Case shows split in school, police inquiries into rape claim

AP News
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Posted: Oct 13, 2015 12:31 PM

SIOUX FALLS, S.D. (AP) — A South Dakota student accused of sexual assault is suing the school that suspended him, a case that highlights the differences in how university and criminal investigations of such reports are carried out.

Koh Evan Tsuruta, who is charged with rape, assault and false imprisonment, has denied the allegations and wants Augustana University to halt its investigation that will determine if he is expelled until his criminal case is resolved. A federal judge has denied his request, and Tsuruta is considering whether to appeal.

The lawsuit focuses on federal nondiscrimination policies that require schools to conduct swift investigations into reports of sexual assault with rules and a purpose different from those of criminal trials.

Augustana's proceedings use the lower "preponderance of evidence" standard, not the "beyond a reasonable doubt" standard of criminal cases, said Tsuruta's attorney, Shawn Nichols. He said the investigation denies Tsuruta his right to confront witnesses, his right to counsel, his right against self-incrimination and presumes guilt instead of innocence.

"Nothing about it is intuitive," Nichols said. "You have educators who have little desire or training to adjudicate criminal matters."

Tsuruta is already suspended, is under court order to have no contact with his accuser and is living three hours away in Iowa, making the proceedings unnecessary, said Nichols.

Augustana's campus safety director and Vince Roche, an attorney representing the school, did not respond to messages seeking comment.

In a court filing, Roche said the university is fulfilling its obligations under the federal Title IX by following its grievance procedures, and is ensuring fairness to both Tsuruta and the woman who accused him. He did not give examples.

Title IX prohibits discrimination on the basis of sex, saying it interferes with students' right to receive an education. Sexual harassment and sexual violence fall under that umbrella. A 2011 memo from the Department of Education told schools not to wait for the conclusion of criminal investigations and take immediate steps to protect students.

Lisa Maatz, a spokeswoman for the Washington-based American Association of University Women, said university investigations thus have a different goal than criminal trials, as a school is responsible for maintaining a safe campus. She said constitutional protections are offered in criminal courts because a person's liberties are at stake, and universities don't jail people for violating student codes of conduct.

"They're looking to see what they can do right off the bat to help the survivor maintain what she needs to do to stay in school, and also to see if any school rules have been violated," Maatz said.

Tsuruta, 25, was arrested in August and indicted in relation to a July 3 incident at his apartment. A 23-year-old woman said that after returning with others from a bar and being left alone with Tsuruta, he prevented her from leaving and raped her, according to the arrest affidavit. He is scheduled to be arraigned Thursday.

Tsuruta, who was suspended shortly after being arrested, denied the allegations to the university through his attorney but indicated that he would not provide a statement for Augustana's investigation while criminal charges are pending. Augustana's investigator said that without it, "the only conclusion this Investigation can draw is that if he had obtained consent, he would have shared how he done so," according to court records.

Jonathan Taylor, director of the advocacy group Boys and Men in Education, called that language "disconcerting" and said it puts the burden of proof on the person accused.

Taylor said at least 89 similar lawsuits have been filed across the nation since 1992, with only a handful of students successfully arguing for a stay of a suspension or expulsion.

Mark Hathaway, a Los Angeles attorney who has sat in on more than a dozen university sexual assault hearings but is not involved in Tsuruta's case, said he believes the criminal court system is better equipped to handle such serious issues when a student's education and future is at stake.

Maatz disagreed that universities lack the ability or expertise to handle such proceedings. She said Title IX has been around for more than 40 years, and schools have been enforcing their own student codes of conduct for centuries.

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Follow Dirk Lammers on Twitter at http://twitter.com/ddlammers