As an attorney who often deals with the intersection of criminal defense litigation and Title IX investigations, I was intrigued by a recent news article addressing the dismissal of Jovon Robinson from the Auburn University football team.
In July 2016, a female student at Auburn sent an email to Auburn’s head football coach, Gus Malzahn, claiming that Robinson had physically thrown her out of his room and in doing so, smashed her head into the door and skinned her knees. This troubling email contributed to the football program’s decision to permanently remove Robinson from the team. The accuser has since recanted her testimony, claiming that the physical violence did not occur and that she was angry that Robinson wanted her to leave his room.
Although no formal charges or complaints were made to law enforcement officials, the accuser’s misguided anger has irreparably damaged Robinson’s reputation and jeopardized his future educational and professional aspirations.
Jovon is Not Alone
Lena Dunham, the star of HBO’s “Girls,” recently wrote a book titled, “Not That Kind of Girl,” wherein she describes being raped by “Barry” while attending Oberlin College, which describes an alcohol and drug-induced sexual encounter. The book explains that after much contemplation and discussions with friends, Dunham realized that she had been raped because she knew that she did not consent to the sexual conduct.
While Barry’s last name was not mentioned, she clearly identified her alleged assailant through her description of him in the book. Although claiming that “Barry” is a pseudonym and that “any resemblance to a person with this name is an unfortunate and surreal coincidence,” she steadfastly maintained that the story itself was not fabricated. After the real Barry was identified, Dunham acknowledged that this individual did not rape her. While we may never know whether Dunham was the victim of sexual assault at Oberlin, we do know that the real Barry was forced to defend himself against allegations that he was a rapist, despite never having met Dunham.
False Allegations Ruin Lives While Undermining Real Victims
The incidents involving Robinson and Barry provide a unique insight into the complex and often unfair consequences that can stem from allegations of sexual misconduct in the university setting. Sadly, such stories are not uncommon. They serve as a very public reminder of the ramifications false allegations can have. This is not to suggest that these individuals experience a comparable degree of pain and suffering as victims of domestic or sexual violence, or that victims of domestic and/or sexually violent offenses should be discredited. To the contrary, individuals who concoct false allegations marginalize those who have truly been victimized and further impede legitimate investigation and prosecution of perpetrators of such offenses. Thus, there is an overarching societal interest in ensuring people are not falsely accused of such heinous crimes.
The particular procedures and relative safeguards will ultimately depend on the manner in which the allegations were reported. If the accuser files a formal police report or complaint, the matter will be investigated as a criminal offense. If criminal charges are filed, the individual is entitled to the protections afforded by the due process clause and can defend against the allegations in the criminal courts. If no referral is made to law enforcement, the allegations will likely be investigated by the university’s Title IX Office only. Despite the significant repercussions that can result from an adverse finding by the university, the process provides those accused of misconduct with little, if any, similar due process protections.
What’s Next For the Falsely Accused?
Even if the allegations are ultimately proven to be false, what is the recourse for an individual who has been wrongfully accused of a pernicious offense? Unfortunately, their options are somewhat limited and often fail to address the substantial harm inflicted. For instance, the individual could pursue a defamation case against their accuser. However, the likelihood for meaningful recovery is minimal in light of the accuser’s inability to satisfy a favorable judgment. Over the past several years, college students have looked to the educational institutions for recovery under various theories of liability, including state colleges and universities depriving students of a property interest in their continued enrollment without procedural due process, in violation of the 14th Amendment. See Doe v. Alger, No. 5:15-CV-00035, 2016 WL 1274025, at *12 (W.D. Va. Mar. 31, 2016).
Regardless of whether the individual succeeds in litigation against the accuser or the university, any monetary recovery is insufficient to address the life-altering consequences that stem from such false allegations. Meanwhile, the perpetrator of the false allegation is rarely held accountable for the impact of these malicious accusations. The current culture and potential for systematic abuse will result in increased litigation brought by the wrongfully accused, starting with more widespread challenges to Title IX proceedings. Eric Long