Due Process Rights Help Vindicate Victims of Sexual Assault

A former Sacred Heart University student accused of making up rape allegations against two football players to gain sympathy from a prospective boyfriend faces trial this week in Connecticut on charges of falsely reporting an incident and tampering with or fabricating physical evidence. She faces up to six years in prison if convicted. According to press reports published in the Connecticut Post, Nikki Yovino claimed that on October 15, 2016, she had been at a football club party at a private home when the two men “pulled her into a bathroom in the basement of the house and sexually assaulted her.” According to the Post, Yovino told police the men held her down and each took a turn sexually assaulting her.

While both of the football players admitted having sex with Yovino in the bathroom, they said it was consensual. Facing expulsion from the university, both men agreed to withdraw and Yovino continued to claim to be the victim of a brutal rape—until January, 2017 when she finally admitted in an interview with Detective Walberto Cotto that “she made up the allegation of sexual assault against (the football players) because it was the first thing that came to mind.” According to the arrest warrant affidavit, Yovino told the investigators that she didn’t want to lose another male student as a “potential boyfriend,” She stated that she believed that when the other male student heard the allegation it would make him sympathetic to her.

Pretrial pleas for “accelerated rehabilitation” for Yovino were denied by Superior Court Judge Maureen Dennis who stated in court: “This kind of false report is lethal to all true victims.” In objecting to accelerated rehabilitation for Yovino, which would have allowed her to have her charges dismissed after two years of probation, prosecutors in the case argued that false accusations of rape “malign every sexual assault victim.”

Indeed, they do. Furthermore, the Yovino case should make it clear to all that allegations of sexual assault are better handled by civil authorities, not campus courts. Colleges and universities are poorly equipped to conduct the kinds of police investigations that could uncover the facts surrounding rape allegations like those made by Yovino. Too often, due process is denied in the campus tribunals that have been erected in the wake of the Obama era Title IX mandate. For instance, last year, at the University of Pennsylvania, a settlement was reached in the case of a student who was found “responsible” by a three-person panel for sexual misconduct in 2016 and given a two-year suspension from the university. The student denied his guilt and claimed that Penn had denied him due process and discriminated against him based on his race and gender, violating Title IX, which protects against sex-based discrimination in schools. The District Court judge for the Eastern District of Pennsylvania ruled that the court would move forward with his claim that Penn had not provided a thorough and fair investigation, that Penn had not properly trained members of the campus panel, and that Penn had failed to protect him from gender discrimination. Penn settled the case.

Had the case moved forward Penn would have had to allow open investigation of their Title IX adjudication process. Most universities have chosen to settle these lawsuits—rather than open themselves up to such scrutiny. Race may play a role as the Penn case points out. An article published last year in The Atlantic entitled “The Question of Race in Campus Sexual Assault Cases” asked the question: “Is the system biased against men of color?” Although the data to answer this question with certainty is not yet available, the author provides preliminary data that offers a clear direction for further research. For example, Colgate was recently investigated by the Office of Civil Rights for potential race discrimination on its sexual assault adjudication process and although the university was cleared, the OCR found significant disparities in the numbers. In the 2013-14 academic year, 4.2 percent of Colgate’s students were black but in that same year, black male students made up 40 percent of the students formally adjudicated.

The Atlantic lists several other schools involved in civil lawsuits filed by accused male students with what the magazine called “racial aspects” including Amherst, Butler, Drexel, Indiana University of Pennsylvania, Swarthmore, the University of Findlay in Ohio, Penn, and William Paterson University in New Jersey. “Each lawsuit states that the student or students were subject to specious charges and in some cases abrupt expulsions because they were minorities.” A 2015 article, by Harvard Law School professor Jeannie Suk Gerson, found that “in general, the administrators and faculty members she has spoken with who work on sexual misconduct cases indicate that “most of the complaints they see are against minorities.”

The denial of due process protections to the accused—whatever their race—is certainly a civil rights issue and demands systematic data collection and public scrutiny. Secretary of Education, Betsy DeVos recognizes the real violations of civil rights that have been occurring under Title IX and promised to “end the era of rule by letter” begun by the Obama administration. The reference was to the “Dear Colleague” letter sent to colleges and universities on April 4, 2011 mandating new procedures notably harsher toward the accused. Schools responded quickly—building campus court systems that villainized the accused and often denied due process by discouraging cross-examination of witnesses, refusing legal representation, and implementing a lower standard of evidence to determine guilt.

The Foundation for Individual Rights in Education issued “Spotlight on Due Process 2017” which rated the top 53 universities in the country based on 10 fundamental elements of due process and found that nearly 74 percent of America’s top universities do not even guarantee students that they will be presumed innocent until proven guilty. Fewer than half of the schools (47 percent) require that fact finders and board members (the university’s judge and jury) be impartial. Forty-five of the 53 universities studied received a D or F rating for at least one disciplinary policy. Seventy-nine percent received a D or F for protecting the due process rights of accused students.

It is likely that the combination of a new and improved Office of Civil Rights under DeVos, and the new “spotlight on due process” may play a role in encouraging colleges and universities to provide a fair process for both the victims and the accuse. But, it is more likely that the increasingly costly settlements that universities are paying to those denied justice will play an even greater role. The Chronicle of Higher Education has reported that lawsuits from students accused of sexual assault cost colleges more than $200,000 per case. According to United Educators, a risk management and insurance firm, reviewed dozens of cases from 2011 to 2015 in which colleges filed insurance claims involving accused students and found that in 40 percent of the cases, institutions paid out more than $200,000. On one occasion the legal fight cost the college $1 million. This is likely just the start. As more and more schools (currently 89 settlements since the Dear Colleague letter) find themselves on the losing end of due process decisions involving those accused of sexual assault, it is likely that an increasing number will begin to discover that the accused may have rights also.

There is a lot at stake here. Victims of sexual assault need to be believed and protected. But, to truly protect the rights of victims and their alleged perpetrators, these cases must be investigated by civil authorities, and tried in criminal courts with proper protections for all.