The young Chicago man was notified on a Friday (Sept. 10) that the woman he had known since high school had charged him with rape. He was told also that his guilt or innocence would be decided at a hearing to be held in only four days.
The accused, who maintains that he and the woman had sex by mutual consent, hurriedly arranged to be represented by Bushemi, who was able to get the hearing delayed only one day.
On the morning of the hearing, the lawyer for the accused rapist submitted the names of eight witnesses-including three fraternity members who were allegedly prepared to testify that the woman “was all over” the accused at the party prior to the alleged rape.
But his lawyer was not allowed to call any of his witnesses. It was ruled that the accused’s witness list had not been presented enough in advance.
Nor did the accused man get to confront his accuser. The woman remained out of view in another room. She gave her testimony and responses to questions on audio tape.
The hearing was held before a panel of four administrators in Christ College, where the university’s honors program is held. It lasted 11 hours, until 3:30 a.m., primarily because of heated objections to the process by the accused’s attorney. The alleged victim spent most of it in a room with Welch, a university police officer and a school counselor. To pass the time and alleviate the anger and frustration she felt, she threw her shoes against a wall, she says.
“We were getting very frustrated, and no one could tell me what was going on,” she recalls. “I felt like I had so much anger inside of me. I would see him (the accused) pass by, and I knew he was there. We were trying to figure out how to get out our aggressions, and I think Shannon said, ‘Take off your shoes and throw them against the wall,’ so I did.”
In spite of the protests by Bushemi, only the victim, her three witnesses and the accused were allowed to testify during the hearing. When their testimony was concluded, deliberations were conducted and a verdict handed down.
The young man from Chicago was found guilty as charged. His lawyer’s request for an appeal was rejected.
Because this was not a court of law but rather a disciplinary hearing before administration officials on the private university’s campus, the sentence was not incarceration. It was expulsion.
The Chicago man was expelled from campus for as long as his alleged victim, also a junior, continues to attend classes here.
When the results of the rape hearing were announced, Welch and several other women rang the school’s victory bell-traditionally sounded for football wins-and she told a local newspaper the decision was “a victory for all women on VU’s campus.”
Branded a rapist (but not named) by campus administrators and in local news stories, the suspended student responded with the lawsuit charging he was wrongfully suspended, defamed and deprived of his rights. Because the young man and woman have not been publicly identified and no criminal charges filed, their identities are being withheld from this article.
“He was basically accused of being a rapist and run out of Valparaiso on a rail,” Bushemi says. “Just because you are at a private university doesn’t mean you give up your rights to fairness.”
University administrators have refused to discuss the case in light of the pending lawsuit.
In its legal response to the lawsuit, Valparaiso University has denied that it deprived the Chicago man of his rights, wrongfully expelled him or defamed him. In a press release, school officials noted that as a private university, Valparaiso has the right to make rules governing student behavior and that its procedures to enforce those rules “have nothing to do with whether a student is guilty or not guilty at civil or criminal levels. . . .”
Officials noted also that “in the past year, Valparaiso, along with many other colleges and universities across the United States, have found themselves wrestling with issues related to sexual assault on campus . . . (it) is a problem of national dimension.”
In the press release, Valparaiso officials added that their school “seeks to be an academic community in which relationships between women and men are characterized by genuine respect and a deep regard for the God-given dignity that has been bestowed upon each person.”
The accused rapist has declined repeated requests for an interview, but Bushemi has made frequent statements and issued press releases in taking his client’s case to the public.
“We didn’t have an impartial fact-finding body or hearing panel because the university made it clear that (its) motive was to implement and make sure it had a date-rape policy that worked, and it was clear they were looking for a test case that said it worked,” the lawyer says.
His client has not enrolled in another school yet, in part because he now carries the stigma of having been convicted-even if only on campus-of rape, Bushemi contends.
