United States District Court, D. Rhode Island
FINDINGS OF FACT AND CONCLUSIONS OF LAW
William E. Smith Chief Judge
This
case arises out of a disciplinary proceeding in which Brown
University (“Brown” or “University”)
found John Doe (“John” or “Doe”)
responsible for sexual misconduct against fellow student Ann
Roe (“Ann”).[1] The parties agreed to waive the jury
demand and hold an expedited consolidated bench trial on both
the merits of Plaintiff's case and his request for a
preliminary injunction, which was conducted on July 19-22,
2016. The parties submitted Proposed Findings of Fact and
Conclusions of Law (ECF Nos. 50 (“Doe's Post-Trial
Brief”) and 55 (“Brown's Post-Trial
Brief”)), and the Court heard closing arguments on
August 16, 2016. On August 23, 2016, the Court found that Doe
“is likely to succeed (at least partially) on the
merits of his breach of contract claim” and issued a
preliminary injunction, allowing John to return to Brown for
the fall semester under the same conditions previously
imposed. (Preliminary Injunction Order 2, ECF No. 57.)
It is
important to make it unequivocally clear at the outset that
the Court's only role in this case is to determine
whether Doe's disciplinary “process [was] carried
out in line with [the Plaintiff] student's reasonable
expectations” based on the policies in place at the
time of the incident. Havlik v. Johnson & Wales
Univ., 509 F.3d 25, 34 (1st Cir. 2007). It is not the
Court's role to determine the facts of what happened
between John and Ann; to decide whether the Court would have,
in the panel's position, found John responsible for
sexual misconduct; to evaluate whether the Court would have
made the same judgment calls on evidence and other issues as
Brown did; or to determine whether the procedure John
received was optimal. This Court is not a super-appeals court
for sexual misconduct cases, nor is it an advisor to Brown on
how it should handle these messy and unfortunate situations.
Moreover,
the Court is an independent body and must make a decision
based solely on the evidence before it. It cannot be swayed
by emotion or public opinion. After issuing the preliminary
injunction this Court was deluged with emails resulting from
an organized campaign to influence the outcome. These
tactics, while perhaps appropriate and effective in
influencing legislators or officials in the executive branch,
have no place in the judicial process. This is basic civics,
and one would think students and others affiliated with a
prestigious Ivy League institution would know this. Moreover,
having read a few of the emails, it is abundantly clear that
the writers, while passionate, were woefully ignorant about
the issues before the Court. Hopefully, they will read this
decision and be educated.
Although
a very close call, for the reasons explained below, the Court
finds that certain procedures Brown employed in conducting
Doe's hearing fell outside of a student's reasonable
expectations based on the Code of Student Conduct at Brown
University 2014-15 (the “2014-15 Code”), and that
these procedural errors likely affected the panel's
decision in Doe's case.[2] Accordingly, Doe is entitled a
new hearing that remedies these infirmities. Pursuant to Rule
52(a) of the Federal Rules of Civil Procedure, the Court
makes the following findings of fact and conclusions of law.
To the extent that any finding of fact reflects a legal
conclusion, it should be to that extent deemed a conclusion
of law, and vice versa.
I.
Findings of Fact
A.
Doe's Enrollment and Orientation at Brown
Doe
applied for admission to Brown in the spring of 2013. (Trial
Tr., vol. II, 186:15-16, ECF No. 52.) He was accepted, chose
to enroll, and his family prepaid four years of tuition,
totaling $177, 600. (Id. at 187:2-20.)
Prior
to arriving on campus, Doe completed Brown's 2013 New
Student Tutorial (“Tutorial”), which dealt with
sexual encounters and relationships and was required for all
incoming students. (Id. at 209:18-23.) While
completing the Tutorial, Doe watched a video entitled
“Brown Students Ask For Consent.” (Id.
at 212:13-15, 213:18-20; Ex. 46.) In the video, Brown
students are interviewed and answer a series of questions:
“What is consent?”; “What is not
consent?”; “Do you have consent?”; and
“How do you ask for consent?” (Brown Students Ask
for Consent Video, Ex. 46.) The students' responses to
these questions included the following:
Consent is asking and hearing a yes. . . . Consent is active,
not passive. It means being fully engaged and not just going
along. Consent is giving permission without feeling
pressured. . . . I do not obtain consent by pressuring
someone, by threatening someone, by coercing someone, or by
forcing someone. . . . Not now, means no. No does not mean
keep trying. It means stop. . . . I'm not sure I'm
ready, means no. . . . Silence is not consent. People
sometimes freeze and cannot speak. The absence of yes, means
no.
