A Penn State University student suspended after he was accused of sexually assaulting another student filed a federal lawsuit challenging the university’s process for investigating sexual abuse claims.
The student, who is identified only as “John Doe,” contends the university’s policy violated his due process rights, leaving him unable to effectively defend himself.
The case involves an 18-year-old male freshman who had a consensual sexual encounter with a female student while enrolled at Penn State’s Altoona campus in November 2016. The woman agreed part of the encounter was consensual, but alleged he performed an additional sex act on her against her will.
Penn State determined the allegations were founded and suspended the student from the summer of 2018 through the spring of 2019.
Andrew Shubin of State College, attorney for the accused student, said his case is among multiple federal lawsuits filed nationwide that challenge policies universities and colleges instituted in 2011 based on a mandate from the U.S. Department of Education.
The mandate, which impacts all universities and colleges nationwide, made several significant changes, including lowering the standard of proof in sexual assault cases from “clear and convincing evidence” to a “preponderance of the evidence” — the lowest threshold in law.
Penn State further altered its policy so that neither the accused student nor the victim appear at a hearing, which precludes either party from confronting and cross- examining witnesses. Instead, cases are assigned to an investigator who evaluates the claims, including interviewing the accused student and alleged victim. The investigator then prepares a report for a committee, which decides if the allegations are founded or unfounded.
The committee gives each party the opportunity to respond to findings in the report. Shubin contends that is not sufficient to protect the accused student’s rights.
“These are usually ‘he said, she said’ cases where credibility is incredibly important,” Shubin said. “The only way to test credibility in the legal system is cross examination.”
Shubin noted the new policy impacts only sexual abuse investigations. Students accused of any other type of offense are still provided a hearing at which they can confront their accuser.
“The stakes are arguably much higher when it comes to sexual misconduct, yet the rights given in sexual misconducts case is far less,” Shubin said.
The lawsuit asks a judge to declare his client’s right to due process was violated and award him monetary damages. It also seeks an order directing the university to vacate its finding that the allegation was founded, remove the disciplinary action from his file and to reinstate him.
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