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Judge: Accused student faced 'inadequate' campus sex assault process

Another federal judge has allowed a lawsuit from a student accused of campus sexual assault to continue forward, calling the school's process for determining his guilt "inadequate."

Judge Elizabeth K. Dillon — a President Obama appointee — allowed the student's lawsuit to survive a motion to dismiss from his university. John Doe, as he is referred to in court documents, will be able to continue with his lawsuit against James Madison University, which expelled him for an alleged sexual assault in 2014.

Doe met his accuser at a dorm party in August 2014 of his freshman year. The two exchanged text messages after the party dissipated and eventually ended up in the accuser's dorm room. The two had sex, and continued to exchange "friendly communications" during the next couple days.

Two days after their first encounter, the accuser invited Doe to her dorm room. The next week, she went over to his dorm room and the two had sex again. But several days after that, the accuser went over to Doe's dorm with a pillow and a blanket. There she saw another woman sitting on Doe's bed, so she immediately left, according to the lawsuit. Doe and his accuser had two encounters after that day, both of which were initiated by the accuser.

Doe was informed on November 6, 2014 that he had been accused of sexual misconduct, but his accuser was not identified and he received no details of the accusation. He was, however, informed that he could not contact the woman whom he had slept with several months earlier.

A week later, Doe was allowed to review the charges against him, but he could not make copies of the file. He could only make notes. The charges consisted of two statements, one from his accuser's resident advisor and another from JMU's Title IX officer. The reports stated that the accuser claimed the first sexual encounter with Doe was not consensual. The Title IX officer's report also stated that the accuser was drunk during the encounter.

The day before his hearing, Doe was given the names of five witnesses that would speak. He was told by a university administrator that "discussing this case before the case review with any of the witnesses… may lead to an additional charge of interference with the Accountability Process." This meant Doe couldn't reach out to the witnesses to know what they were going to say or effectively determine how they were involved during the night in question.

Doe checked later in the day to see if any additional evidence had been added to his file. A new statement had been added, from a female student who claimed to see his accuser drinking prior to their first sexual encounter.

At the hearing, Doe's accuser gave a "victim impact statement" (notice the ingrained bias by calling an accuser a "victim" even before the verdict was reached). In her statement, the accuser talked about issues from her past.

Despite this initial bias, the hearing continued with testimony that was supposed to support the accuser's claims. Her roommate, however, said she didn't believe the accuser was drunk or otherwise incapacitated when she saw her just after the sexual encounter. The accuser's suitemate said she did not know what happened prior to the encounter.

Doe's evidence in his defense consisted of a photo of himself, his accuser and friends taken the night of the alleged sexual assault, and screenshots of the text messages between him and his accuser. He also testified that he had seen her multiple times after the first encounter and that they had sex again.

Doe was found "not responsible" for the sexual assault. But the accuser was able to appeal the decision. The accuser had a "support person" submit a statement saying she had been drinking after the photo was taken but before the sexual encounter. She acknowledged that Doe had not been present during the drinking.

Doe was not allowed to appear before the appeal board to defend himself from the new statement, and his accuser was granted multiple extensions to provide new evidence. She eventually provided a new statement from her suitemate that said she didn't know what happened, but she had learned of the details "later in the semester." The suitemate also said she believed Doe "had been engaged in a similar experience with another girl." The girl wasn't named. The accuser also submitted an undated email from the suitemate to the school's investigators that claimed the accuser's roommate lied to the hearing board. She also called Doe a rapist.

In addition, the accuser submitted a voice message she left on a friend's cell phone and a screenshot from the phone. She claimed this was evidence that she "was drunk and unable to give consent." The school did not send Doe all of the new material submitted by his accuser, and the appeal board reversed the earlier decision and found him responsible. It decided to suspend him until the year 2020 to allow his accuser to complete her undergraduate degree and a graduate degree if she chose. On top of that, a police escort accompanied Doe off campus.

Doe sued, claiming the appeal board reached its conclusion on false or misleading pretenses. His initial lawsuit was dismissed, but he was given leave to amend.

Judge Dillon again dismissed the lawsuit based on a count of Doe's liberty interest to his good name, but she allowed the lawsuit to continue based on Doe's property interest in his education. He argued the school took away his property interest without due process protections, in part because he was not allowed to attend or defend himself in front of the appeal board. Dillon found "that Doe has alleged sufficient facts to state that the process he received was inadequate."

While this ruling is not as strong as the recent one against Brandeis University, it is a positive step forward to see federal judges now allowing these lawsuits to move forward. People deserve due process, no matter where they are accused of a crime (and sexual assault is still a crime in this country). Those who are branded as rapists need a proper chance to defend themselves.

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