(Id.) Doe testified at trial that he understood that
the video stated values and principles of the Brown
community. (Trial Tr., vol. II, 213:21-24, ECF No. 52.)
Doe
also completed a series of questions with the Tutorial.
Question 95, section 4.7 of the Tutorial instructed Doe to
provide “True” or “False” responses
to a series of statements. Doe responded “True”
to the following “statement[] about sexual
consent”: “Consent may be invalid if there is
coercion, intimidation, or threat, or if advantage is gained
because a person is mentally or physically unable to
communicate unwillingness.” (Tutorial 23, Ex. 40; Trial
Tr., vol. II, 211:5-13, ECF No. 52.) Doe testified that, by
completing the Tutorial, he understood that under Brown's
community principles, coercion may invalidate consent. (Trial
Tr., vol. II, 211:14-18, ECF No. 52.) However, he understood
coercion to require “force or threat of force.”
(Id. at 214:10-11.)
Doe
attended freshmen orientation at Brown in the fall of 2013.
(Id. at 187:21-23.) As part of the orientation, Doe
was provided with a copy of the Code of Student Conduct at
Brown University 2013-2014 (the “2013-14 Code”),
which he reviewed. (Id. at 187:24-188:5.) Doe also
attended a 90-minute session about consent, during which he
again watched the “Brown Students Ask for
Consent” video. (Id. at 213:25-214:3,
214:19-22.) The presentation included a PowerPoint, the last
slide of which was likewise titled “Brown students ask
for consent” and depicted statements and questions
relating to consent (e.g., “I'd like to
talk about this first, ” “Are you okay with
this?, ” “If you change your mind, we'll
stop.”). (Id. at 217:5-6; Brown Consent
Presentation 6, Ex. 43.) This slide was also made into a
flyer and posted around campus. (Trial Tr., vol. II, 218:3-4,
225:20-22, ECF No. 52.) The bottom of the slide has a
sentence in small print that states: “This is meant to
help well-meaning people take care of themselves and each
other in sexual situations. People who don't have good
intentions may manipulate the language of consent to hurt
someone.” (Trial Tr., vol. II, 225:5-9, ECF No. 52;
Brown Consent Presentation 6, Ex. 43.) Other than this quote,
Brown did not present any evidence that
“manipulation” was addressed at the orientation.
In
addition to the 90-minute presentation, Doe participated in a
smaller group interactive session about sexual relationships
and consent, which was hosted by residential peer leaders and
lasted about 40 minutes. (Trial Tr., vol. II, 219:21-220:20,
ECF No. 52.) Prior to November 10, 2014, Doe attended another
training session at Brown addressing consent in sexual
relationships. (Id. at 220:25-221:8.) The training
included a discussion of the impact of coercion upon consent.
(Id. at 221:9-12.) However, there was no discussion
of manipulation at any of these trainings. (Id. at
221:22-24.)
B. The
2014-15 Code of Student Conduct
Doe
completed his freshman year and re-enrolled in the fall of
2014, at which time Brown emailed him the 2014-15 Code.
(Id. at 188:18-189:4.) The 2014-15 Code prohibits
sexual misconduct as follows:
III.
Sexual Misconduct
a. Sexual Misconduct that involves non-consensual physical
contact of a sexual nature.
b. Sexual Misconduct that includes one or more of the
following: penetration, violent physical force, or injury.
Comment: Offense III encompasses a broad range of behaviors,
including acts using force, threat, intimidation, or
advantage gained by the offended student's mental or
physical incapacity or impairment of which the offending
student was aware or should have been aware. Harassment,
without physical contact, will not be deemed sexual
misconduct under these provisions. Violations of Offense IIIb
will result in more severe sanctions from the University,
separation being the standard. Note: Some forms of sexual
misconduct may also constitute sexual assault under Rhode
Island criminal laws and are subject to prosecution by State
law enforcement authorities - which can take place
independent of charges under the University's Student
Code of Conduct.
(2014-15 Code 4, Ex. 2.)[3] The Code also notes that its comments
“are offered as a guide to understanding the
University's policies, and are not to be confused with
the policies themselves. As such these comments are not
binding upon the University or its designated
representatives.” (Id. at 3 n.1.) Doe read the
2014-15 Code in its entirety. (Trial Tr., vol. II, 199:18-20,
ECF No. 52.)
