Feminist article: The Man Who Defends Men Accused Of Campus Rape
Last December, James Clark* was finishing his first semester as a sophomore at a prestigious New England liberal-arts college when he received an email saying the dean wanted to speak with him. On the phone, the dean informed him that a female classmate had reported Clark for sexual misconduct. An official process began. School investigators began conducting an inquiry into the incident, and a no-contact order was issued, requiring Clark to keep his distance from the accuser while dates for future interviews with the dean were scheduled. Clark was shocked — he’d thought what happened that night was consensual. As a transfer student, he was new on campus, but had made a few friends. They were supportive, but after that phone call, he was essentially alone. Just as their classmates were finishing finals and embarking on winter break, Clark and his accuser were caught in a narrative that would alter the course of their lives forever. From then on, they would be weighted down by the same albatross: She would be the woman who believes she was sexually assaulted, and he would be the man who believes he was falsely accused of assaulting her. [The Cut was unable to reach Clark's accuser for comment.]
Clark immediately called his parents, and they were distraught. What do you do when your 18-year-old son is the accused in a campus sexual-assault case? The accuser had not reported to the police, so the case was being handled through the school's system, which involved an investigation, a hearing, and, if found guilty, an academic punishment. James’s mother, Susan*, thought he needed a lawyer anyway. She began frantically reaching out to attorneys, desperate to find someone to represent Clark in his school's sexual-misconduct hearing. Most lawyers the Clarks contacted weren’t interested in defending James — this wasn't technically a legal case, and what would be the benefit to them, especially given the debates about campus sexual assault raging? But after several phone calls, they found their man: Andrew T. Miltenberg, a New York–based business litigation attorney who had begun to make a name for himself defending young men whom some consider indefensible.
“I remember it was New Year’s Eve. He called us back and we talked about it and he said, ‘I think I can help you,’” Susan tells me. “I said to my husband, ‘I think this man is going to work very hard for our son.’”
Miltenberg is an advocate and resource for some of the thousands of male students who are accused of sexual misconduct on college campuses every year. The process at most schools involves a hearing or hearings where both the accused and the accuser are allowed to have an advocate attend to make sure their best interests are served. Miltenberg has acted as an adviser for over 60 students in college hearings, and he’s currently representing male students in a number of civil lawsuits filed against universities where they feel they were mistreated.
Born on Long Island, Miltenberg is 50 years old, a married father of three children (two girls and a boy), clean-cut and short-statured, a self-described “mama’s boy” with a wry sense of humor. He works out of a Manhattan law office kitty-corner from Penn Station, where creaky elevator doors open directly onto a waiting room painted deep red that displays a framed image of a 1930 Alfa Romeo. His office is decorated with photos of his family and a poster signed by the 1980 U.S. Olympic hockey team. It's here where I meet with him in mid-July to talk about his budding reputation as “the rape lawyer.”
That's not an appellation Miltenberg has actively sought, nor one he's entirely comfortable with; he has no interest in the men’s-rights movement or defending the bad behavior of misogynistic frat boys. He’s not even a criminal-defense attorney. Until recently, he spent most of his time on business disputes, contested wills, and commercial and real-estate litigation, and was perhaps best known for a case back in 1998, when he successfully defended sidewalk artists' rights to sell their work outside the Met when the city wanted to force them to pay for vendor permits. Miltenberg was applauded then as the champion of the little guy, and that's still how he sees himself.
It was Kimberly Lau, a lawyer who used to work as an associate at Miltenberg’s firm but is now a partner at the firm Warshaw Burnstein, who first brought the issue of campus sexual assault to his attention in early 2013. She had been approached by a Vassar student who had beenexpelled for sexual assault. The student had found Lau because he was searching for an Asian-American attorney. She convinced Miltenberg to sue Vassar for gender discrimination and suggested the ironic legal reasoning of using Title IX to argue their position.
Though most people think of Title IX as the sports parity law — the one that forces colleges to support women's sports as much as men's — it requires colleges to protect students from all gender-based discrimination, including sexual assault. Taking this a step further, Miltenberg and Lau argue that the men who are accused on campuses are having their rights violated on a gender basis under Title IX because they are not afforded appropriate due process. To date, no lawyer has convinced a judge that Title IX's discrimination clauses apply to male accusers in sexual assault cases, but Miltenberg seems confident he will eventually set that precedent.
