School Finds Sex Assault Accuser Not Credible, Still Suspends Accused Student
A Syracuse University conduct board determined that two-thirds of a female accuser’s accusations against a male student were unfounded, yet allowed her to change her account of the third accusation, and indefinitely suspended the male student.
The male student is now suing Syracuse for gender bias and for failing to provide him due process rights.
The student, referred to in court documents as John Doe, met his accuser, referred to only as Jane Roe, at a bar on Sept. 1, 2016. The two were with respective friends at the bar, and the group decided to go to a nearby fraternity house, where John and Jane continued to talk and flirt. Jane invited John back to her dorm room.
After grabbing some food, Jane’s roommates went back to their rooms, leaving John and Jane alone together. John’s lawsuit claims the two began kissing and touching each other, with Jane initiating physical escalation by moving her hands down John’s pants. John asked if Jane would give him oral sex, and says that she verbally consented to the act.
John claims that Jane then asked him to her bedroom to continue the encounter. Jane asked her roommates to leave. One witness claimed to the school that it was “pretty clear what they were going to do and [Jane] seemed okay with it,” according to court documents.
The two removed their own clothes and began sexual intercourse after a discussion of condom use. Another student in the dorm said they heard “sex noises” but “nothing unusual.” After the two were finished, John says Jane asked for his contact information so they could see each other again. John kissed Jane goodbye and left.
The next day, the two texted and Jane asked John to come to her room again, but he had prior commitments. A few days later, he texted Jane worried that she could become pregnant from their unprotected sex. After that, the two saw each other again with friends, and John says Jane acted normal around him.
But four days after that encounter John began hearing rumors that he had done “unspeakable things” to Jane. Nearly two months later, Jane filed a formal complaint with Syracuse accusing John of forcing her to perform oral sex on him and performing anal sex on her without her consent. Jane originally said the vaginal intercourse was consensual, but later changed her story to say that she initially consented to intercourse but withdrew her consent during the act. John claims no such withdrawal occurred.
When John was informed that an accusation had been lodged against him, on Nov. 14, 2016, he was not given the specifics of the allegation or what student conduct codes he violated. This allowed Jane to change her story without documented evidence that such a change occurred.
John only learned that Jane changed her story about consenting to sexual intercourse during his meeting with Syracuse Title IX coordinator Bernie Jacobson, who was investigating Jane’s claims.
Jane’s original accusation was only verbally relayed to John, so he had no documentation to show that she had changed her story. John’s lawsuit claims that, because Jacobson’s background was in victim advocacy, he acted as a prosecutor against him, rather than an impartial investigator.
Even though Jane’s accusation changed, Jacobson treated her testimony as “consistent.” Jacobson interviewed John only once, and didn’t follow up on any issues he raised about Jane’s credibility, including the claim that she had given different versions of her story to different people, who had informed John of what she said.
Jacobson also failed to investigate contradictions from witnesses about Jane’s behavior after the sexual encounter with John. One witness claimed Jane “didn’t go out for a long time” after the encounter, but others said she attended parties and events shortly after.
Jacobson also failed to provide John with all the evidence against him, and didn’t allow John to respond to the evidence he was given before it was submitted to Syracuse’s Conduct Board. After Jacobson wrote his investigative report, Jane submitted a letter from a nurse (dated Jan. 20, 2017 – four-and-a-half months after the encounter) that Jane said she had vaginal bleeding after the encounter. During her initial accusation, Jane claimed she had anal bleeding (which wasn’t mentioned in the nurse’s note). John was not provided a copy of this letter during the investigation, so he could not challenge the claims.
John was also not provided the names of the witnesses against him and could not challenge their claims.
Jacobson wrote in his report that “no contradictions or omissions are noted” in Jane’s story, and that “significant portions” of the accusation were “corroborated.” John notes in his lawsuit that evidence suggests otherwise, including student witnesses who indicated the oral sex between the two was consensual and others who left the room to give them privacy, knowing what was about to occur and seeing no reason to think Jane was in danger.
Jane claimed her roommates heard her “crying” in her room, but not one corroborated this claim. Jane also claimed John touched her inappropriately prior to returning to her room, but none of the witnesses confirmed such touching occurred.
John was unable to adequately prepare for the Conduct Board hearing because he was not provided with all the evidence against him. The Board also accepted the nurse’s note as a “medical document” even though it was nothing but a note from a nurse relaying what Jane had told her. No testing results were included.
Witnesses were not required to attend the hearing, so John could not ask them questions about their claims, and he had to submit questions in advance to be asked of Jane, and does not know whether any of his questions were actually asked of her.
Jacobson also was not required to attend, so his report when unchallenged.
Ultimately, John was found responsible for sexually abusing Jane, threatening her mental health through his behavior and sexual assault.
The Board found Jane’s claim that the oral sex wasn’t consensual to be untrue, writing in their decisions that Jane “demonstrated consent through her actions.” The Board could also not determine that anal sex occurred (John says the two did not have anal sex). So even though two-thirds of Jane’s claims were found not credible, they still bought her third claim that she initially consented to vaginal intercourse but withdrew her consent at some point during the act.
The Board claimed that Jane’s “actions throughout the process are consistent with a traumatic event such as she described in her statement,” except they found most of her statement to be not credible, and the only traumatic event she allegedly went through was withdrawing sex after she initiated and consented to that sex (again, a story that she changed during the investigation).
John’s attorney, Andrew Miltenberg of Nesenoff & Miltenberg, told the Federalist that there’s only one explanation for how his client could be indefinitely suspended even with facts like these.
“Having litigated on behalf of dozens of accused males on college campuses throughout the country, and represented dozens of others in campus proceedings, I’m especially struck by the complete absurdity of the Title IX process at Syracuse,” Miltenberg said. “There is no credible explanation for the Conduct Board to dismiss two claims but uphold a third — other than a presumption of guilt that was made at the outset of this investigation.”
John is suing Syracuse for Title IX and due process violations, as well as breach of contract.