Doe
claims that his interpretation of the “broad range of
behaviors” identified in the Comment to Section III
only includes conduct enumerated in the Comment, namely
force, threat, intimidation, or incapacitation (Id.
at 201:17-24.) He admitted at trial that, under his
interpretation, offering a poor student $1, 000 or a
recovering drug addict drugs in exchange for sex would not be
considered sexual misconduct. (Id. at 229:20-232:4.)
The
2014-15 Code also gives students a number of rights in
disciplinary proceedings, including “[t]o be assumed
not responsible of any alleged violations unless she/he is so
found through the appropriate student conduct hearing”
and “[t]o be given every opportunity to
articulate relevant concerns and issues, express salient
opinions, and offer evidence before the hearing body or
officer.” (2014-15 Code 7, Ex. 2 (emphasis added).)
Regarding appeals, the 2014-15 Code states:
Appeals will normally be considered only when: (1) there is
relevant new evidence that was not reasonably available to be
presented to the original hearing authority and that in the
judgment of the Appeal Officer the introduction of the
information may have changed the finding by the original
hearing authority; or (2) when a substantial procedural error
by the University or hearing body/officer is demonstrated and
in the reasonable judgment of the Appeal Officer such error
is sufficient enough that it may have affected the decision
of the original hearing authority.
(Id. at 10-11.)
C. The
Sexual Assault Task Force and the New 2015-16 Title IX Policy
and Complaint Process
During
the fall 2014 semester, Brown convened a Task Force on Sexual
Assault (“Task Force”), which included members of
Brown's administration, faculty, and student body, to
review Brown's practices, policies, and procedures
addressing issues of sexual assault and sexual misconduct.
(Trial Tr., vol. I, 144:25-145:12, ECF No. 51; Trial Tr.,
vol. IV, 125:10-21, ECF No. 53.) Based on the Task
Force's recommendations, in the fall of 2015, Brown
adopted a new Sexual and Gender-Based Harassment, Sexual
Violence, Relationship and Interpersonal Violence and
Stalking Policy (“Title IX Policy”) (Ex. 4).
(Trial Tr., vol. I, 147:24-148:13, ECF No. 51.)
The
Title IX Policy defines “consent” as follows:
Consent is an affirmative and willing agreement to engage in
specific forms of sexual contact with another person. Consent
requires an outward demonstration, through mutually
understandable words or actions, indicating that an
individual has freely chosen to engage in sexual contact.
Consent cannot be obtained through: (1) manipulation; or (2)
the use of coercion or force; or (3) by taking advantage of
the incapacitation of another individual.
Silence, passivity, or the absence of resistance does not
imply consent. It is important not to make assumptions; if
confusion or ambiguity arises during a sexual interaction, it
is essential that each participant stops and clarifies the
other's willingness to continue.
Consent can be withdrawn at any time. When consent is
withdrawn, sexual activity must cease. Prior consent does not
imply current or future consent; even in the context of an
ongoing relationship, consent must be sought and freely given
for each instance of sexual contact.
An essential element of consent is that it be freely given.
Freely given consent might not be present, or may not even be
possible, in relationships of a sexual or intimate nature
between individuals where one individual has power,
supervision or authority over another. More information,
policy and guidance regarding such relationships can be found
below.
In evaluating whether consent was given, consideration will
be given to the totality of the facts and circumstances,
including but not limited to the extent to which a
complainant affirmatively uses words or actions indicating a
willingness to engage in sexual contact, free from
manipulation, intimidation, fear, or coercion; whether a
reasonable person in the respondent's position would have
understood such person's words or acts as an expression
of consent; and whether there are any circumstances, known or
reasonably apparent to the respondent, demonstrating
incapacitation or fear.
(Title IX Policy 6-7, Ex. 4.) Coercion is defined as
“verbal and/or physical conduct, including
manipulation, intimidation, unwanted contact, and express or
implied threats of physical, emotional, or other harm, that
would reasonably place an individual in fear of immediate or
future harm and that is employed to compel someone to engage
in sexual contact.” (Id. at 7.) Unlike the
Title IX Policy, the 2014-15 Code did not give a specific
definition of consent. (Trial Tr., vol. II, 79:6-17, ECF No.
