In December 2013, Amherst College imposed its first major sanction under a new get-tough sexual misconduct policy, expelling a 21-year-old senior after a disciplinary board concluded that he had forced a female classmate to perform oral sex during an alcohol-infused encounter nearly two years earlier.
In April 2014, however, the expelled student presented the college with new evidence — a series of text messages the woman sent to two other male students immediately after the alleged rape, according to a lawsuit. To one, a dorm counselor, she described the sexual encounter in language that suggested it was consensual and she wrote, “It’s pretty obvi [obvious] I wasn’t an innocent bystander.’’
To the other student, she sent text messages inviting him over later that same night to “entertain” her — an invitation that resulted in a second sexual encounter, according to text messages and an affidavit by the male student. The accuser testified during the disciplinary hearing that she had texted a friend to come over after the alleged attack.
In the 13 months since the expelled student obtained the texts and gave them to college officials, it appears Amherst has taken no public steps to revisit its decision to expel the student. On Friday, his lawyer, Max D. Stern, filed a lawsuit in US District Court in Springfield, arguing that the college is guilty of a miscarriage of justice against his client, who is identified as “John Doe.’’
In the weeks after he was expelled and ordered to leave campus, Doe was alerted to the existence of the text messages and obtained copies of both sets of texts with the help of friends, according to Stern. The text messages are included in the lawsuit.
Citing the text messages, Stern charged in his lawsuit that Amherst’s investigation of the episode by an outside lawyer was “grossly inadequate,’’ overlooking signs that Stern says would have cleared his client. What’s more, the lawsuit also asserts that the action taken against John Doe, who is Asian-American, is part of a pattern since 2013 in which the college has sanctioned only “male students of color’’ for sexual misconduct.
Pete Mackey, the Amherst College spokesman, said in a statement that the college’s disciplinary process is consistent with federal requirements and is fair to all parties.
“That process was followed in this case,” he said.
“We are confident that the process the college followed was appropriate and that the court will conclude that the College’s process was fair,’’ Mackey said.
His statement did not address a question from the Globe about whether the college is still confident that the decision was right. He did, however, say that the charge that only male students of color have been disciplined is “incorrect.”
Doe’s accuser, who is identified in the lawsuit by the pseudonym Sandra Jones, did not respond to requests for comment.
The lawsuit is also likely to further fuel an ongoing debate about the tough new standards on sexual assault adopted by colleges and universities under federal government pressure, standards that many legal scholars believe violate the rights of those accused of sexual misconduct.
Under the standard ordered by the US Department of Education, Doe was judged guilty under a “preponderance of the evidence,’’ meaning the three-member disciplinary board — made up of officials from neighboring colleges — found it more likely than not that the allegation was true, said the letter to Doe expelling him. In the past, Amherst and other colleges had used a tougher standard of proof — clear and convincing evidence of guilt.
Meanwhile, the expelled student is in academic and professional limbo. His transcript, which he would need to finish his degree or get a higher position, says he was expelled for disciplinary reasons, according to the lawsuit.
Now 22, he was looking forward to a career that probably would have been enhanced by a degree from one of the country’s most prestigious liberal arts colleges.
For now, he said in an interview, he works at a small company where he started as an intern last year before getting his first promotion.
His superiors wonder why he did not finish college. And he said he is so embarrassed about what happened that he stays home at night, and is so ashamed of being seen by former classmates that he wears sunglasses when riding the subway.
He has a teenage brother. “I had wanted to be a good role model for him, so this is so disappointing,” he said, as his eyes filled with tears. His father knows he was expelled, but not why.
He asked that he not be identified. Though he wants his name cleared, he said he does not want notice of the case to follow him on Google for life. As for his accuser, it is the Globe’s policy not to identify alleged victims of sexual assault unless they decide otherwise.
The sexual encounter that is now in dispute occurred in the early morning of Feb. 5, 2012, months before Amherst became prominently ensnared in a national maelstrom over insensitivity to women students who had been sexually assaulted.
In October 2012, a former student, Angie Epifano, published a harrowing account of how Amherst had her involuntarily committed to a psychiatric facility after she resisted pleas by Amherst’s sexual assault counselor to forget about her rape and forgive her alleged assailant. In 2011, Amherst was one of 55 colleges and universities threatened with the loss of federal funds unless they moved quickly to investigate and punish sexual abusers.
With alacrity, Amherst shifted gears: It forced out the sexual assault counselor. It adopted tough new guidelines governing student behavior and the reporting of sexual misconduct. And it implemented a new disciplinary process designed to deal expeditiously and forcefully with sexual misconduct, in part by adopting the “preponderance of the evidence’’ standard. Doe was the first Amherst student tried under that standard.
The disputed sexual encounter began late on a Friday night, when Jones, the accuser, and Doe were sophomores. He had been dating her roommate, who was out of town, for a month.
According to accounts by the accuser and witnesses given to Allyson Kurker, the outside investigator brought in by Amherst, Doe arrived in a fourth-floor dormitory lounge where several friends had gathered. He was very drunk. She was tipsy.
Within minutes, they were “making out’’ in front of the others, and then left and went to her dorm room.
In her initial written complaint, Jones said that in the dorm room, the entire encounter was forcible. But in her interview with Kurker and during the hearing, she said the oral sex was initially consensual; then, after Doe boasted about “hooking up” with both her and her roommate, she told him to stop. He refused to do so, she said, according to the hearing transcript.
In his defense, Doe said he was not the kind of person who would do such a thing. But he told the disciplinary board he was so drunk that night he had no memory of the encounter.
During the 2013 hearing, Jones’s roommate testified that she had learned Jones had exchanged text messages with a resident dorm counselor just after the alleged rape. But the school made no effort to contact the counselor or obtain the texts, according to the hearing record.
When a hearing officer asked Jones about those texts, she replied: “I didn’t want to address what had happened to me and I was in no position yet to accept that it had been rape. So in my text messaging [to counselor] I only said things about the hook-up as if it had been consensual.”
In the lawsuit, Stern argues that the texts contain evidence that make it clear the sexual encounter with Doe was consensual and initiated by Jones; that she deliberately misled the college’s investigator and the hearing board; that she was motivated to make the allegations so her roommate would not blame her for what happened; and that Doe, who was incapacitated that night, is the real victim in the case.
In the texts, which extend over several hours, Jones and the dorm counselor exchanged the following messages:
Jones: “Ohmygod, I jus[sic] did something so [expletive] stupid.”
Counselor: “What did you do?”
Jones responded that she had sex with Doe. Then she expressed concern that her roommate would find out, noting that her roommate’s friends had witnessed the start of the encounter.
The counselor’s recommendation was to blame Doe for the encounter. Her reply: “But I mean [roommate] knows me it’s pretty obvi I wasn’t an innocent bystander.’’
As she was texting with the counselor, Jones was also texting another male classmate to come to her room: “I mean I happen to have my room to myself this weekend if you wanted to come over and entertain me.”
Hours later, Jones had another text exchange with the counselor that indicated she and that classmate had sex after hours of conversation.
In an affidavit he signed in April 2014, the classmate, who turned over his text messages to Doe early last year, said he had sex that February night with Jones, who was friendly and flirtatious, and did not appear “anxious, stressed, depressed or otherwise in distress.’’
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