Michigan State Sexual Assault Case 910AM Superstation Interview
This interview originally aired on Detroit 910AM Superstation on July 9th, 2019. The below interview with Andrew Miltenberg begins at 1:36:00 and ends at 1:51:00.
Nolan: Welcome back.
We’re gonna change subjects now and talk about an interesting case out at the University… I’m sorry, at Michigan State University, where a young man who was accused of sexual assault, in what he says was a consensual sexual relationship, as part of a Title IX investigation, accused of sexual assault and is suing the university for denying him his due process rights. And we have his attorney on the line, Andrew Miltenberg, of Nesenoff & Miltenberg. Andrew Miltenberg is described as the go-to attorney for defending sexual assault allegations made on campus.
Andrew Miltenberg, thanks for joining us. You’ve been involved in 70 cases involving young men who say that they were wrongly accused, and now you’re looking at the possibility of a class-action suit against Michigan State University.
Andrew: That’s correct. You know, Michigan State, as everyone knows in Michigan and Detroit well knows, has had a very checkered couple of years, starting with Larry Nasser. But what people don’t know and what we hope they’re going to find out is it’s also at the top off the list of schools that, in reaction to Nasser, Michigan State has started, in the last several years, to treat men accused of sexual assault with virtually no rights and no opportunity to defend themselves.
Nolan: Talk about the current case you have pending.
Andrew: Well, the current case follows a fact pattern that is fairly similar to cases all over the country. And it starts with what one party believes is a consensual relationship, what both parties may believe is a consensual relationship. Somewhere along the way, something happens where one party thinks that there was no consent. The other thinks there was consent. Sometimes there’s a revenge factor if a young man breaks up with a woman, whatever it is.
In this case, there is a young man who was having a consensual relationship with a young lady and thought that them having intercourse on an evening was consensual. She said it wasn’t and he ended up being suspended. And so we now know that these suspensions or expulsions follow you around for life. They impact your ability to go to graduate school. They affect your ability to get a job in many, many fields. And it really compromises a young person’s future to a significant extent. And so these cases, especially now, this class action is looking to reverse all of those decisions and expunge, or clear the record of every male student at Michigan State who was tried and found responsible, and either suspended or expelled.
Nolan: Tried not in a court but by the Title IX apparatus, correct?
Andrew: Correct. Better said than I did. Tried by the apparatus of Title IX within a school which really doesn’t give…and more so at Michigan State than other places, doesn’t give someone a fair and full opportunity to be heard in defense of allegations against them.
Nolan: They have very little in the way of due process rights.
Andrew: Very, very little, nothing that we, as adults in America, in this country, would recognize as due process rights, the students at Michigan State have. They’re not allowed to confront witnesses. They’re not allowed to have any kind of cross-examination. They’re not necessarily allowed to have a live hearing. The investigators take a certain approach, what’s called a trauma-informed approach, which essentially means to believe all of the allegations, and leave it to the accused to disprove them.
Terry: The burden of proof basically changes. You go from the presumption…
Nolan: Our other attorney in the room, attorney Terry Johnson.
Terry: Yeah. The burden of proof changes from, you know, “I’m presumed innocent and it’s up to you to prove me guilty” to now it is ” I’m guilty” and I have to sometimes prove a negative, you know. How do I prove that I didn’t do something?
Nolan: And you have to do so, Andrew Miltenberg, without the ability to question your accuser, correct?
Andrew: That’s correct and it becomes a, in most cases, because these are people who, at some point, were having a consensual relationship. So there is rarely direct evidence around. There isn’t someone an eyewitness that saw this happen, in most cases. These are just he said she said cases. And so the fact that you start with the premise that the accuser is correct means exactly what your colleague just said, that you’re starting having to prove a negative without any real evidence and without the right to develop any real evidence.
Terry: And one of the things… just full disclosure, you know, I’m an alum of Michigan State, and Milton, I’ll take you back. You may not be aware of this but back when I was in school there was an incident back in Emmons Hall back in the 80s. It was known as the Emmons Seven, and it was pretty much something very similar to what you’re saying. And I saw some of the things that those guys went through, simply because, and I hear him writing that down in the background, he’s probably going to go back and use that one.
But I witnessed this, you know, with some people who have been accused of things, and they actually went to a full-blown trial and were found not guilty but it was still the after-effects that followed them around, you know, because again, and I hate to say this, but if a woman says you did it and you deny it, in today’s world, you know, you’re guilty.
Nolan: We’ve seen it in the Kavanaugh hearings.