52.) When adjudicating student disciplinary cases involving
sexual misconduct charges under the 2014-15 Code, the Student
Conduct Boards would look to available sources to define
“consent” for purposes of their deliberations,
including the dictionary and Brown's sexual education
website. (Id. at 75:11-76:11.)
In the
fall of 2015, Brown also adopted a new Complaint Process
Pursuant to the Title IX Policy (“Complaint
Process”) (Ex. 3), which delineates the procedures for
the receipt, investigation, and informal and formal
resolution of complaints alleging student sexual misconduct.
(Trial Tr., vol. II, 4:5-24, ECF No. 52.) Unlike the previous
model where evidence was presented directly to a hearing
panel, the new Complaint Process uses an “investigator
model” for handling sexual misconduct cases. (Trial
Tr., vol. I, 38:1-12, ECF No. 51.) Under this model, there is
a single investigator, whose role is to gather
“information through interviews of the complainant,
respondent, and witnesses and synthesize the information in a
report.” (Complaint Process 3, Ex. 3.) “The
investigator has the discretion to determine the relevance of
any witness or other evidence and may exclude information in
preparing the investigation report if the information is
irrelevant, immaterial, or more prejudicial than
informative.” (Id.) The Complaint Process
dictates that “[t]he investigator's report will
include credibility assessments based on their experience
with the complainant, respondent, and witnesses, as well as
the evidence provided.” (Id. at 4.) However,
it also states that “[t]he investigator will not make a
finding or recommend a finding of responsibility.”
(Id.) The investigator model has become increasingly
popular among colleges and universities, particularly
“peer institutions of Brown.” (Trial Tr., vol.
II, 57:15-20, ECF No. 52.)
Under
the Complaint Process, Brown has established a Title IX
Council to adjudicate charges and review appeals. (Complaint
Process 5-6, Ex. 3.) At the hearing to adjudicate charges,
the Chair of the Title IX Council presides as a non-voting
panelist and three members of the Title IX Council preside as
voting panelists. (Id. at 5.) The Title IX Council
Chair “is responsible for the administration of the
hearing process, including procedural matters and decisions
leading up to the hearing, determinations about information
that will be considered or not, appropriate and inappropriate
lines of questioning, and the overall decorum and conduct of
the proceedings.” (Id.) The panel's role
is “to review the information presented in the
investigation report and to determine if an individual or
individuals violated the University policy (and, if yes, to
determine an appropriate sanction).” (Id.)
During
the hearing, the panel “convene[s] with the
investigator (although the Chair has the discretion to
determine if a meeting with the investigator is not
necessary)” and raises any questions regarding the
investigator's report. (Id.) The complainant and
respondent are not allowed in the hearing room during this
phase of the proceeding. (Id.) The panel may also
request to hear from one or more witnesses, however, the
Chair has complete discretion to approve or deny those
requests. (Id.) The complainant and respondent may
appear separately before the panel to make an oral statement
regarding the facts and be questioned by the panel.
(Id.) Throughout the hearing process, “[t]he
presumption is that the investigator has identified and
interviewed all relevant witnesses and supplied the
information necessary for the hearing panel to render its
decision and determine sanctions.” (Id.) The
panel convenes to deliberate and render a decision, by
majority vote, regarding whether or not the respondent has
violated University policy by a preponderance of the
evidence. (Id.) This process marks a significant
departure from Brown's former adjudication system, in
which the panel would review all of the evidence and hear the
witnesses live, and then make findings. (Trial Tr., vol. IV,
139:21-140:14, ECF No. 53.)
Under
the Complaint Process, Brown seeks to complete the
investigation and the panel hearing within 60 days in
accordance with guidance from the Department of
Education's Office for Civil Rights (“OCR”).
(Id. at 6-7; Trial Tr., vol. I, 164:5-17, ECF No.
51.) Both the complainant and respondent have the right to
appeal a Title IX Council panel's decision “based
on the limited grounds of substantial procedural error that
materially affected the outcome and/or material, new evidence
not reasonably available at the time of the hearing.”
(Complaint Process 6, Ex. 3.) Each student may file a written
response to the other student's appeal. (Id.)
Appeals
are reviewed by an appellate panel comprised of the Title IX
Council Chair as a nonvoting member and three voting members.
