Student accused of rape sues Augustana over discipline

An Augustana University student accused of rape has filed a lawsuit against the school claiming it is violating his rights by moving to expel him before he has a chance to defend himself in court.

The federal lawsuit filed last week by Koh Evan Tsuruta calls for the university to suspend its disciplinary hearing until his criminal case is resolved.

An Augustana official said the university’s action follows federal guidelines, and that Tsuruta has no legal grounds to force it to delay its hearing while his criminal case is pending.

According to an arrest affidavit, the victim told police she was raped on July 3 following a night at a local bar. She was out with friends, including Tsuruta, and later the group went to Tsuruta’s apartment in the 2400 block of South Grange Avenue.

After others had left the apartment, Tsuruta made sexual comments and then undressed. The victim told police she tried to leave the apartment but Tsuruta picked her up tossed her on the bed, pulled down her underwear and shorts, and raped her.

The victim said she was able to get away from Tsuruta. The affidavit states that the victim confronted Tsuruta about the incident via text message. Tsuruta allegedly apologized for his actions. She reported it to Sioux Falls Police on Aug. 1.

Rick Tupper, director of campus safety for Augustana University, said the school’s hands are tied. In 2011, the Department of Education sent a letter to universities ordering them to conduct swift investigations following reports of sexual assault.

The letter mandated a disciplinary hearing take place within a 60 days of a report being made. Punishments can range suspensions to expulsions. Tupper said the university proceedings and criminal proceedings are held separately.

“The question of staying isn’t something we can agree to,” Tupper said. “It would have to be a challenge to the Department of Education.”

Jonathan Taylor, founder and publisher of A Voice of for Male Students, an organization that advocates for “educational equality for men and boys,” is aware of at least 89 similar lawsuit filed across the nation.

Taylor said universities have a much lower burden of proof than the criminal justice system, and the result is often a lack of due process for the accused, he said.

“I think that really whenever a student faces an accusation like that, and I hate to say it, they should go in with the expectation that probably going to lose on the university side,” Taylor said. “They will stand a significantly better chance in the criminal justice system side.”

Courtney Bowie, the legal director for ACLU South Dakota, said she can see both sides of the argument. The university has an obligation under Title IX to keep the campus safe for women, so their needs are urgent.

On the other hand, the due process afforded criminal defendants is not the same as the due process of a student in a school proceeding. Taking part in the university’s hearing could harm his criminal case.

“The school has an obligation to provide a safe place for woman,” Bowie said. “So the fact they are proceeding makes perfect sense. I also know, as someone who cares about the rights of someone accused of a crime, that he has a right not to incriminate himself.”

Tsuruta declined to comment on the lawsuit citing pending litigation.