At the University of North Dakota (UND) the unthinkable has become a reality. A student has been found guilty of sexual assault despite the fact that local police refused to charge him with a crime – any crime. In fact, the police have charged his accuser with lying about the very incident that led to his campus conviction. And the punishment is not insignificant. Former student Caleb Warner has been banned by UND from setting foot on any North Dakota public campus for three years. Meanwhile, his accuser has been wanted by the Grand Forks Sheriff's Department for more than a year on the charge of making a false report to law enforcement.
This tragic incident raises two fundamental questions: 1) How much evidence must UND administrators see before they admit they have made a mistake? and 2) Why are campuses like UND adjudicating rape cases in the first place?
The alleged incident took place back in December of 2009. Sometime in early February of 2010, Warner's accuser reported an allegation of sexual assault to both the university and the Grand Forks Police Department. UND held a hearing for Warner on February 11, 2010. On February 16, he was informed that he had been found guilty of the broad charges of "Violations of Criminal or Civil Laws, Sexual Assault, and Interference.” In order to find Warner “guilty”, UND had to use the "preponderance of the evidence" standard, which is the “probably” standard used in civil cases.
The Foundation for Individual Rights in Education, or FIRE, has been the national leader of the opposition to a federal Department of Education mandate, which is forcing more universities to adopt the preponderance of evidence standard in rape cases. Under this mandate, universities cannot receive federal funding, including financial aid for students, unless they adopt the lower standard of proof in rape cases. FIRE predicted it would result in more wrongful convictions. And FIRE was right.
In Warner's case, the police and the university arrived at completely different conclusions when analyzing the same incident. Evidence gathered by the professionals in the Grand Forks Police Department showed that Warner's accuser had not told the truth about being sexually assaulted by Warner. The deception was so clear that, on May 13, 2010, the Grand Forks County District Court formally charged Warner's accuser with filing "False information or report to law enforcement officers or security officials." A warrant for her arrest was issued on May 17, 2010. To date, she has failed to appear to answer the charges against her. In other words, she has been a fugitive from justice for more than a year.
Warner's attorney, Steven Light, wrote a letter to UND General Counsel Julie Ann Evans on July 28, 2010, asking for a rehearing in light of this unusual turn of events. UND's student code allows re-hearings with no time limit when substantial new information unavailable during a prior hearing is uncovered. Yet on August 26, then-UND Vice President for Student Affairs Robert H. Boyd denied the request, erroneously calling it an "appeal" – rather than a request for re-hearing - and disallowing it because more than five days had passed since the guilty finding. For the record, most of my eighteen year old “Introduction to Criminal Justice” students understand the different between a motion for retrial, based on new facts, and an appeal, based on old law.
On May 11, 2011, my good friends at FIRE wrote UND President Robert O. Kelley pointing out the university's serious procedural errors and its failure to reconsider the case. FIRE added an even more important point; namely, that Warner's name could not be cleared by the courts so long as his accuser persisted in her flight from the law. FIRE further noted that it was unfair for UND to deny Warner a rehearing simply because his accuser had not been convicted of lying to the police. That conviction is not likely so long as she is a fugitive from justice not meeting her legal obligations.
On May 20, University Counsel responded to FIRE - once again denying Warner's request for a rehearing. Evans admitted in the letter that the university used the very same evidence to find Caleb Warner guilty of sexual assault that the police and prosecutor used to charge his accuser with lying to law enforcement. Evans further insisted that the fact that Warner's accuser had not responded to the charge against her was meaningless and that she could not even assume that his accuser knew about the charge against her. Evans states in part: “Clearly, the only ‘new testimony’ would be that of the opinion of Officer Vigness, i.e. that the victim lied to the police. This would not be substantial new evidence. This would be an unproven allegation.”
But since there has been an arrest warrant issued there must, at minimum, be probable cause that Warner’s accuser lied. According to the 4th Amendment to the Constitution – made binding on North Dakota through the Fourteenth Amendment - no warrants can be issued on less than probable cause. But that is not enough for Evans. She wants the charges “proven” under the standard of “proof beyond a reasonable doubt.” The situation may be roughly summarized as follows: The justice system must abide by “proof beyond a reasonable doubt” when dealing with accusers. But UND may use “preponderance of evidence” when dealing with the accused.
There is no indication whatsoever that Evans has contemplated the possibility that there is something very wrong with the UND judicial system – legally or morally speaking. Her smug arrogance and condescension provide little hope for a quick remedy to an obvious injustice. Nonetheless, I would strongly urge everyone reading this column to call President Kelley’s office and demand justice for Caleb Warner. And UND alumni should also write Kelley’s office and announce that they are ceasing all donations until Caleb Warner is both cleared and compensated for his mistreatment at the hands of the UND administration. Those interested in doing so may simply follow this link: http://und.edu/president/.
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