(Id.) If the appellate panel grants an appeal based
upon a substantial procedural error, the matter will be heard
by a new hearing panel. (Id.) If the appellate panel
grants an appeal based upon the discovery of new evidence,
the matter will be remanded back to the same panel that
initially heard the case for reconsideration in light of the
new evidence. (Id.) “Following
reconsideration, the finding of the hearing panel or the
sanction imposed by the decision-maker will be final and not
subject to further appeal.” (Id.)
D.
Selection and Training of Title IX Council Members
Gretchen
Schultz, a tenured professor of French Studies, serves as the
Title IX Council Chair. (Trial Tr., vol. II, 29:5-12, ECF No.
52; Trial Tr., vol. IV. 30:11-13, ECF No. 53.) Schultz
previously served on the Task Force and presided on Student
Conduct Board panels that adjudicated sexual misconduct
charges under the Code. (Trial Tr., vol. IV, 32:19-22,
45:2-5.) Brown's Title IX Council is comprised of
faculty, staff, undergraduates, graduate students, and a
medical student. (Trial Tr., vol. I, 153:11-16, ECF No. 51.)
Throughout the 2015-16 academic year, Brown's Title IX
Officer, Amanda Walsh, oversaw the selection of the Title IX
Council. (Id. at 153:10-156:4.) She attempted to
find members who would approach the cases fairly and offer
balanced viewpoints. (Id.)
All of
the Title IX Council members were required to complete at
least five hours of training before becoming eligible to
serve on a hearing panel. (Id. at 158:24-159:19.)
Walsh presented a two hour training session, which gave an
overview of Title IX and Brown's policies and procedures.
(Id. at 162:14-163:9; Walsh Title IX Presentation,
Ex. 45.) Walsh testified that she informed panelists that
while they may believe a complainant or feel sympathy for him
or her, it does not necessarily mean that they should find
the respondent to be “responsible.” (Trial Tr.,
vol. I, 169:17-170:10, ECF No. 51.) Walsh emphasized that a
finding of “responsible” must be supported by a
preponderance of the evidence. (Id.) During
training, panelists were also instructed that they are
“supposed to consider all of the evidence.”
(Trial Tr., vol. III, 45:9-12, ECF No. 54.)
Alana
Sacks, a Sexual Harassment & Assault Resources &
Education (“SHARE”) advocate, presented a
training session to Title IX Council members regarding the
impacts of trauma on sexual assault victims. (Trial Tr., vol.
I, 160:1-16, ECF No. 51.) Brown states that it provided this
training to comply with guidance documents issued by OCR,
which state that decision-makers in Title IX processes should
understand the potential impacts of trauma. (Id. at
160:7-16.) During her presentation, Sacks stated that some
reactions of sexual assault survivors might be
counterintuitive, for example not being able to recount a
consistent set of facts, or “communicating with someone
who has assaulted them or having any kind of interaction with
someone who has assaulted them.” (Tr. of Deposition of
Alana Sacks, 72:23-74:11, Ex. 48.)
At
another training session, Mark Peters, Brown's Men's
Health Coordinator, addressed the social norms and
expectations of males. Walsh testified that she chose this
session to offer “another point of view or additional
contextual information.” (Trial Tr., vol. I, 160:17-23,
ECF No. 51.) The Title IX Council members also participated
in a mock hearing addressing a fictional disciplinary case.
(Id. at 161:14-21.)
E.
Ann's Complaint and Doe's Response
During
late September or early October 2015, Ann met with Walsh to
discuss an encounter that Ann had with Doe approximately one
year prior, in November 2014. (Trial Tr., vol. II, 9:9-19,
ECF No, 52.) Ann asked about options available to her.
(Id. at 9:20-23.) Walsh reviewed Brown's
remedial and safety resources, such as confidential SHARE
advocates, the chaplain's office, and counseling and
psychological services. (Id. at 9:24-10:5.) Walsh
also indicated that Ann may file a report with Brown's
Title IX Office, as well as with the Providence Police
Department or Brown's Department of Public Safety.
(Id. at 10:6-9.)
