But the crackdown, say young men and their lawyers, has come at a cost. Since the Education Department issued a “Dear Colleague” letter in 2011, admonishing colleges to process students’ reports of assault uniformly—with the goals of investigating all cases and preventing new ones—many campus officials believe the underlying message is that they should side with victims, says Brett A. Sokolow, president of the National Center for Higher Education Risk Management, a consulting and law firm. The department’s letter also emphasized that colleges should determine responsibility using the “more likely than not” standard of proof. That’s lower than the “beyond a reasonable doubt” standard required for a criminal conviction.
In the past few months, Mr. Sokolow says he has gotten nearly 60 calls from accused students and their parents—a steep rise from just a year ago. He takes the cases he feels are the strongest (for now, a dozen). “The last thing I want to do,” he says, “is represent a rapist.”
Of the cases Mr. Sokolow has accepted, at various stages of resolution, three young men have had charges against them dismissed following campus investigations or hearings. Three others whose colleges had found them responsible had those findings reversed on appeal, and two who were found responsible reached settlements with their institutions. The rest of the cases are pending.
The problem with that reasoning, say lawyers representing those accused, is that colleges often apply it in cases in which both parties were drunk but not incapacitated. “If the university poorly distinguishes between being merely intoxicated and being incapacitated—and many do—it’s discriminatory to charge only the man,” says Mr. Sokolow. But that is what often happens, he says.