BOULDER, Colo. — The phone calls come in waves, sometimes one or two a week, sometimes eight or 10. Women, mostly college students, call from across the country to a law firm in this city on the eastern slope of the Rocky Mountains.
Their stories vary but usually share similarities: a rape, an indifferent police officer, a fumbled response by the school.
They’re either calling for John Clune, the attorney who helped rape accusers take on star athletes Kobe Bryant, Johan Santana and Jameis Winston, or they’re calling for his coworker, Baine Kerr, whose landmark lawsuits on behalf of women who said athletes raped them at the University of Colorado and Arizona State ended with massive settlements.
Clune and Kerr are widely recognized as the best attorneys in the country for victims of sex crimes at colleges, with an expertise in high-profile cases involving athletes. They currently represent women suing Florida State, the University of Oregon, and the University of Tulsa — all asserting the schools are financially liable for sex crimes committed by athletes — and are also suing Winston, the Tampa Bay Buccaneers quarterback and former Florida State star, on behalf of his accuser.
Over the past 15 years, these two lawyers — and a troubling number of athletes — have played starring roles in cases that have triggered a seismic change in how American colleges handle reports of sex crimes.
Clune and Kerr’s cases usually involve unproven allegations, drawing complaints by defense attorneys of a rush to judgment based on one side of a story. America’s legal community, meanwhile, is sharply divided on the wisdom of this new world order Clune and Kerr have helped impose, requiring colleges to investigate and adjudicate complex, emotionally charged cases that could bedevil even the most experienced detective.
To victim’s advocates, however, Clune and Kerr — and their clients — are heroes in a modern day civil rights movement, waging legal battles that have made America’s college campuses safer, exposed a corrosive side of college sports and highlighted a critical failing of the criminal justice system.
“They have a clear commitment to making the world better for women,” said Nancy Hogshead-Makar, a former Olympic swimmer and civil rights lawyer. “They really see this as an area in desperate need of cultural change, and they’re going to do this through the legal system.”
The office for Hutchinson Black and Cook — the law firm where Kerr, 69, has worked for 36 years and where Clune, 45, has worked for two — is in Boulder’s tony West End, amid bars, restaurants and shops. The Flatirons rise in the distance, casting long shadows over a city known as countercultural and aggressively fit.
In the early 2000s, two high-profile rape investigations in Colorado erupted into national media firestorms, forever changing the lives of two lawyers whose careers, before then, had little in common.
In December 2001, Kerr was winding down a long career in medical malpractice that had made him lots of money without delivering much fulfillment. Then Lisa Simpson walked into his Boulder office.
Simpson, a sophomore at the University of Colorado, had told police she had been gang-raped by high school football players in town for a recruiting weekend. Several Colorado players watched and goaded them on, she said.
Kerr and his colleagues filed a then-novel civil rights lawsuit against the university under Title IX, a federal law that bars sex discrimination in education. Before 2000, Title IX usually made news in connection with athletics, as the law requires schools to spend proportionally the same amount on men’s and women’s sports. In Simpson v. University of Colorado , Kerr argued the school had fostered a culture of sexual harassment around football recruiting that put women at risk, citing a 1997 complaint in which another woman told police she had been raped at a party for recruits.
The case dragged on for nearly five years, causing a stream of negative press for the university. In December 2007, the school settled with Simpson for $2.5 million. In January 2009, Kerr landed another huge victory in a similar case. Arizona State agreed to pay $850,000 to a woman identified as “J.K.” who said she had been raped by a football player who had a documented history of terrorizing women on campus. The two cases established Kerr and his firm as the best in the country in an evolving area of the law.
Meanwhile, Clune was building a reputation as one of the best lawyers in the country for victims of sex crimes. In 2003, Clune had just started a private practice in a tiny mountain town when a 19-year-old woman in nearby Edwards accused the Los Angeles Lakers’ Bryant of rape. Clune, who had worked in the local prosecutor’s office there, agreed to represent the woman. He helped her avoid the frenzy of media attention, fought for her privacy in court and sued Bryant.
Clune declined to comment about the Bryant case. (The settlement likely bars him from discussing it.) But the case marked the start of his career as a lawyer who specialized in representing victims of sex crimes.
Clune felt spurred to action, he said, after witnessing “disastrous” experiences for his clients — from doubtful detectives to timid prosecutors who wouldn’t press charges to defense attorneys revealing embarrassing details of the accusers’ personal lives in trial.
In 2007, Clune moved to Boulder and started a firm that solely worked with victims of violent crimes. As he worked with more and more rape victims, he grew familiar with fast-developing Title IX law.
“Any time you see a class of people who are being mistreated and discriminated against . . . once that light’s kind of turned on for you, it’s hard to look away from it,” Clune said. “When you start to see the injustices, it’s hard to not continue down that path.”
By the late 2000s, most national nonprofits that help sex crime victims knew the names Baine Kerr and John Clune. In 2013, they decided to work together. Most of the calls that flow into their office are referrals from nonprofits.
“It’s a pretty small universe,” said Meg Garvin, executive director of the National Crime Victim Law Institute. There are a few other lawyers Garvin sends cases to, but it’s a short list. She expects that list to grow.
In early January, on consecutive days, Clune and Kerr filed lawsuits against Florida State and the University of Oregon. The cases illustrate how quickly Title IX case law has changed and the massive impact these cases are having on American colleges.