On
Friday, October 30, 2015, Ann filed a complaint in the Title
IX Office alleging that Doe had sexually assaulted her on
November 10, 2014. (Ann's Complaint, Ex. 5; Trial Tr.,
vol. I, 32:22, ECF No. 51.) Specifically, Ann alleged the
following:
On November 10, [2014] I got into campus very late due to
travel delays. Around 2am, I met [John] at the campus center
to watch a movie in a public place. When I arrived at the
campus center he brought me back to a secluded room and had
his laptop up for the movie. Once he started the movie, he
physically grabbed my face to kiss me. I immediately turned
my head away to ·indicate my lack of consent and
verbally told him that I don't want to kiss him. This
also was meant to confirm that his sexual advances were
unwanted. Rather than respecting my wishes, [John] kissed me
on the cheek and then asked, “may I?” I was upset
and confused, so asked, “may I what?” [John] then
forced his fingers into my vagina to sexually assault me. I
froze and did not respond. In my head, all I could think is
that I wanted this to be over with, so when he kept kissing
me I didn't resist. During the assault he said, “I
know you want to fuck me right now.” Fearing he would
do more to me, I told him I really couldn't as an attempt
to avoid him raping me. He replied, “well at least give
me a blowjob then.” I repeatedly stated that I did not
want to and tried to avoid angering him by stating “I
really shouldn't” and “I wasn't sure,
” but I never wanted to and wanted to leave as soon as
possible. [John] kept replying, “I know you want
to” and I knew I wasn't going to be able to leave
unless it happened. I felt I had no choice to avoid being
raped, so submitted to this coercive badgering out of fear
and gave him oral sex. At one point, I stopped the oral sex
and he said “put my dick back in your mouth.”
Around 3 a.m., I finally could leave and told him on the way
out, that he was the kind of person that makes people do
things they don't want to do. He again said, “I
know you wanted to” as I was leaving. I then went home
in shock and upset about what happened and just wanted to
sleep.
(Ann's Complaint 2, Ex. 5.) Ann's Complaint also
described and attached numerous text messages that the two
students had exchanged leading up to the encounter, many of
which are very sexually explicit. (Id. at 1-2;
see Text Messages 1-133, Ex. 19.) Ann acknowledged
that she had “engaged in some banter” and
“discussed a fantasy, ” but stated that she had
made clear that she did not want to have a sexual
relationship with John. (Ann's Complaint 1-2, Ex. 5.)
Ann's Complaint did not include any text messages from
after the incident. (Trial Tr., vol. II, 91:3-6, ECF No. 52.)
Walsh
promptly contacted Doe to inform him of Ann's Complaint.
(Trial Tr., vol. II, 10:10-14, ECF No. 52.) During the
evening of Sunday, November 1, 2015, Walsh sent an email to
Doe requesting that he meet with her the next day.
(Id.) On Monday, November 2, 2015, Walsh met with
Doe to discuss Ann's Complaint. (Id. at
10:22-11:12.) Walsh provided Doe with a copy of Ann's
Complaint and the Complaint Process; informed Doe that if he
needed academic assistance, he should contact Dean Suarez in
Brown's Office of Student Life; informed Doe of his right
to an advisor; and alerted Doe that he could seek
confidential support at Counseling and Psychological Services
(CAPS). (Id. at 11:2-22; 11/3/15 Letter from Walsh
to Doe, Ex. 6.)
Under
the Complaint Process, a respondent has five business days to
submit a statement in response to a complaint. (Complaint
Process 3, Ex. 3.) Walsh agreed to Doe's request for an
extension due to his course work and a mock trial tournament
during the response period. (11/3/15 Letter from Walsh to
Doe, Ex. 6.) Walsh granted a 24 hour extension, allowing Doe
to file his statement by 5 p.m. on Tuesday, November 10,
2015. (Id.; Trial Tr., vol. II, 12:1-12, ECF No.
52.)
On
November 10, 2015, Doe filed his statement responding to
Ann's Complaint. (Doe's Response to Complaint, Ex. 8;
Trial Tr., vol. I, 43:15-22, ECF No. 51.) Doe presented a
different interpretation of the text messages, noting that,
based on Ann's participation in explicit sexual banter
and discussion of fantasies, “she did appear open to a
sexual relationship with me.” (Doe's Response to
Complaint 2, Ex. 8.) He also had a very different version of
the encounter on November 10, 2014, stating that “[Ann]
was an active participant, got up two or three times to turn
off the lights, and then cuddled with me. Had she been afraid
at any point, she could have yelled for help as there were
other people in the building, or simply left. She did
neither. In fact, she seemed to enjoy herself.”
(Id. at 4.) According to Doe, he and Ann were
“squeez[ing] each other tightly and vigorously
kiss[ing]” and “Ann pushed me on my back and got
on top of me with her legs straddling me.”
