Female waited a year to complain, male not given copy of complaint, entire process only 5 weeks, no record of hearing
The more cases of campus sexual assault adjudications we cover, the more we see patterns.
There frequently is an ongoing consensual sexual relationship in which only some of the interactions were claimed to be non-consensual; a delay in reporting the alleged assault; a process in which the accused is left uncertain as to the charges against him; an inability to be represented by counsel or anyone who could give substantive assistance; a university investigation under pressure to “believe” the accuser; the inability to call a key witnesses, the issue of whether there was sufficient affirmative consent (there being no claim that the female said “No”), and of course, the use of alcohol in varying degrees.
In a recent case at Oberlin, we examined the allegations in a context of a 100% conviction rate for students (presumably all or almost all males) who went to formal adjudication. The issue there was whether one sex act as part of a series of sex acts had sufficient affirmative consent, where the female student stated she was “not sober” just prior to performing the sex act.
The case discussed below involves many of these elements.
A male student expelled from Johnson & Wales University in Providence, RI, has commenced suit in federal court in Massachusetts, where he lives, claiming he was unlawfully held responsible and expelled after an unfair, prejudged internal judicial process that violated not only ordinary norms of fairness, but also the university’s own guidelines.
The facts alleged and issued involved are all too familiar for these type of cases, according to the detailed factual allegations:
- The male and female students had at least six sexual encounters, only two of which were at issue.
- The female did not complain for one year.
- The complaint was instigated by the female’s boyfriend, but the boyfriend could not be cross-examined because he served as the female student’s hearing advisor.
- The accused male student was not given a copy of the complaint, he only had it read to him not long before the hearing.
- The investigator who gathered the facts expressed support for the female student from the start.
- The entire process from complaint to adjudication took only five weeks.
- There was a short time to appeal, during which time the male student retained counsel, but the university would not provide the attorney with a copy of the complaint.
- There was not record of the adjudication. making internal appeal and court challenge difficult
The Complaint is embedded at the bottom of this post. I have excerpted the allegations. (All emphasis in the excerpts has been added by me.)
Of course, we don’t know at this stage which of the facts alleged will be disputed. Plaintiff’s counsel did not respond to a request for comment; defense counsel declined to comment beyond what the university has said in its court papers seeking to move the case from federal court in Massachusetts to federal court Rhode Island.
Overview: Ongoing Sexual Relationship
1. This lawsuit arises from the miscarriage of justice caused by the actions taken by Johnson & Wales University (“JWU” or “the University”) against the Plaintiff (“John”) in October and November of 2017. In the Fall of his junior year he was accused having committed sexual assault, when as a sophomore, he had engaged numerous times in consensual sex with a female student who suddenly now claimed to have withdrawn her consent during the course of the sexual conduct. This disciplinary action was taken against a male student with an unblemished academic and disciplinary record in a time of near viral hysteria regarding campus
2. In just five weeks from the date the complaint was formally filed against him, the plaintiff was found guilty of sexual assault, expelled from the University, removed from the campus and branded a sex offender, with his entire future in ruins. The defendant university’s actions are the direct result of a foundationally flawed process of investigation and discipline during which the plaintiff was denied the most basic elements of fairness promised to him by JWU in its Student Handbook.
3. In filing this lawsuit, the plaintiff seeks to right these grave wrongs, finish his education, restore his reputation and find some semblance of emotional and psychological wellbeing.
The accused never given a copy of the Complaint against him.
11. The proceeding by JWU against John Doe which gives rise to this lawsuit formally began in September of 2017 when Mary Smith3 filed a formal Complaint (“Complaint Report”) with JWU accompanied by her boyfriend BK.
12. JWU never did and would not give a copy of the formal 18+ page Complaint Report to John Doe and only read it to him in a single pre-disciplinary Hearing meeting with Betsy Gray (the JWU “Director of Student Conduct & Program”). Indeed, JWU refused to give a copy of the Complaint Report to the undersigned counsel when his office requested it when he began representing John Doe in his internal appeal of his expulsion. Undersigned counsel was forced to have it read to him telephonically and told to take notes to the best of his ability. The undersigned facts and quotes come from that report. It is this report that guided the Hearing. Upon information and belief, the testimony of Mary Smith matched her statements in the Complaint Report. Shockingly, JWU failed to make any record whatsoever of the Hearing which occurred against John Doe.4
4 JWU, in essence, expelled John Doe leaving him no reasonable ability to appeal internally. How can an accused
appeal an expulsion arising from a Hearing when no record of what occurred at the Hearing exists? He can’t. JWU’s failure to provide a written copy of the Complaint and make a record of the Hearing is at best bad faith and at worst
an intentional cover-up.
