For the third time in as many months, a student whose college deemed him a rapist has filed suit in federal court, this time against Xavier University. But the case filed by former Xavier student Dez Wells differs in two important respects. First, Wells’ accuser, Kristen Rogers, went to the authorities–who after thoroughly reviewing the evidence, declined to file charges. Second, Wells is a star basketball player (he transferred to the University of Maryland), which means that this case–unlike the comparable ones at St. Joe’s and Vassar–is receiving attention from the media. (Though not, to date, from the New York Times: does Wells’ story not fit the preferred narrative?)
The procedures that Xavier used to brand Wells a rapist are, by this point, depressingly familiar. As with all students charged at Xavier, Wells had the right to an advisor, but not a lawyer. (Xavier’s prohibition is unusually extreme–the chosen advisor “may not be an individual who has specialized legal training, including someone possessing a Juris Doctor degree, or other legal degree, even if such person is a member of the Xavier community and does not currently practice law.”) In a revealing commentary on the nature of its disciplinary processes, Xavier denies a student charged with sexual assault the right to cross-examine his accuser–a right that students charged with lesser offenses retain. Wells was judged according to the preponderance-of-evidence threshold; in his lawsuit, he claimed that the tribunal actually placed the burden of proof on him. Even if it did not, it’s easy to see how an undergraduate without legal training could believe he had to prove his innocence in a tribunal that only demands 50.01 percent to convict, with adjudicators drawn from a campus environment where most automatically presume sexual assault accusers never lie. In a mere twenty-seven days, Xavier not only completed its investigation, but conducted its judicial proceedings: the tribunal informed Wells that he had been found “responsible for rape.”
But this case had a twist: unlike most college disciplinary matters, a campus police officer had escorted Wells to the hospital, which conducted a rape exam, and the incident was reported to the police. And unlike Xavier, the authorities actually conducted a criminal investigation. The complaint alleges that Cincinnati prosecutor Joseph Deters communicated the authorities’ concerns to Xavier officials, and urged Xavier to hold off investigating the matter until authorities had completed their own investigation. The complaint alleges that Xavier declined Deters’ request lest the university “alienate” the Office for Civil Rights. The “Dear Colleague” letter struck again.
The authorities eventually determined that there was no basis to pursue criminal charges, and Deters subsequently deemed the Xavier process “fundamentally unfair.” He persuasively noted that “there is something flawed with a procedure where a young man and his accused appear before a group of people, which I would suggest probably isn’t well trained in assessing these types of cases and they sit and tell their stories. No lawyers, no nothing.”
The police and prosecutor said that there was no sexual assault. Xavier, based on its Alice-in-Wonderland procedures and speed-of-light inquiry, determined that Wells is a rapist. Who should the public believe?