(Id.) Doe continued, “I reached my hand into
Ann's pants after she told me that I could. She
subsequently lifted her butt up and pulled her sweatpants
down as I helped her. . . . After I finished fingering [Ann]
she told me that it was her turn. She unzipped my pants and
together we pulled them down to my ankles. She then proceeded
to give me oral sex.” (Id. at 4-5.) He also
noted that “[t]he lights came back on” several
times through the encounter, “and each time, Ann got
up, turned them off, and came back over to me.”
(Id. at 4.) Doe further explained that Ann continued
to pursue him after November 10, 2014, and that she offered
no reasonable explanation for her delay in filing her
Complaint. (Id. at 4-5.) He attached “a
complete, unedited log of [their text messages], ”
noting that the log “begins a day earlier than what Ann
provided [with her Complaint] and includes subsequent texts
that she deleted from what she provided.” (Id.
at 1.) These text messages included the following exchange
several days after the incident:
Respondent: Remember to pretend like you didn't give me a
mind blowing blowjob [winking emoji]
Complainant: Only if you remember to pretend you're not
imagining fucking the shit out of me the whole time . . .
Respondent: Only if I pretend like you don't want me to
fuck you until you orgasm the whole time Complainant: Good.
So no one will suspect how much you want to cum inside me in
Cali [smiling emoji]
Respondent: And no one will suspect how much you want me to
make you my little slut for a night Complainant: Perfect,
sounds like we've got a plan [winking emoji] [I]m super
pumped for the drunk scrimmage but more excited to see you
finally! Haha
(Perkins Report 23, Ex. 18 (quoting Text Messages 134-35, Ex.
19).)
As
permitted under the Complaint Process, Ann and Doe retained
attorneys to act as their advisors. (Trial Tr., vol. II,
5:16-17, ECF No. 52.) Ann selected Attorney Laura Dunn of
SurvJustice, who was assisted by Attorney Myka Held of that
organization, and Doe selected Attorney J. Richard Ratcliffe.
(Id. at 5:19-25.) Shortly after Doe received
Ann's complaint, Brown informed Attorney Ratcliffe on
November 4, 2015 that the University would apply the
Complaint Process to investigate and adjudicate the matter.
(11/4/15 Email from Michael Grabo to Ratcliffe, Ex. 7.)
Because the November 10, 2014 incident between Doe and Ann
occurred during the 2014-15 academic year, however, the
substantive charges were based on the 2014-15 Code.
(Id.)
F. The
Investigation
Consistent
with the Complaint Process, Brown hired an external
investigator, Attorney Djuna Perkins, to investigate
Ann's allegations and Doe's defenses. (Perkins
Engagement Letter, Ex. 9.) Perkins' investigation spanned
over four months from her engagement by Brown on November 4,
2015 to the completion of her report on March 12, 2016.
(See id.; 3/12/16 Email from Perkins to Doe
attaching Final Report, Ex. 17.) Perkins spent 80-100 hours
conducting the investigation and drafting her report. (Trial
Tr., vol. II, 144:21-25, ECF No. 52.)
Perkins
interviewed Ann on November 13, 2015, January 8, 2016, and
February 17, 2016. (Perkins Final Report 1, Ex. 18.) She
interviewed John on November 19, 2015 and February 2, 2016.
(Id.) Between December 3, 2015 and February 12,
2016, Perkins interviewed 11 witnesses identified by Ann and
John. (Id. at 1- 2.) She attempted to reach three
other witnesses who did not respond or declined to be
interviewed. (Id. at 2.)
One of
the witnesses whom Perkins interviewed had seen Ann shortly
after the incident and recounted the following:
Witness 1 said she told the Complainant about her day, and
then the Complainant said, “Oh my God, I have to tell
you something. Do you guys remember that guy [the Respondent]
I've been telling you about?” When Witness 1 and
the Complainant's roommate said they did, Witness 1 said
the Complainant said, “I just hooked up with him. It
was like really weird because we were just in Faunce and
hooked up.” The Complainant told them she and the
Respondent had gone to some out-of-the-way room in Faunce and
turned the lights off. Witness 1 said the Complainant made
the whole thing sound “sexy and cool.” Witness 1
said [Ann's roommate] asked if they had sex and the
Complainant said, “No, but it was really hot. I mean,
you know it wasn't recripocal because he only fingered me
- he didn't eat me out - but we might hook up again, I
don't know.” Witness 1 said the Complainant made it
sound as if she wished they had done more. The Complainant
also said she had given the Respondent a
“blowjob.” Witness 1 could not recall if the
Complainant provided any other details of their encounter.
