College rape cases quietly dropped

Fulton DA cites drug, alcohol questions in decision to drop prosecution of Tech, Morehouse students.

Fulton County’s district attorney has quietly dropped two high-profile campus rape cases that had lingered more than two years, one at Morehouse College and the other at Georgia Tech.

The Atlanta Journal-Constitution learned of Paul Howard’s decision not to prosecute through attorneys last week. The long delay prompted complaints that both the accused and the victims were left in limbo. The three men accused in the Morehouse case were suspended, Tech expelled the man accused in that case, and Howard said the woman in the Morehouse incident is still suffering.

In an interview in his office Wednesday, Howard acknowledged the cases had moved slowly but said they involved complicated and sensitive issues of consent.

“These cases with drugs and alcohol are very difficult for us to reach conclusions,” he said. In each instance, Howard said, the victim was conscious, communicating with those around her, but afterward said she could not recall what happened.

Prosecutions in campus rape cases are rare, though the number of reports has been rising.

Heavy drinking or drugs that cloud memories, and the lack of witnesses or conclusive evidence, often hamper the cases.

A December 2014 AJC investigation found that campus police at nine of Georgia’s largest universities logged 152 allegations of rapes and sodomies since 2010. Not one resulted in criminal prosecution.

Howard’s office was weighing these two cases at the time of that report.

The Georgia Tech student was accused of raping an Agnes Scott College student in January 2014 at his fraternity house, a house made infamous after an e-mail surfaced from one member instructing others how to lure “rapebait” by plying female guests with alcohol.

In the second case, three Morehouse basketball players were accused of sexually assaulting a Spelman College student on March 8, 2013.

“I do not consider them victims”

The Morehouse case in particular seemed to trouble Howard, who is an alumnus of the school.

He described the victim as “devastated” and said her life had taken a downward spiral since the incident.

Chukwudi Ndudikwa, Tevin Mgbo and Malcolm Frank were accused of drugging, kidnapping and sexually assaulting an 18-year-old Spelman freshman during a night of partying in a Morehouse dormitory.

They were arrested in April that year on various assault and rape charges and released on bond. The athletes remained suspended from Morehouse while Howard’s office investigated.

Howard said it was clear the three had sex with the woman. What was at issue was whether she agreed.

“Based upon the circumstances, they might not have been able to tell that she was not giving them consent,” Howard said.

A report from the GBI did not find DNA evidence. Witnesses described the woman as conscious, and a videotape showed one of the accused carrying her on his back.

“I would not characterize what they did as innocent,” Howard said. “I don’t consider them as victims. I consider them as lucky, lucky the case did not move forward.”

None of the three men would agree to speak to the AJC. Their lawyers said their lives had been upended by false allegations.

“My client was suspended from Morehouse, a school he always wanted to attend,” and had to sit out of school a semester before enrolling at a community college, said Keith Adams, attorney for Malcolm Frank.

Frank has gone on to enroll at Kennesaw State University and is studying computer engineering.

“If you are someone who is arrested and put in jail and whose face is plastered in the media as a rapist, and the DA who can do something about it fails to do so, I think you are a victim,” said Adams. “For the DA to take three years to make a determination that there is not any evidence to support charges against a citizen is a gross dereliction of prosecutorial duty.”

Howard said Wednesday he held the case while he continued to communicate with the woman and her mother and only filed the dismissal paperwork after they had concluded it was the best course of action.

“Finally this is not hanging over his head”

At Georgia Tech, Howard was looking into claims by an Agnes Scott student that she was raped by Tech student Caleb Ackerman.

The case drew attention, in part, because Ackerman’s fraternity, Phi Kappa Tau, had drawn national scrutiny after the “rapebait” email surfaced.

The victim told police that after drinking alcohol fraternity members provided she’d lost consciousness on the couch in Ackerman’s bedroom, and later came to and began sobbing, saying “something bad happened.”

The next day after she asked Ackerman about the previous night, saying she had no memory of part of it, he told her by text that they’d had sex and she had seduced him. She said she had no recollection of what had transpired.

After she came forward with her allegations, another Agnes Scott student said Ackerman had raped her in 2012 after a semi-formal event at the fraternity house when she had drunk a lot. After vomiting, she also laid down on Ackerman’s couch. He then “did engage in sexual intercourse with her as she lay helpless,” according to the police report.

The second woman told Georgia Tech police she did not want to pursue charges but was coming forward to confirm the other woman’s account of Ackerman’s behavior.

Both women sued the fraternity, saying it promoted a rampant culture of rape and misogyny.

The case was settled about a year ago for an undisclosed amount of money. Douglas Fierberg, who represented them in that civil case, said Howard’s delay wasn’t warranted.

“We were able to bring a (civil) case forward, prove what needed to be proven and reach a resolution long before the state decided to move or not,” Fierberg said.

Fierberg would not disclose the terms of the settlement with the fraternity, which he said was reached about one year ago.

“No prosecution makes no sense,” said Fierberg.

But Howard said that after the civil suit was resolved the student who had first notified police said she “wanted to move on” with her life.

Ackerman, through his attorney, former DeKalb County District Attorney J. Tom Morgan, has denied the allegations.

Morgan said his client is trying to put the whole incident behind him. “Caleb is now in med school getting ready to start his rounds and finally this is not hanging over his head,” Morgan said.

Tech, in particular, has been under fire for its handling of sexual assault allegations, with President Bud Peterson summoned to appear before state legislative hearing to explain how it disciplines the accused.