. I really believe it is."
Look below to see the lawsuits in the CU Boulder, CSU-Pueblo and DU cases.