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College sex assault charges are defended on different fronts

  • Birdsall Obear

Sexual assault charges are usually pursued in a criminal trial court. But, as colleges deal more with sexual assault or harassment allegations, a legal defense against sex offenses must go beyond criminal law. Charges against a high-profile former Wisconsin Badgers football player has involved Title IX and campus legal procedures.

The 21-year-old athlete will be tried in Madison on charges that he sexually assaulted two students in April of 2018. On August 20, he was charged with one felony count of second-degree sexual assault of an intoxicated victim and another felony count of third-degree sexual assault. He may argue that the sex was consensual and that the victims were not intoxicated, as they claimed. 

He was also suspended from the football team last summer, but filed a federal lawsuit against the university to prevent expulsion under Title IX laws before his criminal trial. He withdrew this lawsuit and was expelled last semester for violating the university's non-academic misconduct code.

This case, according to some legal experts, reveals the problem facing accused students fighting a civil Title IX investigation while awaiting a criminal trial. They may face the difficult choice of remaining silent and jeopardizing their civil legal defense or waving their constitutional right to remain silent, which can prejudice their criminal defense. This is further complicated because college officials are becoming more aggressive with undertaking Title IX actions because they do not want a potential sexual offender on their campuses.

In this incident, defense attorneys sought a forensics analysis of the victims' phones. They argued that women provided only some text and social media messages and pictures to investigators and that there may be other messages and pictures that would reveal their intentions when they were at the defendant's apartment during the alleged assaults. The attorneys also claimed that there was activity on the women's cell phones at the time of the alleged assaults.

The judge denied this motion and found that it was an unlimited and vague attempt to search for information. But, he also approved a defense request for the testimony of the rape crisis center volunteer who spoke to one of the victims. The counselor-victim privilege did not govern the police interview because the counselor may have guided questions and answers during that interview.

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