©2015 Kenneth N. Margolin
A case recently filed in federal court, against Amherst College, reveals the injustice that occurs when quasi-judicial proceedings with much at stake, are tainted by politics, political correctness, fear, and a misguided federal policy. In the case of John Doe v. Amherst College, et al., the plaintiff, John Doe was an Asian American student at Amherst, accused of rape, found responsible, and expelled. A review of the Complaint, accompanied by multiple attachments that lend credibility to the plaintiff's allegations, reveals a story of a rush to reach a pre-conceived finding of wrongdoing against the accused with barely a breath taken to consider evidence inconsistent with a sexual assault having occurred.
As is common in college sexual assault allegations and denials, both the young man and young woman involved had consumed considerable amounts of alcohol. Both accused and accuser agreed that they engaged in oral sex. The accuser, the female student, claimed that she began the oral sex voluntarily, but that when she wanted to stop, the male student forced her to continue. The male student said that he had so much to drink that he was essentially blacked out and had no memory of the encounter, but that he would never force himself on a woman. Despite the accuser's claims that she had been raped, she never filed a criminal complaint against the male student, and filed no complaint with Amherst college for nearly twenty-one months. When she finally filed her complaint, it was at the urging of a campus self-anointed "victims' advocate," who was a member of the college's Special Oversight Committee on Sexual Misconduct.
When defending against a claim of sexual assault, it is always important to consider – if the allegation is untrue – what motive the accuser might have to make the false claim. According to the federal court Complaint against Amherst College, John Doe was steadily dating the friend and roommate of the accuser; the accuser expressed worry to friends, how angry her roommate/friend would be with her, if she learned that she had sex with her boyfriend. This fact turns out to have been crucial, but its importance was not appreciated until after the hearing had ended. Once John Doe was notified that he was accused of sexual assault, the deprivation of his education at Amherst College, and the assault on his reputation and his future, unfolded rapidly. The College appointed a Title IX investigator, who, according to the Complaint, conducted a hasty and shoddy investigation. For example, the accuser revealed that she had invited a friend over after the alleged assault, to keep her company, because she felt "alone and confused." The investigator never asked the name of the friend, who turns out to have been a male student, and never interviewed him.
At the hearing, as is typical, John Doe was not allowed to be accompanied by counsel. He had only a faculty advisor, who had no legal training, and no skill in questioning witnesses, whether they were testifying for or against the accused. In any event, the advisor could not actively participate in the hearing. During hearing testimony, it came out that the accuser had texted two fellow students, one about the event, and another, the male student she invited over after the alleged assault. Despite the fact that the accuser had told the investigator that she never wrote to anyone about the assault, the hearing officials made no demand for the texts. As a result of a policy by the federal Department of Education, a tribunal hearing a sexual assault case must use the civil standard of "preponderance of the evidence" in determining the guilt or innocence of the accused. In other words, if they find it even a fraction more likely than not that the accuser's story is true, they find against the accused. The reality of the standard is that it invites college officials to ignore weak and contradictory evidence, and to find the accused responsible as charged. A day after the hearing, John Doe was notified that he was found "responsible" for the sexual assault. Although the hearing officials found it credible that John Doe was blacked out from alcohol, they also credited the accuser that she was assaulted. John Doe was informed that he was expelled immediately. He was given one hour to gather his belongings and vacate the campus.
After his appeal was summarily denied, John Doe hired counsel. The counsel's investigation uncovered one text from the accuser in which she essentially admitted that the sex with John Doe was consensual, and she was worried about her roommate finding out, and another text in which she invited another male student over to "entertain her." This was shortly after she left John Doe. The male student and the accuser ended up having sex, at the instigation of the accuser. He provided John Doe's attorney with an affidavit stating that at no time did the accuser appear distressed or upset. When John Doe's attorney presented the new evidence to Amherst College and demanded that the hearing be reopened, the College refused to consider the evidence or its expulsion of John Doe.
The lawsuit advances a number of legal theories, including breach of contract, violation of Title IX (for failure to provide a fair and reasonable process), civil rights violations, and intentional and negligent infliction of emotional distress. If the facts of this case are as alleged in the Complaint, we must hope that the case either settles on terms favorable to John Doe, or survives summary judgment, and proceeds to a favorable jury verdict. The elements of this case – a proceeding in an environment of hysteria in which men accused of sexual assault are presumed guilty before trial, inadequate investigations, a hearing in which the rights of the accused are compromised in the name of "justice" for the accuser, and an unwillingness to find an accused male not responsible, despite serious credibility issues in the accuser's story, makes this case typical of college efforts to adjudicate sexual assault allegations.
Many civil libertarians have rightly questioned whether college officials should have any role in determining the truth or falsity of complaints of sexual assault. Rape is, after all, a serious crime. A rapist should be criminally charged, and if found guilty, severely punished. The answer to those who claim that it is too difficult to prove rape in the criminal justice system, is not to devise a process in which the college education of an accused man can be taken, and his entire future damaged, with few of the procedural protections guaranteed to an accused in the criminal system, and in which the arbiters of the accused's fate have no legal training, no expertise in assessing evidence or the credibility of witnesses, and who make their decision with a baying mob behind them, demanding that they find the accused responsible. That to me, sounds like the very definition of injustice.