In the Florida State case, they assert the school waited months to investigate a report its star quarterback raped a woman. In 1999, if a rape was reported at a college, it was entirely possible the school would leave the investigation up to law enforcement. In 2015, if school officials don’t immediately pursue their own investigation, they risk a lawsuit.
A series of legal dominoes links these two points in time, and Kerr was involved in one of the biggest.
In Davis v. Monroe County — a 1999 case about a fifth-grade girl tormented by a boy at school — the Supreme Court concluded schools could be held responsible for student-on-student sexual harassment if school officials ignored it through “deliberate indifference.”
Then came Simpson v. Colorado, which actually was dismissed in 2005 but reinstated in 2007 by a federal appeals court with a ruling that broadly defined “deliberate indifference.” After the ruling, one of Colorado’s lawyers expressed concern at “a new legal standard that takes all American universities into uncharted waters.”
American higher education exists today in those uncharted waters. In 2011, the Department of Education told schools they had to investigate reports of sex crimes, and when determining guilt, they should use the lower “more likely than not” standard of civil courts, not the “beyond a reasonable doubt” used in criminal courts.
As a result of Kerr and Clune’s work, universities across the country now hold quasi-judicial hearings on rape cases. These hearings have sparked a new wave of Title IX lawsuits, filed by men expelled or suspended after schools found them responsible for crimes they say they didn’t commit.
Last October, in an op-ed in the Boston Globe, 28 Harvard Law School professors pilloried the school’s new sexual assault investigative policies, modeled on federal recommendations.
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” the members wrote.
Such complaints of a lack of due process and a lower legal standard on campus than in a courtroom are misguided, Clune and Kerr say.
“You’re not putting someone in prison. You’re eliminating a safety risk,” Kerr said. “Protecting women on campus, that’s the objective. You can’t afford as much due process as a criminal defendant gets. And you shouldn’t.”
Clune’s Title IX case against the University of Oregon illustrates another new issue colleges face: whether to admit students found guilty of sex crimes in campus hearings at other schools.
In the Oregon case, Clune alleges the school admitted a men’s basketball player found responsible for a sex assault at another school, who then instigated a gang-rape at Oregon.
Oregon should have taken measures to ensure the safety of other students, Clune said, such as counseling the basketball player or issuing a notice alerting the campus of a new student with a history of sexual assault.
“I don’t think there’s anything fundamentally wrong with giving students second chances, but you don’t do it at the expense of other students already on campus,” Clune said.
Rape and sexual assault are inherently difficult to prove in criminal court, Clune and Kerr acknowledge. The only witnesses are usually the accuser and the accused. Alcohol and drugs are often involved. There’s usually little physical evidence, and even when there is, its value can be undermined by claims that the sex was consensual.
In this murky world, Clune and Kerr have firmly chosen a side: accusers. Rape and sexual assault are chronically under-reported crimes, studies have found, particularly on college campuses, where 20 percent of women say they’ve been assaulted.
Various studies have pegged the incidence of false accusations of rape between 2 and 10 percent. Clune and Kerr believe these numbers. When discussing their cases — most of which never produce criminal indictments or convictions — they rarely use the word “allegedly.”
“Even if we had the most well-trained investigators and the most well-trained prosecutors, prosecutors are always going to have cases where they say to themselves, ‘I think this happened; I don’t think I can prove it,’ ” Clune said.
One of Clune’s high-profile cases did go awry when he had concerns about his client’s truthfulness. In 2010, Clune sued baseball pitcher Johan Santana on behalf of a Florida woman who said Santana raped her.
Clune is now suing that woman to try to get his legal fees paid. In 2012, he left the case because to continue “would have been legally impossible and would have caused [Clune] to violate their ethical obligations,” court documents state. The woman gave testimony “materially inconsistent with prior statements made to counsel and on the record.”
In response to questions about the case, Clune said: “That is an unfortunate situation, but out of respect for the privacy of my former client, I am not going to comment.”
While there is little research that shows college athletes are more likely to commit sex crimes than other students, the recurring role of athletes in Clune and Kerr’s cases is undeniable.
The cases against Florida State and Winston have drawn the fury of Seminoles fans, who have left late-night voice mails and e-mails threatening to “skin them alive” or worse.
Clune and Kerr’s most outspoken critic is David Cornwell, Winston’s lawyer. Cornwell declined to comment, but he has spoken about Clune and Kerr elsewhere.
“They’re not lawyers; they’re investors,” he said on a radio interview. Cornwell has called the case against Winston a “shakedown.”
Some of Clune and Kerr’s cases can end in seven-figure settlements, but those are rare. Even other legal adversaries reject the idea that their primary motivations are financial.
“They’re not just in it for the quick settlement,” said Patrick O’Rourke, university counsel for Colorado. Their clients “are going to get two lawyers who are going to dig in and fight for them. I respect their ability . . . even though I don’t always think that they’re right.”
Over the next year, some of Clune and Kerr’s cases could result in a rarity for them: trials.
Florida State President John Thrasher has said: “Florida State looks forward to addressing these meritless allegations in court.”
Cornwell, Winston’s lawyer, has said: “Mr. Winston welcomes the opportunity to clear his name with the truth.”
Winston, meanwhile, is preparing for his rookie season in the NFL.
In response to criticism of their decision to draft Winston, Buccaneers executives touted their extensive probe of his past. They hired private investigators, they told reporters, and talked to more than 75 people. After stories about that investigation appeared, the Buccaneers’ lawyer got an e-mail from Clune.
He was building his case against their new star quarterback and asked the team to preserve the record of their investigation in case he needed it as evidence.