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JMU faces lawsuit for its handling of sexual misconduct case


A former JMU student has filed a lawsuit in federal court claiming that the university “wrongly disciplined and suspended” him in an investigation into alleged sexual misconduct.

The lawsuit was filed in Harrisonburg’s U.S. District Court for the Western District of Virginia on May 11. The plaintiff in the case is referred to as John Doe, and the defendants are listed as JMU President Jon Alger and Mark Warner, JMU’s senior vice president of student affairs and university planning.

A university statement issued in response to the lawsuit says that Alger and Warner are listed in their “official capacity only,” and that the complaint “contains no claims of wrongdoing by either administrator.”

According to the filing, Doe was suspended from JMU on Jan. 9 of this year through the year 2020 after he was deemed “responsible” for alleged sexual misconduct.

The ruling allegedly came following an appeal of the case by a female student involved, referred to as Jane Roe in the lawsuit.

The case claims that Doe and Roe had consensual sex in Doe’s dorm room in the early morning hours of Aug. 23, 2014 and again the following week. After the first sexual encounter, they allegedly “exchanged numerous friendly communications over several days” and Doe visited Roe in her dorm room on Aug. 24. The lawsuit says that they were both freshmen living in the same dorm, but on different floors.

The complaint alleges that Roe returned to Doe’s dorm room several days after their second sexual encounter, but when she saw another female sitting on his bed she promptly left. Allegedly, Roe and Doe had only two subsequent interactions following that encounter, both initiated by Roe.

The lawsuit states that on Nov. 6, 2014, Doe received an email from JMU’s Office of Student Accountability and Restorative Practices (OSARP) about charges of sexual misconduct against him. In the lead up to the hearing, Doe reviewed files on which the charge was based.

One file was allegedly from the dorm’s resident advisor and hall director, dated Oct. 24, 2014. Another was allegedly from a JMU Title IX officer, dated Oct. 29, 2014. Both files allegedly state Roe’s claim that her first sexual encounter with Doe wasn’t consensual, and she allegedly told the Title IX officer that she was drunk.

Another file was allegedly added later, dated Dec. 3 and from a female student who claimed that she saw Roe drinking on the night of her first encounter with Doe.

At a hearing on Dec. 5, Roe’s roommate allegedly claimed that she didn’t believe Roe was drunk when she saw her in Doe’s room “shortly after the first sexual encounter.” Also, her suitemate allegedly claimed that “she had no personal knowledge of what happened on the night in question as she was not involved.”

That same day, a hearing panel chaired by Josh Bacon, the director of OSARP and the associate dean of students, allegedly found Doe “not responsible” for the sexual misconduct charge.

Roe then allegedly filed an appeal on Dec.10, and submitted a typed statement from a “support person” claiming that she, Roe and Roe’s roommate had been drinking on the evening of Aug. 22 and that, at an off-campus party, she thought that Roe was intoxicated.

The lawsuit then claims that Roe was given over two days of additional time to submit more evidence ahead of an appeal hearing, originally scheduled for Dec. 18. During that period was when Roe submitted evidence that allegedly included a typed statement from Roe’s suitemate, dated Dec. 5, that said she didn’t know anything about the events of Aug. 22 until she found out “later in the semester.” The statement also allegedly claimed that the suitemate wanted to help Roe because she believed Doe had “a similar experience with another unnamed girl.”

In addition, there allegedly was an undated email from the suitemate to OSARP claiming that Roe’s roommate intentionally provided false information during the original hearing.

Another piece of the new evidence allegedly included a voicemail from Roe to a friend at another college. The lawsuit claims that the voicemail was left by Roe and her roommate on the night of Aug. 21, and that Roe and her roommate said they were drinking and that Roe claimed she was drunk in the message.

Also, Roe allegedly sent an email to OSARP on Dec. 17 claiming that the voicemail was evidence that she was drunk and “unable to give consent to sex” in the early morning hours of Aug. 23.

Then the lawsuit claims that, on Jan. 8, 2015, an appeal board met “in secret” and reversed the original decision, finding Doe “responsible” for the sexual misconduct. The board also recommended that Doe be suspended immediately, through the end of the spring semester in 2020. The next day, Warner allegedly affirmed the decision and OSARP notified Doe. The lawsuit claims that Doe and his family were also told that it was a final decision with no available appeal.

According to the complaint, Doe’s 14th amendment due process rights were violated over the course of JMU’s proceedings. Doe is seeking the right to re-enroll as a full-time student at JMU starting with the upcoming fall semester.

A background section of the lawsuit references public criticism to JMU’s handling of a case involving former student Sarah Butters, who alleged that she was sexually assaulted by three JMU students on a spring break trip in 2013. The three students received the punishment of expulsion after graduation, allegedly 372 days after Butters first went to a university official about her allegations.

The Butters case received national attention last year. JMU was also added to a list of schools under federal Title IX investigation by the U.S. Department of Education’s Office for Civil Rights.

Doe’s lawsuit claims that, in the wake of those events, “JMU’s senior officers, especially Defendants Alger and Warner, have been and continue to be under significant public pressure to respond quickly and decisively when a female JMU student makes a complaint alleging sexual assault.”

The lawsuit also claims that, "Defendants Alger and Warner, and other employees and agents of JMU, were acting under color of state law and under significant public pressure to avoid a new controversy regarding JMU's processes for responding to allegations of sexual assault when they violated Plaintiff's constitutional rights, and denied him any meaningful right to participate in the Appeal."

Here is JMU’s full statement regarding the lawsuit:

“Individual administrators are named in the lawsuit in their official capacity only. The complaint contains no claims of wrongdoing by either administrator. They are named in this type of case only because they have the authority to potentially reinstate the student.

While the University cannot and does not comment on the specific factual allegations involved in litigation, we can state that the University believes that this case is without merit. The University has followed its policies and procedures written to comply with federal guidelines.

This is an example of the complexities involved in sexual misconduct cases. A university is not a court of law and the same rules that apply in criminal cases do not apply to student conduct proceedings. No matter how the proceedings are handled, at least one of the parties will likely be unhappy with the results and may choose to go to federal court.

By now we have all learned of the need to withhold judgment when only one side of such cases is presented. This complaint contains misrepresentations and mischaracterizations of fact and is without merit.

Finally, the university takes the issue of sexual assault very seriously, and continues to work with its constituent groups in compliance with all federal and state laws in prevention, training, awareness, and support of the members of our community.”

Bill Wyatt, JMU’s acting director of communications and spokesperson, said that JMU does plan to respond to the lawsuit in court. It has until June 1 to do so.

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