Attorney’s Tactic In Yale Sexual Misconduct Case Raises Questions

NEW HAVEN — In the weeks after the abrupt dismissal of Yale basketball captain Jack Montague shortly before the NCAA Tournament, a whisper campaign unfolded on campus: Protests were held, chalked messages appeared on sidewalks, social media exploded with chatter.

As the rumors about Montague’s disappearance escalated, his lawyer lashed back, criticizing university officials who he said unfairly expelled Montague because of alleged “unconsented to sex.” The lawyer, Max Stern, also released details of the university’s investigation, a move sharply decried by critics as an attack on the accuser.

Stern said Montague had been “pilloried as a ‘whipping boy’ for a campus problem that has galvanized national attention.”

The case epitomizes the highly charged atmosphere on college campuses, illustrating the depth of disagreement and uncertainty about the campus systems that attempt to mete out justice when one student accuses another of sexual assault.

In the eyes of Justin Dillon, a Washington, D.C., attorney who has handled campus misconduct cases nationwide, the case “perfectly captures the hysterical campus climate these days. Highly ambiguous situations are put through an incredibly one-sided process in which the accused are presumed guilty from the start, and the results are sadly predictable.”

Stern is “doing what any good defense attorney with a high-profile case would do,” Dillon said, “getting the counter-narrative out there to show there are very much two sides to this story. … There is nothing to lose when your name is out there and everybody is assuming you are guilty. He has nowhere to go but up.”

But Colby Bruno, who represents those filing complaints as a lawyer for the Victim Rights Law Center in Boston, said Stern’s action is reflective of a pushback from those accused of sexual assault.

“Perpetrators are fighting back as a way to kind of punish survivors,” Bruno said. “They are saying you were better off when you were silent because now I’m going to go out there and just give one side of the story.”

For a lawyer to go public with confidential details of such a case is a breach of privacy, Bruno said, that reopens trauma for a victim and “significantly contributes to the unwillingness of victims to report.”

Montague plans to file a lawsuit against Yale over his expulsion around the end of the month, a spokeswoman for Stern and the family said. Yale University has declined to comment about the case.

More Lawsuits

The discord and disagreement over campus judicial systems has risen to a crescendo since 2011, when the U.S. Department of Education issued a firm reminder to colleges of their obligation under Title IX to provide a safe environment free of sexual harassment and sexual assault. The federal agency warned that the department will review and take action on complaints.

With that urging, colleges have improved education about sexual assault, as well as services for victims of sexual assault, making it easier for those who say they are victims to report it. The result is that the number of reports of sexual assaults filed with campus authorities has soared.

The federal agency also directed colleges to decide sexual assault cases using a “preponderance of evidence” standard — whether the offense was more likely than not to have occurred — rather than the more rigorous “clear and convincing evidence” standard.

Stern and Dillon question the use of the weaker standard when a student’s college degree and future career are in the balance. “Just because it’s not a criminal proceeding doesn’t mean it can’t completely ruin your life,” said Dillon.

Those accused of sexual misconduct on campus have filed more than 120 lawsuits in recent years against their colleges and universities, most contending the campus judicial system treated them unfairly, and some alleging that they were discriminated against under Title IX.

Bruno counters that “the process was always unfair to victims. … No school was providing any kind of due process for victims, no school was following Title IX. … Sure it’s going to feel problematic because it was so one-sided before.”

But, she said, now “schools are implementing Title IX in the exact way that the government intended.”

In the meantime, she said, the backlash has meant that defending alleged assailants in sexual misconduct cases is “becoming a very lucrative area of the law.”

“You know parents will stop at nothing,” Bruno said. “They will pay lots and lots of money per case to get these kids defended.”

Brett Sokolow, who advises colleges on the handling of sexual misconduct cases as president of the National Center for Higher Education Risk Management, said that the pushback from alleged assailants “is going to get much worse before it gets better, once these cases [against the universities] start to win, which they are doing now.” He’s seeing more cases that are not getting dismissed — an initial win — as “judges are getting more acclimated” and seeing that “the college process needs to be looked at more carefully.

He Said, She Said

Montague’s case has a high profile nationally, because of his status — a prominent athlete at Yale on a winning team — and perhaps because of his lawyer’s strategy.

Stern’s statement was drawn from the school’s investigation, including specifics on the frequency and type of sexual contact. These are “undisputed facts,” Stern said, agreed upon by both parties.

Asked if he would release the entire campus investigatory report to enable a fuller understanding of the expulsion, Montague declined through a publicist, saying he was not at liberty to release those documents, but noting they will become public when the suit is filed.

In his two-page statement released on March 14, Stern said that his client was expelled by Yale on Feb.10 after the Yale University-Wide Committee on Sexual Misconduct found that he had “unconsented-to-sex” in October 2014 with a woman student who was a junior at Yale during the past year.

According to Stern, an independent investigator hired by Yale said that Montague developed a relationship with a female student “that led to them sleeping together in Jack’s room on four occasions in the fall of 2014.”

After sexual intercourse on the fourth occasion, both Montague and the female student went their separate ways, but later that same evening, Stern said in his statement, “she reached out to him to meet up, then returned to the room voluntarily, and spent the rest of the night in bed with him.”

“The sole dispute is as to the sexual intercourse in the fourth episode,” Stern wrote. “She stated that she did not consent. He said that she did.”

Stern contends that it “defies logic and common sense that a woman would seek to re-connect and get back into bed with a man who she says forced her to have unwanted sex just hours earlier.”

Advocates for victims of sexual assault counter that such behavior, if it occurred, would not be unlikely for a victim who may be traumatized and confused about what has happened.

Stern’s decision to publicly release selected details of the case — and to omit the full details of the investigation — has led to concern and questions for many.

Samantha Harris, an attorney for the Foundation for Individual Rights, which focuses on civil liberties in colleges, said, “The fact that the attorney [Stern] did this, the fact that it has sort of come to this reflects the fact that the system on campus isn’t working for anyone. … Obviously when you have a party feeling that they’ve been mistreated and their only option is to go public — that’s something that really doesn’t help the situation.”

Fatima Goss Graves, senior vice president of the National Women’s Law Center, said it was impossible to say from the limited information released by Stern exactly what happened in the incident in question.

“I wouldn’t assume that this is all the information,” Graves said. “I think what we know here is very limited.”