The dapper, media-wise attorney, who served a 13-year term as a state legislator, has characterized the Chicago woman as a seductress who came to regret her actions at the fraternity house and later filed charges only at the urging of militant anti-rape feminists on campus.
Bushemi has repeatedly insinuated that the apology note to the alleged victim was written only after her friends “intimidated and coerced” the Chicago man into writing it. Women activists on campus, in response, have accused the lawyer and his client of “playing on every rape myth there is.”
As the issue of sexual violence on campus arose in the late 1980s and early 1990s-in part due to a widely publicized University of Arizona survey in which one of four women of college age said they had been sexually assaulted-women’s groups began pressuring campuses for “victim-friendly” disciplinary procedures.
Efforts on campuses to alleviate some of the stress inflicted on victims who testify in criminal rape trials have now apparently sparked a growing backlash from some students-most but not all of them males-who claim that the constitutional rights of the accused are being trampled.
Tiny Antioch College in Yellow Springs, Ohio, last year became the subject of national ridicule-not to mention a mocking skit on “Saturday Night Live,” when, after an alleged date rape on campus, it instituted a policy in which a couple must mutually agree on each and every “level of sexual intimacy” leading up to and including intercourse.
At Antioch, the penalty for having sexual contact without consent, or with someone too drunk to give consent, is expulsion.
Protests over such strict and punitive sexual-offense policies have arisen not only at Antioch and Valparaiso but also at Swarthmore College, Williams College, Brown University and Yale University. At Yale, as in the case at Valparaiso, a male student charged with rape was expelled after a campus hearing even though he denied the charge and no physical evidence was presented.
“(Campus disciplinary boards) are given considerable license to determine guilt or innocence and have no obligation to recognize U.S. civil procedures or legal traditions,” a Wesleyan University student editor noted in a Wall Street Journal guest editorial last fall. “But most troubling is that student judiciary boards are rapidly turning into new front groups as campus radicals fight the backlash against political correctness.”
The Chronicle of Higher Education cited the Valparaiso case, along with several others on campuses across the nation, in a Feb. 9 article that said, in part: “A growing number of students complain that campus judicial systems are strongholds of political correctness. Students charged with such offenses as date rape and racial and sexual harassment, they say, are considered guilty until proven innocent. Other students say the way most hearings are set up makes them unfair regardless of the issues at stake.”
The issue of sexual assaults on campus cannot be disregarded in this debate because it is, in large part, the crime that has exposed the constitutional cracks in campus judicial proceedings, in which, critics say, political correctness often overrules constitutional fairness.
“That is a charge that has increased enormously in the last three years. The word `quandary’ was made to describe the situation universities find themselves in,” says Philip Burling, a Boston attorney and authority on school and college law.
In a 1993 study on campus acquaintance rape published by the National Association of College and University Attorneys, Burling wrote that campus sexual assaults have reached epidemic proportions and warned that “more than any other crime, acquaintance rape has the potential to shatter a college community.”
Although administrators have the option of turning criminal charges over to local law-enforcement officials, student victims often are unwilling to do that because of public scrutiny and because the slow criminal-court process leaves them virtually stranded on campus with those whom they have accused, Burling says.
“It is hands down the most difficult issue that comes up,” Burling says. “In virtually every case, you have no witnesses-just two people and their words. It is very difficult because you may have two people perhaps living in the same dormitory, and all of a sudden, universities are dealing with life-or-death matters,” Burling says.
“In many cases, especially those involving sexual assault, you are asking schools to resolve something that the courts don’t do well, either,” he says, noting that many insurance companies are considering dropping colleges and universities because of such crimes.
Dennis E. Gregory, former president of the six-year-old national Association for Student Judicial Affairs, agrees that serious crimes pose a problem for campus adjudicators. “It certainly is difficult; that is one of the reasons for our association’s existence,” says Gregory, who is director of housing at Wake Forest University in North Carolina.