The Vassar case was ultimately decided in favor of the school, but Miltenberg and Lau were now invested in this new nebulous legal area. As soon as word got out that they were working on behalf of the accused, cases began to pile up, which the two collaborated on until Lau left the company. (She now works on similar cases at her new firm.) In late August Miltenberg filed a case on behalf of a student accused of nonconsensual touching who is suing Colgate University for expelling him a month before graduation.
Miltenberg’s most high-profile client to date is Paul Nungesser, the German native who was accused of sexual assault by his Columbia classmate Emma Sulkowicz in the spring of 2012. Though the university found Nungesser not responsible, Sulkowicz’s resultant activism is partly what’s kept the campus rape debate in the news for so long. Sulkowicz became known as "Mattress Girl" across the web when she carried the heavy twin extra-long mattress she says she was raped on to all of her classes as part of a senior year art project. (She also attended last year's State of the Union address, as a guest of New York senator Kirsten Gillibrand.) Miltenberg is now representing Nungesser in a civil suit filed against Columbia that alleges the university acted as “a silent bystander and then turned into an active supporter of a fellow student’s harassment campaign by institutionalizing it and heralding it." Columbia has moved to have the case thrown out.
Having spent much time with Nungesser, Miltenberg is adamant that he believes his client’s account of what happened that night — and that’s important, because Miltenberg will not advocate for students he believes are guilty. He describes using a combination of the facts of the case and an "inner visceral response" to determine whether to take on a client, and Nungesser passed his test. (Miltenberg says he's turned down about a dozen cases because he did not "trust or believe the accused.")
Of the publicity surrounding the case, “Emma has created a celebrity for herself and I think she’s somehow managed to morph it into an artistic endeavor,” Miltenberg tells me. “Whatever her goals or motivations were, she should not have built them on his back.” (Sulkowicz didn't respond to our request for comment.)
Miltenberg isn’t particularly interested in the gender implications of sexual-misconduct cases. His interest in campus rape stems solely from his abiding faith in the historical importance of due process: He simply believes the accused in these situations aren’t getting a fair shake, and that if he’s in a position to help them, he should.
“I’m very drawn to situations where people are bearing up under the weight of public sentiment or the system,” Miltenberg told me. As he sees it: “Before, the playing field was tilted against women, and now it's tilted against men.”
He's not alone in believing the current climate, in which the debate over how colleges handle rape accusations has become highly politicized, and the way processes are handled disadvantages men.
“In 2012–2014, higher education overreacted to the Office of Civil Rights’ influence and sort of counterbalanced this historical unreceptivity to victims by being overly receptive and started dismissing a number of male students who really should never have been dismissed," says Brett Sokolow, the president of the National Center for Higher Education Risk Management, which trains colleges in best practices for handling sexual misconduct cases in accordance with Title IX. "The pendulum swung too far in the other direction." (Sokolow himself has come under fire for his work: last July, BuzzFeed said he was building “a profitable empire on slippery ethical ground.”)
Miltenberg wants to get rid of the pendulum altogether. He believes that colleges shouldn't be investigating sexual assaults at all, and that all cases should be turned over to the police, a change that — if enacted — would end his tenure as the “rape lawyer.” “I just don’t think colleges are equipped to handle these things," he says.
But victims’ advocates believe that survivors should have a variety of routes they can choose to pursue, including both reporting the assault to the police and pursuing on-campus processes. Monika Johnson Hostler, president of the National Alliance to End Sexual Violence, says: "Every case and every survivor are different. Some survivors may simply want to have their schedules changed so they no longer have to run into the accused; others may want to pursue criminal charges."
As for Miltenberg's argument that student defendants can't get due process on campus, Hostler argues that holding college hearings shouldn’t be held to the same standards as legal proceedings — and that attorneys like Miltenberg are part of the problem. She thinks that sexual misconduct hearings should be treated like any other allegation of impropriety on campus.
Miltenberg is adamant that the campus system needs to be abolished altogether."If something really bad happened that you need to report, the police should be to whom you report it," he says. "And if it's not bad enough to report to the police, then maybe it shouldn't be reported.”
Victims’ advocates like Hostler may recoil at that statement, but that’s just kind of Miltenberg’s style: He’s charming, but not rooted (or interested) in the feminist debates that typically dominate these discussions.
“The guy doesn't exactly sit around reciting Judith Butler,” one person who knows Miltenberg tells me. “But if he did that, he wouldn't be defending these people.”
A couple weeks after we meet, I call Miltenberg for a follow-up interview. He’s had a busy morning. In the last few hours, he says, he’s had three phone calls from parents in three different countries whose sons, they believe, have been wrongfully accused of assault at a U.S. university.
“It’s hard when you listen to parents because they’re talking about their children,” Miltenberg concedes. “I don’t look at the parents’ understandable indignation, but I really try to look at it objectively and clinically as to the process.”
While false accusations occur infrequently (an FBI report [PDF] pegs them at around 8 percent), they still do damage. What Clark found when his college cleared him of any wrongdoing is that innocence does not alter public opinion: Once you’re accused of sexual assault, it sticks with you like a scar. It trails you in your Google results and in the hushed warnings girls relay to each other. It’s permanent, and it can ruin you.
“He was paralyzed with depression during this time,” Clark's mother tells me. “And I think what he finds now is that people will always stare at him a little too long.” As for his mother, she was so moved by James's plight and Miltenberg's counsel that she spent the summer working part-time in his law office, helping with cases like her son's.
Miltenberg seeks to be a beacon for men like Clark. “To a large measure, at 18 or 19 or 20 years old, young men and young women are not equipped emotionally or intellectually to deal with this,” he says. “And I mean it from both ends. From the end of feeling assaulted, abused, or taken advantage of, and on the other end having what they may believe are unfair allegations made.”
Whether or not you agree with his approach, Miltenberg’s business is booming. He currently has six Title IX lawsuits filed in courts across the U.S. and is preparing to file five more. Still, one former client told me that while he’s certainly worked with many accused students, he’s not exactly considered the Mercedes Benz of “rape lawyers.” That moniker would go to Charles Wayne, the D.C.-based criminal attorney at the global law firm DLA Piper. Wayne currently has a civil lawsuit filed against Boston College that Sokolow, the higher-education risk-management adviser, says is the closest of all the campus-assault-related litigation to setting a Title IX male-gender-discrimination precedent.
“If you want to win, and you have a lot of money, you go to Charlie Wayne,” Miltenberg’s former client says.
I ask Miltenberg straight up: Why, given the choice, would you choose to advocate for the accused instead of the accusers?
“I don’t look at it as men versus women and I don’t look at it as rapists or arsonists or sexual assaulters,” Miltenberg argues. “I look at it as someone who is accused who’s in a process that’s unfair and without a guide or advocate.”
This may sound like a legal nicety, but Miltenberg is not crouched in the trenches of the p.c. wars in the way other experts are; his opinions appear to be oblivious to hashtag activism or the social-media hive mind. He doesn't use Twitter or Facebook. When I asked what his opinions are on the gender debate surrounding campus sexual assault, he claimed he wasn’t even sure he knew what the debate was. And though he’s mentioned frequently on the men’s-rights website A Voice for Male Students, which the Southern Poverty Law Center called out for its misogynistic bent, he insists he’s not a "men’s-rights crusader" and doesn't agree with their agenda.
Really, what makes Miltenberg so interesting is how deeply divorced he is from the partisan political climate that governs the way most of us think about campus sexual assault. He is a central legal figure of one of this decade’s most infamous culture wars, and, if you tell him that, he has no clue what the hell you’re talking about. His dissociation from any sort of larger discussion about the issues is so complete that I often found myself wondering if he was joking around. He couldn’t possibly be serious when, for example, he whipped out a history book, pointed to a photo of a Nazi soldier and seemed to liken it to the tyrannical rule of universities against students accused of rape. "[In this photo] you got this strong intimidating looking German soldier standing in front of a Jewish business," he said, by way of illustrating the power dynamics inherent to "state-sponsored" tyranny.
Did you just, um, compare the way sexual assaults are handled at universities to Nazism? I venture.
No, he clarifies, “but to me it’s a metaphor for why we need to — as a society — stand firm to make sure processes are fair.”
Everyone agrees the system for handling sexual assaults needs an overhaul, but just how exactly to accomplish that is already proving controversial. In early August, fraternity groups pushed a pair of bills into the House that, if passed, could keep schools from expelling the accused. If universities don't work to effectively correct their systems — and soon — that pendulum that swung so far toward protecting victims could swing right back.
*Names have been changed.