Brown University, Providence, RI.

Judge Blasts Brown University’s Kangaroo Court for Sexual Assault

By Jillian Kay Melchior | 3:44 pm, October 4, 2016

Brown University botched a sexual-assault hearing, treating an accused male student unfairly, a U.S. District Court ruled last week.

The court considered only the question of whether Brown breached its contract by failing to follow its own procedures as it considered allegations of sexual assault. But the 84-page ruling also highlights systemic bias against male students accused of sexual misconduct.

In 2014, a male student (“John Doe”) heavily petted a female student (“Ann Roe”), who then gave him oral sex. Before and after, the students exchanged very sexually explicit messages. It wasn’t until a year later, after their relationship soured, that Roe went to administration, saying she’d been sexually assaulted that night.

The university chose an investigator to look into these allegations, and her report and testimony were among central points of conflict in the district court case.

The investigator was supposed to conduct interviews, collect evidence, and present a report on the facts. But she also essentially provided advice to the Title IX panel about how they should decide the case — even though such a recommendation is prohibited.

Moreover, the investigation raised significant questions about Roe’s allegations. One witness told the investigator Roe had described the sexual encounter to her shortly after it occurred and “made the whole thing sound ‘sexy and cool,’” according to district court records.

The investigator also discovered that Roe had withheld some of the text messages she exchanged with her alleged attacker, deleting other messages altogether. In some of the omitted text messages, which the investigator later obtained from John Doe, the female student comes across as enthusiastically consenting. At worst, she sends mixed messages.

Doe claimed the accusations against him were fabricated, offering the investigator a witness who claimed to have heard Roe and a friend conspiring to get him in trouble.

But the investigator decided not to try to get text messages between Roe and her friend. Even so, she told the Title IX panel that there was “insufficient evidence” to support Doe’s conspiracy claim. That was “particularly problematic,” the district court decided, “given that she had refused to ask for evidence that might have proven it so and been exculpatory to Doe.”

The Title IX panel also seemed slanted against Doe from the beginning, the court’s ruling suggests.

As an incoming freshman, Doe went through sexual-consent training. But after that — and after the sexual encounter in question — the university broadened its definition of consent even further, saying that a “yes” given under manipulation isn’t actually consent.

The district court pointed out some of the problems with such a broad definition of consent. It references Merriam Webster, which defines manipulation as “to control or play upon by artful, unfair or insidious means especially to one’s own advantage.”

Under that extremely definition, the court notes, a boyfriend who “artfully” bought flowers and dinner in hope of having sex later could potentially be found guilty of sexual misconduct.

Nonetheless, while considering Doe’s case, the Title IX panel used that expanded, new definition of consent. And the panelists’ determination that Doe had, indeed, manipulated Roe was a central consideration in their decision to rule against him.

Furthermore, the court records illustrate how ill-equipped the Title IX panel was to make such a major decision. Instead of law enforcement, the panel is made up of faculty, staff, and several students. With as few as five hours of training, they make determinations that can ruin someone’s life and reputation.

During Doe’s case, one of the panelists explicitly said that it was “‘beyond [her] degree of expertise to assess [Roe’s] post-encounter conduct . . . because of the possibility that it was trauma.’ Similarly, she stated that she was ‘not equipped to judge [Roe’s] behavior,’” the court records note. “Yet this was precisely her job as a panel member: to interpret the evidence and make factual determinations about it.”

In the end, Brown’s Title IX panel ruled against Doe, admitting that it was a tough call. They suspended him, barring him from campus until after Roe’s graduation.
But the procedural problems with Brown’s adjudication of Doe’s case were so substantial that they amounted to a contractual violation, the district court ruled.

The district court also noted that there had been “an organized campaign to influence the outcome” of its decision, noting that it had received a “deluge of emails” that, “while passionate, were woefully ignorant about the issues before the Court.”

The judge ordered Brown to vacate its findings, abandon the punishment it had meted out, and expunge the male student’s record. However, the court notes that there’s nothing preventing Brown from holding a new hearing to consider the allegations against Doe.

But without meaningful changes to this flawed adjudication system, it’s unlikely the outcome will be any different.

Jillian Kay Melchior writes for Heat Street and is a fellow for the Steamboat Institute and the Independent Women’s Forum.