In general, judges have ruled that colleges must stick with published procedures and guidelines for campus disciplinary hearings and ensure a fair hearing in which both sides present testimony and evidence. Private schools, however, have been given more latitude by courts reluctant to step onto campuses out of the public sphere, according to Gregory.
The rape case involving the two Chicagoans and the outpouring of charges and countercharges that have arisen since have fractured the campus.
“It has really divided our community in a sense,” says student body president Singh. “A lot of undergraduates are very passionate about the issues, and there have been a lot of tensions. Some see it clearly as a rape, while the law students perceive it from a legal perspective. The university has had a difficult time balancing all considerations.”
A number of Valparaiso’s law students have castigated the university’s judicial procedures as secretive Star Chamber proceedings in which, they charge, basic constitutional rights are ignored or cast aside.
“The investigation and prosecution of a crime is a public function, and I think a university that tries to take over that function is put in a very bad spot,” says David Welter, a Valparaiso attorney and an adjunct professor at the university’s law school.
“I just don’t know how they can strike a balance between the accused and the accuser,” Welter says.
Welter was asked to represent a male student in a separate rape case before the Valparaiso disciplinary panel.
The woman who brought the charges dropped them because she felt the university had become overly cautious following the lawsuit by the Chicago man. The woman objected also to Welter’s potential presence at her hearing as a lawyer for the accused, Kirsten Lee says.
The school’s sexual-assault committee is now considering adoption of a provision enacted by other campuses that bans lawyers from student disciplinary hearings, Lee says.
Among the harshest critics of the university’s handling of the rape case has been Mike Thompson, editor of its law school’s newspaper, The Forum.
“The university seemed to be so eager to implement its new policy that it forgot any concern about actually finding the truth,” Thompson says.
In an article titled “The Rape of Due Process: An Incident at Valparaiso,” Thompson lambasted the university’s disciplinary-hearing process and its decision in the case.
“The First Amendment,” he wrote, was “trumped by date rape at Valparaiso.”
Lee agrees the university has become more cautious after the suit filing. But even though the university may now tend to be less protective of women’s rights and more protective of itself, she says she welcomes the airing of controversy at Valparaiso. “Even the fact that there has been a backlash over this means that we are finally looking at the problem,” she says. “No one would be angry if they didn’t feel threatened.”
A question that hangs over the Valparaiso controversy was one raised by a law student quoted in the Thompson article:
“If this student is a danger to the community, then by simply suspending him from the university, they are leaving him free to commit the crime again. If he’s not a danger to society, then why has he been kicked off?”
The alleged victim, who has returned to classes and is still undergoing counseling, said she did not bring criminal charges because she had heard “so many horrible things about criminal prosecutions and about women being put on trial and the way the court system hurts the victim. I felt it was not something I wanted to go through, but I wanted to take steps so I wouldn’t see him on campus all the time.”
Even though she won in her effort to have her former friend banished from the campus, she continues to find reminders of him there, she says. For all that university officials have done-rightly or wrongly-to protect her, they cannot erase what happened from her mind, she says.
“For me, it can be something as nondescript as the color red, because he wore red that night,” she says. “For a while, anyone in a red shirt, red hair or a red car, I thought, ‘It’s him!’ Even now, if I’ve had a nightmare the night before, if I see someone who looks like him, I’ll freeze. My life is not back to normal, obviously.”
Looking back, the Chicago woman said she is not certain whether she would bring charges against her former friend if she had it all to do again.
“At least now I am able to get on with my studying and finish my education. I’m glad I don’t have to see him on campus, but it’s not like there is a guarantee I won’t see him again,” she says.
And though his attorneys say that the Chicago man has been shattered by the allegations of rape and by his expulsion from school, his alleged victim said she doubts that he understands what he did to her life that night in his fraternity house.
“I have a feeling he has done what so many other rapists do: He has convinced himself that he didn’t really rape me. I don’t think he understands even now how badly he hurt me or how much he has taken away from me.”
