A New Legal Strategy in Sexual Assault Cases

A recent Title IX case at King’s College in Pennsylvania has highlighted what experts say is a new legal strategy for sexual assault victims whose alleged attackers take the aggressive approach of filing a counterclaim.

The strategy hinges on the argument that a malicious Title IX counterclaim can qualify as “abuse of process,” a term that traditionally refers to abuses of the legal process. But a recent report from a federal magistrate judge supports the idea that the Title IX process is quasi-judicial and can be abused just as a legal proceeding can—despite universities’ frequent disclaimers that Title IX processes and legal proceedings are not one and the same.

The report draws on Title IX regulations that went into effect in 2020, which guarantee due process for students accused of sexual misconduct on campus according to a standard that aligns with traditional civil or criminal cases.

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Intimidation Campaign

In 2020, a female student at King’s College in Wilkes-Barre filed a Title IX complaint alleging a male student raped her in his dorm while she was too drunk to consent. He responded with a countercomplaint, alleging that she had instead sexually abused and harassed him while they were in a relationship the previous year.

The university ultimately found the female student was not responsible for any sexual misconduct, while the male student, Daniel Boye, was found responsible for rape and expelled. (King’s College declined to comment on the case.)

The counterclaim was just one part of what the female student’s lawyer, Barry Dyller, described as a retaliatory campaign designed to intimidate. Boye also filed a still-ongoing lawsuit against the complainant’s mother for defamation after she emailed the college asking them to investigate the rape. And he filed a Title IX complaint against the victim’s friend for allegedly attempting to intimidate a witness who could have exonerated him. That Title IX complaint was dismissed.

To push back against this campaign, the three women, represented by Dyller, filed a lawsuit against Boye and his lawyer, Raul Jauregui, alleging abuse of the Title IX process, among other charges.

The lawsuit, which is being heard in the United States District Court for the Middle District of Pennsylvania, argues that the Title IX complaint against the female student was filed to intimidate her into dropping her own complaint—not because the accused believed he had been abused by his accuser.

“You can’t make false allegations in order to avoid responsibility for your actions,” Dyller told inside Higher Ed. “And that’s what they did. They made false allegations [that] she raped him. We have transcripts of hearings with his sworn testimony, where he basically says that she never forced him to do anything.”

In a motion to dismiss the suit, the defendants fought the claim that Boye did not genuinely believe he had been abused by the complainant, as well as the idea that a private college’s Title IX process falls within the tort of abuse of process.

Jauregui, who declined to be interviewed about ongoing litigation, explained the defense’s position via email.

“‘Process’ is a legal term of art which requires the government to be involved. A school enforcing its private Title IX-compliant sexual harassment policy is not the government,” he said. “It would be distressing to suddenly turn every single complainant into a potential ‘abuser of process.’ Doing that also runs counter to the state of the law. And surely you agree that it would be unfair if only complainants at public schools became liable?”

Dyller responded that Pennsylvania’s law provides a broad definition of abuse of process that has previously encompassed more than just legal proceedings.

Ultimately, the magistrate judge agreed with the plaintiffs and recommended the abuse-of-process charges proceed.

“These regulations provide the parties to a Title IX proceeding with a full range of procedural rights including notice, an opportunity to be heard and present witnesses and evidence, the assistance of retained counsel, and a right to appeal adverse decisions,” the judge wrote. “Therefore, these disciplinary hearings establish the legal rights, duties, or privileges of a party after a process that embodies the attributes of judicial proceedings. As such, they are—and should be deemed to be—the type of legal process which, if abused, gives rise to an abuse of process claim.”

Although the 2020 regulations were criticized at the time for their potential to retraumatize victims by subjecting them to live questioning, in this case, they have worked to the accuser’s benefit, Dyller said.

Retaliatory Counterclaims

The decision to uphold the abuse-of-process charges must still be adopted by the district court. But if it is, Dyller said, it will set a powerful example for how to combat Title IX counterclaims in the future, and possibly even discourage respondents from filing them in the first place.

“To me, and I think other similar Title IX lawyers, it’s really important. Because it’s important to deter false-type pleadings and false-type defenses, which just further damage people who are already victims,” he said.

Other Title IX researchers and lawyers agree. Laura Dunn, the founder of L.L. Dunn Law Firm in Washington, D.C., said that the case had been the talk of her circle of Title IX lawyers due to its potential impact on the increasingly common strategy of filing counterclaims—claims she said are almost always transparently retaliatory.

“I ask why [respondents] filed the counterclaim, and nine times out of 10 they’ll say, ‘My attorney told me to,’” she said.

But she also noted that it takes great strength and stamina for a victim to file a lawsuit after they’ve already been “traumatized and exhausted” both by the assault itself and by participating in multiple different legal and campus hearings. That may explain why such a legal strategy has been so slow to catch on.

Dyller echoed that sentiment, noting that the client in this case was particularly resilient.

“It was all nonsense and just set up to apply this incredible pressure most young women just couldn’t take,” he said.

KC Johnson, a professor who has written extensively about Title IX litigation, said that the example could have unintended consequences—such as leading students accused of assault to file abuse-of-process claims against their accusers, even if they were unfounded, in the same way retaliatory counterclaims are used now.

In the past, he said, efforts to quash retaliatory defenses in Title IX cases have actually led respondents and their lawyers to develop new strategies. The prevalence of counterclaims, for example, arose from the testimony of victims claiming they were too drunk to consent, which prompted alleged perpetrators to argue that they were also drunk—and why should they be punished if the victim wasn’t punished as well?

Well, Johnson said the response often went, you didn’t file a complaint.

“The message is, you have to file a counterclaim, because if you don’t file a counterclaim, it’s going to hurt your subsequent Title IX claim if you’re making a selective-enforcement allegation,” he said. “That kind of process I think was very, very unusual in 2012 or 2013. I think we almost never saw counterclaims filed and now [it] has become much more common.”

‘Quasi-Judicial’ Status

This isn’t the first time in recent history that the courts have debated whether a Title IX investigation at a private college qualifies as a quasi-judicial process.

In Khan vs. Yale University et. al., the accused, Saifullah Khan, a former Yale student, filed a defamation lawsuit against his accuser for statements she had made about him during the court proceedings, The Hartford Courant reported. A federal court had originally dismissed his claim based on the idea that the hearing at Yale was quasi-judicial, and thus the accuser’s speech was fully protected from such claims.

Khan appealed the decision on the basis that the hearing, which took place prior to the implementation of the 2020 regulations, could not be quasi-judicial because it did not give Khan the chance to respond to the accuser.

The case is still ongoing but differs from the King’s College case in that it occurred before those new regulations were put into place. The reported rape at King’s College took place mere weeks after colleges were required to comply with the new rules.

It remains to be seen what other implications could arise from Title IX investigations being considered quasi-judicial.