Thursday, September 19, 2019

UW Oshkosh student says his rights have been violated in sexual assault investigation, pushes federal lawsuit

The lawsuit stems from a sexual encounter after an off campus social event in March.
By Miles Maguire
Fallout from a sexual encounter between two UW Oshkosh students has landed in federal court, with the male plaintiff arguing that the school has “flagrantly violated” his constitutional rights in pursuing the matter.

The case stems from a party sponsored on March 16 by a campus sorority at Winkler’s Westward Ho on County Road S, according to court papers. One of the sorority sisters invited a member of a campus fraternity to attend as her guest, and the two of them took part in the event along “with many other male and female students of the university,” the court filing says.

At the end of the evening, the partygoers returned to town by bus. Eventually the two Oshkosh students wound up in the female’s bedroom, where they engaged in sex, according to the lawsuit.

On May 13 the female student contacted the university’s Interim Dean of Students, Joann “Buzz” Bares, and reported that “the sexual interactions on the evening of March 16, 2019, were not consensual,” court papers state. That same day Bares wrote to the male student to notify him that an investigation had been started.

The male student has filed the case as John Doe and asked that he be allowed to remain anonymous. His first name is revealed in multiple places in the lawsuit, however, and a last name is also included in a part of a hearing transcript that is quoted from, although it isn’t clear whether that is the plaintiff’s last name.

At this point, the plaintiff’s side of the story is detailed in the complaint that has been filed. The woman’s side of the story is considered confidential so that her account of the events has not been revealed publicly.

The plaintiff is seeking damages for the alleged violation of his rights to due process and equal protection under the Constitution as well as an injunction to force the university to make changes in the way it pursues the investigation.

“The allegations in this case could have both an immediate and lasting impact for plaintiff,” the lawsuit states. “He may be forced to withdraw from his classes and move out of his housing. His personal relationships might suffer. And he could face difficulty obtaining educational and employment opportunities down the road.”

The lawsuit includes both evidence-based and procedural objections to the way that the university has handled the case.

For example, the lawsuit says that the university has ignored three emails, two from male students and one from a female student, that testify to the good character of the plaintiff. The two from male students seem to indicate that they each had had sex with the woman who brought the complaint. Redacted versions of the emails are included in the court file.

The university’s position on this issue of past sexual activity is that it is not relevant. “I want to make it abundantly clear that this hearing is about this specific incident involving the respondent and the complainant,” said Abby Sylvia, associate director of residence life, in a Sept. 10 email. “While this is an educational and administrative hearing and not a court of law, the law does protect the sexual history of a complainant,” said Sylvia, who is serving as the hearing examiner in the case.

The plaintiff has also been barred from having his attorney cross-examine the complainant by asking her questions directly, according to court papers. Instead questions would be written on cards and read aloud by a hearing examiner.

“Note cards may be effective for high school students to give class presentations; however, they are not effective for attorneys to examine and cross examine witnesses, especially when given to another to ask,” the plaintiff’s attorney, Peter J. Culp, argued. “Requiring the presentation of questions by note cards to be asked by another removes the give and take of conversations” and would allow “time for a witness to form and fashion responses to hide the truth, etc.”

Culp also criticized the way that the hearing examiner was chosen, her separate communications with the complainant and perceived conflicts of interest in the process. Sylvia and the university’s representative, Associate Dean of Students John Palmer, both report to Art Munin, associate vice chancellor and dean of students. Culp desribes Palmer’s role as that of a prosecutor.

In addition both the hearing examiner and the university representative who will present the complainant’s case are represented by lawyers from the UW System.

“That would be as if one law firm represents a judge and the district attorney’s office in the same case involving the same parties,” Culp said. “This conflict of interest is actual and seemingly violates one or more Supreme Court rules.”

Another issue that Culp raises is the use of a hearing examiner as opposed to a hearing committee to review the case, the latter being the plaintiff’s preference. “If due process matters at all, plaintiff should have been given the opportunity to decide if the matter is heard by committee or by hearing examiner, much like participants in both the civil and criminal justice systems are able to choose between a bench trial before a judge or a jury trial of his or her peers.”

The standard policy of the UW System is not to comment on pending litigation, and UW Oshkosh specifically declined the opportunity to comment on this case.

Culp was traveling and did not immediately respond to a request for comment.

The case was filed Sept. 11 in Winnebago County Circuit Court but then was moved to the U.S. District Court for Eastern Wisconsin on Sept. 16.

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