University of Oregon Retaliates – Sues Female Student Gang-Rape Survivor

WASHINGTON - Feb. 25, 2015 - PRLog -- WASHINGTON, D.C.  (February 25, 2015):  The University of Oregon has apparently become the first institution of higher education to sue a woman the school itself found to have been raped - indeed, gang raped.

        The law suit, technically a counter suit, was filed in retaliation for the woman's own law suit against the university and its basketball coach because of her rape.  The university has admitted obtaining the student’s normally-confidential counseling records from the campus health center, and it is now seeking to require the woman or her attorney to pay its sizable attorney's fees for the litigation.

        The university claims that the woman's law suit wold discourage other rape victims from moving forward, but it is the university's tactic of suing victims which is most likely to have an adverse effect on rape survivors, as well as on men accused of rape who have been treated unfairly or even unconstitutionally, says public interest law professor John Banzhaf, one of the first to report on the growing number of law suits brought over alleged sexual assaults - law suits which may have cost schools more than $100 million so far.

        While a school is certainly entitled to defend itself against purely frivolous law suits, and even to seek payment of its attorneys fees, here even the university itself found the three students charged with the gang rape to have engaged in "sexual misconduct," and the police had "no doubt the incidents occurred."

        Dissatisfied with the school’s handling of the situation, and alleging that its carelessness was a factor in her gang rape, the female student sought relief in the courts, and that's when her university retaliated by countersuing and demanding payment of attorney's fees.

        Few students, even with well-to-do parents, can afford to pay an attorney his hourly rate to sue a university, so many such cases can only be brought on a contingency fee basis.  That means that the attorney has calculated that his chance of winning on her behalf, and of being compensated about one-third the amount  he recovers on her behalf, exceeds his expected costs of bringing the litigation.

        But if the university countersues, and the lawyer now has to handle essentially two different law suits against an opponent with very deep pockets and lots of legal talent, and perhaps even face the possibility of having to pay some of the university's attorney's fees himself, all but the most resolute attorneys are likely to give up, or at very least decline to accept any such cases which may come up in the future.

        That means that women who cannot obtain justice, or protection from a rapist, through the criminal justice system - since proof beyond a reasonable doubt may be very difficult to provide in many "he said, she said" date rape situations - or through the campus judicial system, may likewise not be able to use the civil justice system since even fewer attorneys will be willing to take on such cases if universities countersue.

        The same, of course, would likely be true for men who have been denied Due Process, and especially the procedural protections schools and other state entities must provide under the U.S. Supreme Court's decision in Mathews v. Eldridge.

        “What may be legal may not always be right,” notes Banzhaf.

        A university which sues its own students who have been involved - as survivors or as accused - in a campus rape allegation may be acting lawfully, but the adverse publicity, loss of student trust, and a natural reluctance of parents to send their children to such a school should weigh very heavily against these tactics, he suggests.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf