Dust Settles In CU Rape Case

The University of Colorado has paid $2.85 million to settle a lawsuit brought by two women gang raped at a December 2001 football program recruiting party, in the wake of a September appellate court finding that “the assaults were a natural, perhaps inevitable consequence of an officially sanctioned but unsupervised effort to show recruits a ‘good time.'” In connection with the settlement with Lisa Simpson, CU President Hank Brown commented:

This settlement closes the chapter on a painful period of the University’s history. . . . Ms Simpson’s efforts have contributed to making the University a safer place for all its students. The university and I profoundly regret that that Ms. Simpson underwent a very traumatic experience while a member of our University community. Her experience has assisted the university and other institutions in addressing very difficult problems of sexual harassment and assault. With this lawsuit behind her, I hope that she will be successful in working toward her life goals, including continued advocacy for victims of sexual assault.

Brown added with respect to the other plaintiff with whom the university settled that:

[Her] efforts have contributed to making the University a safer place for all its students. Her experience has assisted the university and other institutions in addressing very difficult problems of sexual harassment and assault. With this lawsuit behind her, I hope that she will be successful in working toward her life goals.

The University also made public the other plaintiff’s statement:

I am relieved that a settlement has been reached with the University of Colorado. My personal decision to settle in no way diminishes my convictions in this matter. I have chosen not to participate in an ongoing exhaustive litigation process and will instead move forward on my healing process privately. I am proud to have played a small role in creating a safer learning environment for all students.

The University’s press office went on to say:

As part of the settlement, the University has agreed to appoint an independent Title IX advisor to assist it in identifying any further reforms that will prevent sexual harassment and misconduct. The University has also committed to adding another part-time counselor in its Office of Victim’s Assistance, and Ms. Simpson wished to thank the Office of Victim’s Assistance for its assistance to her.

The Denver Post notes that the University of Colorado spent about $3 million in litigation costs defending the case, in addition to the settlement, and that all but $1 million of the University’s expenses will be funded by the University’s insurance company. 

The settlement contains the customary statement that it “does not constitute an admission of liability or fault” and a promise from the parties that they will not call the payment “compensation for any wrongful conduct by the University.”  The reality, of course, is that no institution pays a settlement of this magnitude in a case like this one without the damning evidence suggesting that the University engaged in wrongful conduct that the 10th Circuit Court of Appeals laid out in its opinion, reinstating the case after it was dismissed by the trial court prior to trial.

The University’s statement, while not strictly speaking an apology, is exceptionally conciliatory and contrite.  Few statements from institutions that have settled civil rights lawsuits acknowledge that the plaintiff has been harmed or that the organization had problems related to the plaintiff’s harm that needed to be solved.

None of the individuals who carried out the alleged gang rape that was the basis of the suit, or the university officials who put in place the university policies questioned by the 10th Circuit Court of Appeals, were held responsible for their actions with either criminal sanctions or civil liability.  The District Attorney in Boulder found the case against the alleged rapists too hard to prove beyond a reasonable doubt, and so it refused to do so.  Four CU football players pleaded guilty to providing alcohol to minors at the party.  The incident was also one factor of many in the departure of a number of university administrators and sports program officials from the school. 

Indeed, former head football coach Gary Barnett managed to secure a settlement of his wrongful discharge claims larger than the one paid to the two women combined, despite the fact that the 10th Circuit spent four pages of its opinion in the case describing in detail evidence of Barnett’s extensive culpability in creating a climate hostile to women at the University of Colorado.  The 10th Circuit concluded that analysis by noting that:

In sum, the evidence before the district court would support findings that by the time of the assaults on Plaintiffs, (1) Coach Barnett, whose rank in the CU hierarchy was comparable to that of a police chief in a municipal government, had general knowledge of the serious risk of sexual harassment and assault during college-football recruiting efforts; (2) Barnett knew that such assaults had indeed occurred during CU recruiting visits; (3) Barnett nevertheless maintained an unsupervised player-host program to show high-school recruits “a good time”; and (4) Barnett knew, both because of incidents reported to him and because of his own unsupportive attitude, that there had been no change in atmosphere since 1997 (when the prior assault occurred) that would make such misconduct less likely in 2001.

Barnett has strenuously complained that a settlement was reached.

The settlement, by its terms, does not release anyone other than the University and its insurers from liability, but the statute of limitations to bring or renew a suit against anyone else has lapsed. 

In March of 2005, the women had just had their case dismissed, and studies of appellate decisions in the federal appellate courts have shown that “defendants fare better than plaintiffs on appeal.”  But, in law, it isn’t over until it is over, and the long struggle of these two women to seek redress eventually prevailed.  A third plaintiff discontinued her prosecution of a related case three years ago.

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Andrew Oh-Willeke

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