Terry: Yeah, absolutely.
Andrew: Absolutely. And I think that it was essentially college campuses where the #MeToo movement or what we now refer to as the #MeToo movement sort of took hold. And it’s exactly as you said, that there is a… almost appears to be a concerted effort to deprive the accused of due process. So the questions in these cases we try to make less about who did what to whom, and more about did you give a full and fair opportunity to develop their case and to be heard to the accused? That’s not to say there aren’t real rapes on campus and there aren’t real sexual assaults on campus.
It is to say though, and I think this is very significant, and I think more so at Michigan State than some other places, there isn’t a real effort to get at the whole truth. There is an effort to just push the accused out.
Nolan: Now, my contention, Andrew Miltenberg, the attorney representing an accused student at Michigan State, my contention has always been that a sexual assault is a crime. I mean, it is a crime under the criminal codes of every state in the nation. And if someone is murdered on campus, it’s also a crime, obviously. If someone is beaten, assaulted in any other way, that case moves into the criminal justice system of the community where the campus is located. And I can’t for the life of me figure out why we’re treating sexual assaults differently, why they’re being adjudicated by the university bureaucracy.
Why aren’t these cases, if a sexual assault occurs, and a sexual assault is a crime, if what this woman is accusing your client of doing is true, that’s a crime. That should be adjudicated in the criminal justice system, where there are due process guarantees and protections for both parties. Is part of the problem in your mind the fact that under Title IX, universities become the investigator, the prosecutor and the judge?
Andrew: Very much so. You hit the nail on the head. You just raised what is part of the greater debate nationally on the issue of Title IX and sexual assault on campus. I mean we have an apparatus in this country to handle criminal matters. And just as you said, you wouldn’t expect or even want University officials to handle a shooting on campus or some other type of crime, be it violent or otherwise. So why are they handling sexual assault cases?
Terry: It’s about money.
Andrew: I think you’re right about that. I think universities handle them because they want to sort of keep it quiet. Because if the public at large finds out that there are multiple sexual assaults on a campus and the police are investigating it, I can tell you as the father of a 20-year-old daughter, that if I read about that, Michigan State would be crossed off my list for potential colleges for my daughter. So it’s bad for business [crosstalk 00:10:38] done right.
Terry: Here’s the other part of that you’ve got to keep in mind. And, Nolan, you were dead on when you talked about the criminal justice system in the local community. However, that takes time, and what happens on a college campus is they will suspend you, expel you, until that whole thing is resolved. And that’s their mechanism of dealing with the problem. They even take away your due process at that point. The presumption of innocence goes away until the charges are adjudicated.
Nolan: Andrew Miltenberg, I wanna ask you what’s going on in the Education Department because, the Education Secretary, Betsy DeVos, is trying to restore some due process to these Title IX investigations. Is she on the right track?
Andrew: I think so. I think so. Look, there was a definite need and remains a definite need to limit and make certain that campuses are safe places for men and women, and people of all gender orientation, and they shouldn’t have to suffer sexual assault. And that if there is a sexual assault that it’s dealt with in a diligent, timely and professional manner. I think that Betsy DeVos, Secretary of Education DeVos is trying very hard to walk a very fine line between making certain that there are due process rights to an accused and at the same time addressing the fact that no one seems to be embracing the concept that local law enforcement should be handling these matters. She’s trying hard to do something about that.
Nolan: I think that solves it but turning this into a class action case against Michigan State University, what’s the significance of that?
Andrew: Well, the significance of that is hopefully, we can address what happens to accused persons at Michigan State on a greater level. You know, one of the most frustrating things about these cases is that it’s only the people with financial resources that can reach out to an attorney who works in this area and try to get redress, which leaves a tremendous amount of the student population unable to even try to fix what was done to them in the way of taking away their due process rights, and therefore, so terribly and tragically affecting their future.
So the hope is that the court will certify this as a class and we’ll be able to reach out to and represent students at Michigan State who, you know, right now we don’t know about and who may not come forward for fear of being stigmatized, or for fear of not having the resources to try to fix this. So in this way, the University will have certain obligations to notify all of its alumni and this will hopefully give them an opportunity to be heard.
Nolan: Andrew Miltenberg, attorney for Michigan State University student who says he was wrongly accused of sexual assault. You’ll have to keep us informed on the progress of your class action request and thank you for joining us this morning.
Andrew: Thank you very much for having me. You both really understand the topic and I appreciate your time.
Nolan: Thank you.
Terry: Thank you.
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