Law firms focus on campus sex cases
September 07, 2017
By Dugan Arnett
As the spring semester for area colleges drew to a close in May, a branch of a New York-based law firm opened its doors in the heart of Boston’s Back Bay.
Located in a small space between a flower shop and a modeling agency, Nesenoff & Miltenberg appears to be similar to the slew of other law offices scattered across the city, with one notable exception: The vast majority of the firm’s work is dedicated to defending those accused of campus sexual assault or misconduct.
As increasing numbers of campus sexual assault victims have come forward in recent years — a development that victim advocates attribute to a far less-hostile campus climate — more of their accused attackers have found themselves facing school disciplinary sanctions, including expulsion.
In response, a small but growing number of attorneys have been dedicated to defending them.
While some firms, including Nesenoff & Miltenberg, have gained national reputations for focusing almost solely on college sexual assault cases, others — including Boston-area firms Gelb & Gelb and Zalkind Duncan & Bernstein — have come to make it part of their areas of expertise.
“It’s actually a very logical development,’’ says S. Daniel Carter, president of Safety Advisors for Educational Campuses and a longtime victims’ rights advocate. “There is very specialized subject-matter expertise that is needed to represent either the accused or the accuser in a campus sexual assault case, so it makes sense that there would be more and more attorneys devoting themselves to working on this issue.’’
At the center of many of these cases is Title IX, a federal law enacted in 1972 to prohibit discrimination on the basis of sex within programs or activities receiving federal aid.
In its early years, it was most commonly associated with gender equality in athletics. But in 2011, in an effort to address what it called “deeply troubling’’ statistics regarding the prevalence of sexual violence, the US Department of Education’s Office for Civil Rights issued a “Dear Colleague’’ letter addressing Title IX as it applies to campus sexual assault. (According to a 2014 White House report, nearly 1 in 5 women overall and 1 in 71 men had experienced rape or attempted rape.)
The 19-page document, part of the Obama administration’s vigorous push against campus sexual misconduct, laid out a number of guidelines for schools dealing with such cases. Among them, schools should use “a preponderance of evidence’’ — a lower standard of proof than in the criminal system — when such cases came before school disciplinary panels.
To victims’ advocates, this represented a significant step in the right direction: It compelled schools to expedite the adjudication process in these types of cases, while serving as a reminder to them that noncompliance could result in federal funding cuts.
Perhaps most important, it provided victims with some semblance of justice.
“There’s been a lot of misconduct that’s gone on on campuses with impunity,’’ says Maureen Gallagher, policy director at Jane Doe Inc., a Massachusetts coalition against sexual assault and domestic violence. “And many campuses are doing a really good job of following through with their Title IX requirements and addressing sexual misconduct cases when they come to them.’’
To others, however, the change represented a new brand of injustice.
Andrew Miltenberg, a founding partner at Nesenoff & Miltenberg and a man described by Newsweek as a “go-to lawyer for male respondents in sexual assault cases,’’ became acquainted with the issue a few years ago, when he took a call about a sexual assault case at Vassar College.
To that point, Miltenberg’s 20-plus-year legal career had been largely devoted to partnership disputes and business litigation. But as he began looking into the school’s handling of the case in question — as well as the processes by which schools now investigate accusations of sexual assault or misconduct — he grew increasingly unsettled.
What the change had wrought, he came to believe, was a system in which fears over a potential loss of federal funding, as well as bad publicity and future liability lawsuits, had left schools too willing to rule against the accused.
“In all these cases, you’ve got a school that’s under a tremendous governmental and public pressure to aggressively deal with these cases and hand out findings of responsibility,’’ says Miltenberg. “And I think for the most part, [colleges] have begun to have almost a preordained result — which is usually a finding against the accused.’’
Unlike some firms, Miltenberg doesn’t handle criminal complaints, focusing instead on cases at the university level.
In some instances, the firm gets involved early on, preparing those accused of sexual misconduct for a university Title IX investigation and accompanying them to appearances before school disciplinary panels. Other times, it enters the fray after a school has made a ruling, suing in federal court in an effort to reverse the finding, expunge a client’s record, and, in some cases, get the accused back into school.
The idea that the process has shifted against the accused is a view that has gained support in high places.
Secretary of Education Betsy DeVos on Thursday announced a rollback of government guidelines regarding Title IX assault claims, saying the Obama administration’s directive resulted in colleges denying due process to people facing sexual misconduct allegations.
Earlier last week, the Foundation for Individual Rights in Education — a group that has spoken out against the Title IX guidelines — released a report detailing what it believes to be a widespread failure on the part of schools to provide students accused of disciplinary violations with basic procedural protections.
In analyzing the disciplinary procedures at more than 50 top-tier colleges and universities, including several in New England, the organization contended that nearly three-quarters of the schools fail to guarantee students a presumption of innocence — and that fewer than half require school fact-finders to be impartial.
“A lot of people don’t realize just how quickly and with how little process that a school can completely disrupt a student’s educational and career prospects,’’ says Samantha Harris, vice president of policy research for the foundation.
To plenty of others, however, the idea that those accused of sexual assault are being somehow railroaded is foolish.
If the 2011 guidelines did anything, says Colby Bruno, senior legal counsel for the Boston-based Victim Rights Law Center, they merely leveled a playing field historically slanted in favor of sexual assault perpetrators. While it might be true, Bruno adds, that more young men are being disciplined for sexual misconduct, the reason is that, for the first time, schools are holding offenders responsible.
“The misconception is that these cases somehow started to become unfair to the accused,’’ she says. “But where were these people 25 years ago when the victims [were] so unfairly treated and so placed in the position of being in a hostile environment because of the complaint they made?’’
What’s more, says Patty McNamara, staff attorney at the Boston Area Rape Crisis Center, the campus disciplinary process provides an alternative to what can be a lengthy and grueling criminal proceeding.
“Lots of survivors would choose not to pursue a criminal justice system response, because they don’t want the perpetrator to go to jail,’’ she says. “What they want is for the perpetrator to leave them alone.’’
For his part, Miltenberg makes no effort to downplay the polarizing nature of his work. “How can you defend a rapist?’’ is a question with which he’s grown very familiar.
But as the father of two daughters, as well as a son, he considers himself uniquely positioned to approach the issue objectively.
He’s quick to point out that his firm is discerning in the cases it takes. He says he must believe in a client’s innocence and feel a school has made significant procedural errors or that its system is muddled or unfair; all told, he says, the firm accepts less than a third of the cases it gets inquiries about.
Even so, there’s been no lack of clients.
Miltenberg says the decision to open an office in Boston was prompted by the array of inquiries that routinely come from the college-dense region.
“There just hasn’t been a let-up since we’ve started,’’ says Marybeth Sydor, a Title IX consultant with Nesenoff & Miltenberg who left her job at a small liberal arts college last year to join the firm full time.
“Demand has been incredible.’’