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UW-Madison’s disciplinary action raises questions of due process

| Oct 17, 2018 | Criminal Defense |

When a university student is the target of investigation for alleged wrongdoing by law enforcement as well as university authorities, handling the allegations of misconduct independently of the criminal justice process is a standard practice at many universities across the country, including the University of Wisconsin-Madison. However, a student-athlete arraigned last week on two counts of sexual assault and facing possible expulsion over the alleged incident is suing the university on the grounds that continuing disciplinary action while he challenges criminal charges stemming from the alleged incident is a violation of his right to due process. 

The alleged sexual assault occurred in April, and at the end of August, following a university-imposed suspension from the football team, authorities charged the 20-year-old athlete with one count of third-degree sexual assault and one count of second-degree sexual assault of an intoxicated victim. Two women alleged sexual assault by the wide receiver at his apartment, according to the criminal complaint.

When authorities had not yet filed criminal charges by the end of July, the university reinstated the suspended player to the football team and scheduled a disciplinary hearing for the end of August when they would hear the athlete’s statement. Upon receiving notification that authorities planned to file criminal charges, the student’s attorney requested that the university postpone the disciplinary hearing. The university declined the request. 

The lawsuit claims that university officials are sure to find the football player responsible for the alleged assaults and impose severe sanctions on him, potentially including expulsion, if he declines to participate in the disciplinary hearing, yet his participation would involve waiving his Fifth Amendment right against self-incrimination and potentially harm his criminal defense if he chooses to participate. 

This case throws the issue of how to handle students’ claims of sexual assault, with respect for the rights of the accused and accusers alike, into sharp relief for officials at U.S. colleges and universities. Students who face accusations of sexual assault may find it helpful to consult an attorney.