Witness 1 said when the Complainant told the story, she was
her typical “happy, bubbly” self. Witness 1 did
not recall the Complainant saying she did not want any of the
sexual activity to occur, and never mentioned that the
Respondent had pressured her into hooking up or doing any of
the things they did.
(Perkins Final Report 16-17, Ex. 18.)
Perkins
reviewed and included in her report the entire set of text
messages between John and Ann. (Id. at 2-3 n.3.) She
also included an excerpt of a set of text messages involving
John and another female student (Witness 8), for the limited
purpose of corroborating the fact that Ann had put in a
“good word” for John with Witness 8; and an
excerpt of text messages between John and Ann's friend,
Witness 9, to be considered “only to the extent they
may shed light on the Respondent's state of mind on the
night of November 10, [2015], and to the extent they may shed
light on the Respondent's claim that the Complainant
conspired with Witness 9 to fabricate the allegations.”
(Id. at 2-3.) Perkins reviewed, but elected not to
present to the panel, other text messages between John and
Witness 9, and between John and another female student
(Witness 10), due to a concern that their prejudicial impact
would outweigh their probative value. (Id. at 3.)
Perkins further declined to consider communications that John
sent to mock trial members and its governing board during the
summer of 2015, again out of concern about their potential
prejudicial impact to him. (Id.) Finally, Perkins
declined to consider a Facebook posting provided by Witness 9
because it was not directly relevant to the allegations in
Ann's complaint against John. (Id.)
As
noted above, John claimed that Ann and Witness 9 had a
“conspiracy” to fabricate the claim against him.
He based this allegation on the following conversation
overheard by Witness 11:
On October 30, 2015, [Witness 11] states that he was in the
Ratty in line to get food when he recognized the Complainant
directly ahead of him in line. The Complainant was talking to
a female friend. The friend was crying and the Complainant
was comforting her. The friend said, “We failed. We
messed up. It didn't work. Every time we try and get him
on something it doesn't work.” Witness 11 states
that several times he heard the Complainant and her friend
say the Respondent's name. He also recalled the
Complainant saying, “We'll get him. My uncle is an
important lawyer in New York and [the Respondent] can't
keep countersuing us.” Witness 11 also heard one of
them say, “We'll figure this out, we'll get
[Witness 14] to do something.”
(Id. at 28-29.) Ann and Witness 9 described a series
of events leading up to this conversation in which John had
behaved badly, including the violation of a no-contact order.
(Id. at 27-29.)[4]
On
February 29, 2016, Perkins sent an initial draft of the
investigation report to Walsh for review. (See
Perkins Report First Draft, Ex. 10; 02/29/16 Email Chain
between Walsh and Perkins, Ex. 11.) Walsh responded that day
with her red-lined revisions and comments. (See
02/29/16 Email Chain between Walsh and Perkins, Ex. 11; Walsh
Redline of Draft Report, Ex. 12.) In a section entitled
“Relevant Policy Sections, ” Perkins' listed:
(1) Offenses VII.A and VII.B and the definitions of consent
and coercion in Brown's Title IX Policy, and (2)
Brown's 2014-15 Code. (Perkins Report First Draft 1, Ex.
10.) In her revisions, Walsh rewrote the language under the
“Relevant Policy Sections” to cite only to
Offense III of the 2014-15 Code. (Walsh Redline of Draft
Report 1, Ex. 12.) Walsh stated that she deleted the
citations to the offenses and definitions under the Title IX
Policy because the disciplinary case involved charges against
Doe under the 2014-15 Code. (Trial Tr., vol. II, 21:15-19,
ECF No. 52.)
Perkins
also informed Walsh that “the Respondent's
‘conspiracy' claim . . . forced me to include some
information about the Respondent's interaction with
[Witness 9]. I felt it was important to include some
discussion of the claim because he was so adamant about me
interviewing [Witness 11] and I think it is this conversation
that convinced him there was some sort of conspiracy against
him.” (02/29/16 Email Chain between Walsh and Perkins
1, Ex. 11.) She added that “if, now that he sees this
explanation, he accepts it, I thought it would be easy to
simply redact that section so that ...