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.