A Drake University student who was expelled for sexual assault despite evidence he was the party assaulted received a win in court when a judge refused to dismiss his lawsuit, according to court documents provided to the Federalist.
The student, whom I will refer to as John Doe since his accuser is not identified in court documents, was expelled after Drake railroaded him and refused to provide accommodations for his learning disabilities during its investigation into an accusation against him. His accuser admitted during the campus hearing that she had sexually assaulted him and even provided altered text messages that omitted her side of the conversation to make it appear as though he had stalked her. She was never punished, but John was expelled based on her accusation.
John’s father, Thomas Rossley, was on Drake’s board of trustees for 23 years, but was removed after he attempted to get his son a fair investigation and accommodations for his disability. Rossley is suing Drake in a separate lawsuit.
John knew his accuser before the night of the alleged incident. They met up on campus after both had been drinking. John was also on medication for language-based learning difficulties, Attention Deficit Hyperactivity Disorder, anxiety, and difficulty quickly processing questions and articulating answers.
Jane Doe Admits She Acted Without His Consent
After meeting his eventual accuser, referred to as Jane Doe in court documents, John offered to hail her a cab home. John alleges in his lawsuit that Jane requested they go back to John’s fraternity house, a place she visited occasionally. The driver of the cab would later say the two were “making out” in the back seat.
John says he doesn’t remember much after leaving the bar where he met Jane. When they arrived at the fraternity house, Jane suggested they go to John’s car for privacy. Once inside, Jane initiated oral sex on John. John’s lawsuit indicates he does not remember giving consent for this action, and based on the amount of alcohol he had drunk and the medications he was on, he wouldn’t have been able to consent anyway.
During his hearing, Jane admitted she initiated the oral sex without John’s consent, but said she did so because she was “just giving him what he wanted.” Such an excuse would never be accepted from a male student. Jane claimed she ran into the fraternity house to get away from John, something she couldn’t have done since she didn’t have the security code to get in. John entered this code when the two went inside together.
John claimed he didn’t remember anything until Jane was leaving. John was lying in his loft bed, and woke up the next morning fully clothed, including his shoes.
Jane claimed that she had been lying on a beanbag chair and that she and John had sexual intercourse, but she told him to stop. She claimed John was wearing a yellow condom. Campus investigators asked John if he owned any novelty condoms, to which he replied that he did not. Jane’s claim about the yellow condom was mentioned during the hearing, but John’s claim that he did not own such a condom was not.
Jane also claimed that she went to the hospital the day after the encounter but was denied a rape kit. Drake never asked for proof of this hospital visit or the results of the exam Jane claimed she received.
The Hearing Appeared Stacked Against John
From the beginning, Drake’s investigation was stacked against John. The school hired an outside investigator, Mary Howell Sirna, because John’s father was a trustee, but she had just been hired as Iowa State University’s Title IX coordinator and interim director of the Office of Equal Opportunity. When John told her he didn’t remember much from the night in question, this woman wrote “lie” across her notes (notes John’s father subsequently obtained).
Sirna and fellow investigator Tricia McKinney also failed to interview key witnesses who could have provided actual evidence. They refused to include the testimony of John’s roommate, who was in the room when the alleged assault took place, because they said his testimony was unreliable. They also refused to interview at least nine other witnesses, including one of Jane’s friends who had seen her earlier in the evening and was the first person Jane contacted after the incident.
The school also refused to allow the testimony of two men Jane went to see immediately after she left John’s room. She had walked across the street to the fraternity’s annex and got into bed with a male friend, who told her to leave after she got on top of him. She then got into bed with another man, whom she was attracted to, and remained with him until the morning.
These fraternity brothers told John about this afterwards. This second man would have testified that Jane did not seem intoxicated and showed no signs of pain, even though she claimed during the hearing that sexual intercourse caused her immense pain due to a medical condition (the school never requested documentation for this condition).
John had texted Jane at 3 a.m. after their encounter to ask if she had returned home safely. She texted: “All good, babe” from the bed of one of the other fraternity members.
All This Evidence Was Ignored
None of this mattered to investigators. John told them he was “not in a state to be with her” and that he “was not able to give consent that night.” Jane admitted she received no consent for the oral sex, but no investigation was launched against her for sexual assault. John even attempted to file a report against her, but Drake refused to investigate, claiming his report was retaliation. Nowhere in Drake’s policy does it say the school can ignore a sexual assault accusation for retaliation.