Multiple Sexual Encounters – Female Student initially uncertain if it was assault
Asserted sexual assault incident 1 as stated by the complainant Mary Smith (sex session 5)
14. Mary Smith on or about September 13, 2017 reported to the JWU security office that she had been sexually assaulted. She stated that this assault occurred “one night in October” of 2016 by John Doe. She stated that she had slept with John Doe earlier that night in his dorm room, was sleeping with him in bed, and woke up to go to the bathroom in the middle of the night. While in the bathroom she said that John Doe followed her into the bathroom pulled down her underwear and had sex with her up against the sink, leaving her with bruising on her hip. She said that this sexual encounter was rougher than she was used to having with him because John Doe was “normally gentle with her” when they had sex.
15. After they finished having sex in the bathroom, Mary Smith and John Doe went back into John Doe’s bed and fell asleep together again. She woke up later that morning and left the room. As stated in the Complaint Report, one of John Doe’s roommates was in the room when this alleged sexual assault occurred and heard nothing. Additionally, according to the Complaint Report, another roommate was walking in when Mary Smith was leaving the building and she seemed to be in good spirits. 5
5 Very disturbingly, JWU never had these two roommates as witnesses at the Hearing and John Doe was never able to question them, yet their exculpatory statements are in the Complaint Report.
16. Mary Smith never took pictures of any bruising, never contacted any official regarding the incident and never went to any medical facility.
Asserted sexual assault incident 2 as stated by the complainant Mary Smith (sex session 6)
17. Approximately a week after this alleged first sexual assault by John Doe, Mary Smith voluntarily came over to John Doe’s dorm room again to have sex with him. She stated in the Complaint Report that she began having “consensual sex” with John Doe but stated that “it was normal at first and not rough and at some point during the consensual sex she became less lubricated and it started to hurt.” She “voiced this to John Doe and gave him the chance to stop and change positions to see if it continued to hurt. She stated that he moved her onto her hands and knees and continued having sex.” It did not hurt anymore in that position but “began to hurt again” and he only stopped when he ejaculated.
18. It is undisputed that the events relayed in Paragraphs 15 and 16 are what the entire assertion of “sexual assault” against John Doe comprises as stated by Mary Smith. Nothing more.
19. When she made the formal complaint approximately a year later, as stated in the Complaint Report, Mary Smith said that she was not sure it was sexual assault that occurred. She said that “she was confused because he had never gotten rough with her like that before and that she was not sure if what occurred was considered sexual assault. She stated that ‘this type of sex was new to her.”6
6 John Doe has denied from the beginning that any “sexual assault” occurred and that sex session 6 was not distinct from session 1 through 4. He further has always claimed that the bathroom sex (session 5) never even happened. Indeed, Mary Smith’s complaint and testimony does not even describe sexual assault.
20. Soon after this asserted second incident of sexual assault occurred, Mary Smith was on social media platform Instagram liking John Doe’s postings.
Hearing on Short Notice with No Explanation of Process, No Assistance
31. On October, 3, 2017, John Doe appeared at a “Pre-Hearing Conference”. This Conference meeting is the only time that John Doe was actually told what the specific charges in the Complaint Report were against him. But John Doe was not allowed to read the Complaint Report, see a copy of it, or have any copy of it whatsoever.
32. At the Pre-Hearing Conference he was told that he must attend a Hearing on the charges on October 20, 2017. He was never told how the Hearing was conducted. He was never told how and if he could question any witnesses, bring any witnesses, bring and/or submit any evidence, whether there would be opening statements or closing statements. In essence, he was left in the dark about the entire procedure. The one thing he was told was that he could have an “Advisor” who could not participate in any way during the Hearing but could sit next to him. He also was never told the names of the three adjudicating Panelists. He was specifically told that he could not have any legal counsel.
45. JWU’s own CRP did not and does not lay out how John Doe was to present his defense at the Hearing. He was a young shy student confronted with serious claims he denied and was (by JWU policy) alone, scared and in the dark. As a matter of fact, he was actually placed in a nearly bare room with a telephone speaker on the table and an “advisor” next to him who, according to the CRP, could “not participate in any manner.”
