Brown University will have to re-adjudicate a years-old campus sexual assault accusation after a judge determined the school suspended him after improperly investigating the accusations against him.
The accused student, named only as John Doe in his lawsuit against the university, was accused by a woman after the two engaged in oral sex following an exchange of text messages about engaging in sexual activity.
Doe’s accuser claimed she made it clear in the text messages she was only engaging in fantasy and didn’t want a sexual relationship with Doe. She claimed their encounter in November 2014 was a more harrowing ordeal than what Doe claims (or what text messages before and after that night seem to suggest). She claims Doe forcefully kissed her even after she told him she didn’t want to, forced his hand down her pants and that she was so scared he would rape her, she agreed to give him oral sex in order to end the evening.
The two had met up to watch a movie that night. Doe claimed in his lawsuit that his accuser was “an active participant,” had gotten up to turn off the lights multiple times (they were in a semi-public place and the lights kept coming back on) and that she got on top of him and straddled him.
His accuser waited a year to accuse Doe of sexual assault, and during that time, Brown’s policy on what constitutes sexual assault changed. Doe was adjudicated under the new, more restrictive, policy, which didn’t exist when the encounter took place. During the investigation, his accuser provided the investigator with text messages between her and Doe that occurred before the encounter. When Doe was questioned, he provided text messages that occurred after the encounter — in which his accuser claimed she was “more excited to see you finally! Haha” — and some texts that the accuser had not provided from before the encounter.
Doe was suspended and subsequently sued. Judge William E. Smith, in his 84-page decision, vacated Brown’s ruling. He did not adjudicate the accusation himself, and did not give any indication whether he felt the accusation was baseless. He merely stated that Brown’s decision to try Doe under a policy that didn’t exist when the alleged sexual assault occurred was improper.
“When combined with other errors set forth herein, it is clear that Doe’s contract rights were violated,” Smith wrote.
Smith was concerned about a lot of the decisions Brown made during the investigation, including not asking for more texts between the accuser and one of her friends, whom Doe believed she conspired with to fabricate accusations against him. A Brown administrator initially included Doe’s claim, but abandoned it and failed to ask for additional text messages that might have proven Doe correct. This, Smith wrote, was a violation of Doe’s rights under Brown policy.
Smith was also concerned that a Brown administrator “did not consider any of the post-encounter evidence in reaching her determination that Doe was responsible.” The accuser had made additional sexual comments to Doe and had said she was “excited” to see him again. The Brown administrator said the training she received from Brown precluded her from including potentially exculpatory evidence, like those texts, because they occurred after the encounter.
Activists often try to play this card, arguing that it doesn’t matter what happens after the encounter; all that matters is the encounter itself. But if someone is flirtatious and “excited” to see someone just days after an allegedly traumatic sexual assault, that has to be included in the investigation. Especially if this person, who was flirting just after the encounter, waits a year to make an accusation. Their reason for doing so after such a long elapse of time should itself be investigated.
Smith was also critical of the activists who flooded his office with angry letters in an attempt to influence his decision.
“These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process,” he wrote. “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.”
This ruling is only sort of good news for Doe, however. Smith’s ruling sends the case back to Brown to retry under the sexual assault policy that existed when the encounter occurred. Given Brown’s bias against the accused, this might not be such a good idea.
“To be very clear, the court is not in any way suggesting that it would be an error for a new panel to find Doe responsible,” Smith wrote. “And if a new panel is convened and it finds him responsible, its findings will be binding … irrespective of this court’s conclusion.”
So Brown could just retry the student, ignoring his rights, and that would be it. Brown did indicate that the ruling had “provided an opportunity to re-examine elements of our policy and procedures.” One can only hope it creates a fairer procedure.
Ashe Schow is a commentary writer for the Washington Examiner.