Also during the hearing, Jane presented an edited set of text messages that made it look like John had been messaging her without response. John provided the complete set of texts, which included her responses. Despite lying at the hearing and admitting to sexual assault, Jane was never punished.
Instead, Drake helped Jane railroad John every step of the way. The school refused to provide disability accommodations for John, despite numerous requests, and became essentially a co-complainant against John. Jerry Parker, acting dean of students, stood in for Drake against John, and was allowed to call his own witnesses and receive his own opening and closing statements. This meant the accusing side was allowed 20 minutes for opening arguments, 20 minutes for closing arguments, and had 10 minutes to rebut John’s arguments. John, meanwhile, was only allowed 10 minutes each for opening and closing argument, and five minutes for rebuttal.
Parker also personally arranged for Jane to have an attorney after learning John had hired one with his own money. Parker also provided that attorney with all relevant documents relating to the investigation. He also allowed Jane to bring an advocate separate from the attorney, and provided Jane’s friends and family a private room in the building. John’s friends and family were not allowed in the building, and he was allowed no advocate in addition to his attorney.
So the Outcome Isn’t Surprising
Unsurprisingly, John was found responsible for sexual assault and expelled. Drake was so committed to this decision that it then removed John’s father from the board of trustees for pointing out the flaws in the investigation and reminding Drake that it had violated the Americans with Disabilities Act by denying his son accommodations.
John filed a lawsuit against Drake. U.S. District Court Judge Rebecca Goodgame Ebinger allowed most of John’s claims against Drake to survive. Ebinger dismissed John’s claim that his due process rights were violated because Drake is a private university and therefore not required to follow the Fourteenth Amendment. Let this be a lesson to other young men thinking of attending private universities.
John also sued those who investigated the accusation, but Ebinger dismissed them as co-defendants. The lawsuit will continue with just Drake and its board of trustees as defendants.
John’s claims that his rights under Title IX were violated, that Drake breached its contract with him through its lopsided investigation, that it breached the covenant of good faith and fair dealing, that it negligently inflicted emotional distress, is liable for damages under theories of estoppel and reliance, and violated the Americans with Disabilities Act were all upheld.
Colleges Keep Losing On the Merits of Kangaroo Courts
Based on how other schools have responded after a decision like this, I would expect this case to be settled out of court soon. John’s father still has his lawsuit against the university working its way through the court. To read more about how Rossley was treated by the board of trustees, see my previous article about his lawsuit.
It’s a doozy.
“My son is looking forward to his day in court when all he needs to do is prove by the preponderance of the evidence that the University violated his civil rights,” Rossley said in a statement to the Federalist (emphasis original). Rossley’s mention of the preponderance standard is a knock at the university system, which uses the incredibly low standard to brand young men as rapists.
Drake University did not respond to a request for comment prior to press time.
This decision follows a summer of wins for students falsely accused of sexual assault. Schools have settled with some high-profiled students. Allegheny College settled with a student who had been expelled even though the accuser’s friend said the woman just wanted to get the young man punished for not dating her.
Columbia settled with the man accused by “mattress girl” Emma Sulkowicz, who had sent numerous texts to him before and after the encounter indicating she had unrequited feelings for him. She turned her claims into an art project that received worldwide attention and praise before his side of the story was ever told.
Colorado State University-Pueblo settled with Grant Neal, who had provided investigators a recording of his alleged victim saying she had not been raped (the accusation was actually brought by a third party).
Finally, Amherst College settled with a young man who had actually been the one who was sexually assaulted. The woman claimed she invited a friend over after the encounter because she was distraught, but in reality, she had invited another man over whom she had a crush on. She also texted a friend throughout the night about the first encounter, saying “it’s pretty obvi [sic] I wasn’t an innocent bystander.” She also complained that the second man wasn’t making a move on her, and didn’t have sex with her until 5 a.m.
UPDATE: In a statement to the Federalist, Drake University’s director of public relations, Jarad Bernstein, said the school “strongly disagrees” with the claim that Rossley’s son was wrongfully expelled.
“In response to Drake’s request for a partial motion to dismiss, the court recently decided to dismiss all claims against the University officials named in this case, and to dismiss a constitutional claim against the University,” he wrote in an email. “This is a key step in the litigation and is consistent with the University’s commitment to vigorously defend this case.”
Read more at: http://thefederalist.com/2017/08/16/drake-university-faces-lawsuit-expelling-learning-disabled-sexual-assault-victim/