Campus Sexual Misconduct Policies Reveal Potential Gender Bias by Cynthia P. Garrett

Two male college students claiming they were falsely accused of sexually assaulting a fellow student filed a lawsuit in Maryland state court in May 2014, naming as defendants Salisbury University and three of its students. The plaintiffs believe Salisbury officials unjustifiably presumed they were the initiators of the alleged sexual misconduct, despite unanimous eyewitness testimony to the contrary.

Background

Plaintiffs Austin Morales and Patrick O’Hara were students at Salisbury when they attended an off campus party at another student’s home on October 5, 2013. During the party several students allegedly witnessed defendant Teresa Rogers, who is named in the complaint, kissing and affectionately touching Morales, “drunk and dancing around,” “pulling up her skirt,” “asking people to slap her buttocks,” and “making out with people if they were entering or leaving the house.”

These events came to the attention of Salisbury officials because, according to Rogers’ friends, she “became hysterical” after the party and “was clearly intoxicated and distraught.” Rogers was taken to the Wicomico County Sheriffs Office in the early morning hours of October 6th, where she filed a complaint alleging Morales and O’Hara had sexually assaulted her at the party. Rogers claimed she remembered only ‘being touched and kissed, including her breast area when she "came to."’

According to Rogers, on the morning of October 6th her blood alcohol content registered .128. Later that same day Wicomico County Sheriffs interviewed witnesses and investigated the home where the party had been held but, according to the plaintiffs, a Sexual Assault Forensic Exam “failed to establish any evidence of sexual assault,” and no blood alcohol test results ever materialized.

Was There an Assault?

Salisbury’s University Student Code of Conduct defines “non-consensual sexual contact” as “any sexual touching, however slight … the touching of an unwilling person or non-consensual person's intimate parts…” Sexual misconduct is defined as "any non-consensual physical contact” “committed … through the use of the victim's mental or physical incapacity, including through consumption of drugs or alcohol."

In February 2014 Salisbury’s Community Board (Board) concluded that Morales and O’Hara “more likely than not” had sexually assaulted Rogers and suspended the plaintiffs for two semesters. The Board reasoned that because Rogers was “too intoxicated” and had “no distinct memory of what transpired,” she “lacked the capacity to consent to any sexual contact.” The Board also noted that Rogers’ lost underpants were “circumstantial evidence” of an assault.

The Board’s decision relied heavily on Rogers’ “account” and “credibility,” even though Rogers did not cooperate with the Board "beyond the initial investigation,” nor did she provide testimony for or appear at the hearing. In fact, Salisbury’s investigator was “evasive” about why and when Rogers had stopped cooperating, according to Professor Rob LaChance, Morales’ assigned hearing advisor and Salisbury’s Director of The Center For Conflict Resolution.

Professor LaChance disputed the Board’s conclusion that the events could be characterized as a sexual assault when there was no “evidence to support anything more than kissing took place.” LaChance “certainly didn't hear evidence to support a conclusion that fondling took place.”

LaChance also criticized the Board for disregarding Rogers’ October 7th text messages to Morales, in which Rogers “essentially ask[ed] for forgiveness” and protested that “the whole thing was a misunderstanding that got blown out of proportion.”

The Board dismissed the texts, because Rogers had claimed that when she was in the hospital, a “detective” had “coerced” her into texting Morales. Unfortunately, as is true in many of these amateurish, one-sided college sexual assault investigations, Salisbury’s investigator never sought to corroborate Rogers’ claim. Perhaps more egregiously, the Board overlooked the fact that Rogers’ texts were sent two days after the alleged incident, not while Rogers was at the Sheriffs Office.

What is “Intoxication”?

Rogers never provided evidence of either blood alcohol or medical exam test results, despite repeated requests from Salisbury officials. Undeterred by Rogers’ lack of cooperation, the Board determined Rogers had been too intoxicated to consent, primarily based on her unsubstantiated report of blood alcohol test results.

The Board’s representation that witnesses described Rogers “as drunk or heavily drinking at the party” was vigorously contested by LaChance, who observed that “each of the witnesses … described that the alleged victim was able to hold conversations (without slurring her words) … “ and had no problem with “balance or coordination that would be typical of someone in an intoxicated state.” According to LaChance, witness testimony indicated “even the alleged victim's friends didn't believe she was intoxicated” during the party.

Presumptions and the Effects of Intoxication

Following the advent of stricter campus sexual assault policies, college tribunals frequently have identified the male participant in drunken sexual encounters as the initiator, notwithstanding the comparable intoxication of both participants, and even in the presence of conflicting evidence. Sokolow, Brett, “ATIXA Tip of the Week Newsletter; Sex and Booze,” Association of Title IX Administrators, April 24, 2014.

The instinctive propensity of college tribunals to brand men as initiators of sexual encounters is definitively “gender bias:” bias due to “socially constructed expectations” and “expectations due to attitudes based on the sex.” Rothchild, Jennifer, “Gender bias,” Blackwell Encyclopedia of Sociology Online; ‘“Gender bias,” The Free Dictionary by Farlex, Legal Dictionary Online.

Similar to long held beliefs that certain behaviors make women more prone to becoming sexual assault victims, the likelihood that men will initiate sex may be demonstrated by statistics, but it is nonetheless unfair to saddle any individual man or woman with assumptions predicated on statistical likelihoods. See U.S. Department of Justice 2007 Sexual Assault Study, Section 5-13 and Example 5-5 (“the frequency with which women reported getting drunk since entering college was positively associated with being a victim.”)

The Board’s decision to sanction Morales and O’Hara undoubtedly was influenced by gender bias if, as plaintiffs allege, witnesses agreed that Rogers, and only Rogers, “initiated any and all physical contact with Plaintiffs and other males at the Party.” It is therefore apropos that Morales and O’Hara have chosen to challenge the Board’s implicit presumption that, because they are men, they were the initiators of sexual relations with Rogers and thereby responsible for ascertaining her degree of intoxication, while Rogers had no duty to ascertain theirs.

The Lawsuit

In their complaint, the plaintiff’s allege the defendants negligently, maliciously, intentionally or recklessly presented the Board with false and defamatory statements harmful to their standing at Salisbury, as well as their future educational and employment opportunities. They allege cause of action for defamation, conspiracy, intentional infliction of emotional distress, breach of contract and promissory estoppel.

The plaintiffs are seeking compensatory and punitive damages for their difficulty in transferring to another university, reduced future earning capacity, lost tuition payments, mental anguish, humiliation and loss of reputation. They also are requesting that Salisbury reinstate them, award O'Hara his diploma, and “immediately remove all suspensions and/or disciplinary notations” from their student records.

On September 30, 2014 the Maryland state circuit court denied defendants’ motions to dismiss, finding that the plaintiffs had alleged sufficient facts to support their claims. The defendants’ motions for summary judgment based on claims of privilege, immunity, collateral estoppel and lack of necessary parties, also were denied as “too premature,” because there has not yet been any “meaningful discovery.”

The plaintiffs began serving discovery notices in October. It will be interesting to see if discovery produces evidence that gender bias contributed to the Board’s decision to hold the plaintiffs responsible for sexual assaulting Rogers. Unfortunately, as feminists have learned in their decades long quest for equality, bias is not always conspicuous.

Cynthia P Garrett is a California attorney and Board Member for Families Advocating Campus Equality.