46. John Doe was never provided any written or oral guidance as to how he could bring evidence to the Hearing (i.e. Instagram postings, texts, ect.) or if he could even bring any at all. He was never provided any written or oral guidance as to how he could bring a witness in his defense and have such witness questioned by him. Indeed, he was never told orally or in writing whether he could question the complainant’s witnesses or the complainant herself.
47. He was never told whether he could/should prepare an opening statement or closing remarks and, even if he could, how long he could speak for. Shockingly, he was never even given a copy of the 18+ page incident report/ complaint brought against him (not even a redacted copy). He was never even reasonably allowed to take notes while the 18+ page statement was read to him. Quite frankly, this failure alone is inherently discriminatory to an accused who understands and learns better from reading.
48. The above failures of internal procedural due process reasonably shock the conscience because even the most rudimentary contractual relationship between parties requires a fair playing field. JWU in the case of John Doe did not follow this basic premise and the promise of good faith of the CRP.
Only Three (3) Days Allowed for Internal Appeal
35. On October 23, 2017, John Doe received a letter stating that the three adjudicating Panelists has ruled that he had committed sexual assault and he was expelled. A copy of the Dismissal Letter is attached as Exhibit D.
36. John Doe was given only three days to appeal and, according to the CRP, only if “Relevant, new information has come to light since the decision was made” and/or “The Conduct Review Process, as outlined, was not followed.”
37. John Doe, with a limited extension, filed his appeal with counsel. It was denied within a few hours by JWU’s Senior Vice President of Administration with no apparent review.
38. Within a period of approximately four weeks, John Doe went from a happy, healthy, thriving student to a sexual offender who was expelled from college, all without any semblance of equitable due process or procedure.
Biased, Pre-Judged Investigative Process
50. From the beginning of the investigation JWU assumed that the Mary Smith was telling the truth and was presumed to be a victim. John Doe was assumed to be at fault. Sgt. Robinson of JWU campus security, the initial primary investigating officer, does not even deny this fact. He wrote in the 18+ page Complaint Report that he e-mailed Mary Smtih on June 2, 2017, the following as his initial communication: “I tried reaching out to you earlier but I was unable to leave a voice message. I emailed you instead. I did not want to delay this matter any longer so I am supplying you with some resources as it has been brought to my attention that you were a victim of sexual assault this past academic year (2016-2017). I want you to know that we are here to support you…”
Biased Decision Making
54. Importantly, the Dismissal Letter itself reveals the bias in the decision making. The Dismissal Letter states that, “The panelists noted that throughout the hearing, the respondent was not able to articulate specific ways in which he gained consent. Rather, he only noted that the complainant never stated that she was uncomfortable after the alleged incidents occurred. The complainant provided very specific information regarding the words and behaviors she used to convey that she did not give consent or withdrew consent.” This reasoning for ruling against John Doe shows that he never had a chance. JWU ruled against him because he could not articulate a negative while the complainant simply reiterated her story. She says it happened and John Doe could not state how he gained consent. How does an accused show evidence of consent when he says it never happened? It cannot be done. She never had to provide evidence that the events actually occurred. The burden was all on him and that burden shift is in violation of the CRP.
Bizarre – Accuser’s Boyfriend Threatens Male Student, and Is Removed from Campus
63. Additionally, BK threatened the life of John Doe on October 21, 2017 (the day after John Doe’s JWU hearing). Since that time, a restraining Order has been issued against BK and, upon information and belief, BK was removed from all JWU campuses.
64. BK’s actions are extremely relevant because it is BK who has been with Mary Smith since she came to campus security in September to file a complaint against John Doe and BK was her “Advisor” at the Hearing.
65. As the Complaint Report says, Mary Smith stated without equivocation in June of 2017 that she was fine and had no complaint against John Doe. But, starting in September when she moved in with BK, the complainant suddenly determined that she had been assaulted and came to campus security. When asked how the alleged assaults had affected her, the complainant stated that it “had affected her relationship with her boyfriend” (BK). A new Hearing, allowing the questioning of BK, will reveal if BK has actually unduly influenced the testimony of the Mary Smith. BK has revealed a high level of violent uncontrolled behavior and his effect upon the proceedings against John Doe is of core relevance.
COUNT I – BREACH OF CONTRACT
COUNT II – BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
COUNT III – ESTOPPEL AND RELIANCE
COUNT IV – 20 U.S.C. § 1681 (Title IX)
COUNT V – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
COUNT VI – NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
COUNT VII – INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT
Update 3-12-2018 — On March 2, 2018, the Court granted the motion to transfer venue, and the case will not proceed in the District of Rhode Island.
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