James Madison University initially cleared a male student of wrongdoing in a sexual assault dispute. But after his accuser appealed the decision, administrators put him through a wildly unfair additional procedure in which he was not allowed to challenge the entirety of the new evidence against him—or even appear at the second hearing.
He was suspended for five years: JMU wanted to give his accuser as much time as she needed to finish school before he could return.
The accused student, "John Doe," is now suing JMU, and a judge has ruled that his lawsuit—which alleges abridgment of due process—can proceed.
To be frank, the accusation is among the more dubious ones I've ever read about. Doe and his accuser, "Jane Roe," met during an impromptu gathering at a mutual friend's dorm on August 22, 2014. They first had sex that very night. They exchanged friendly text messages the next day, which were later provided as evidence in Doe's favor at his hearing, according to the judge's decision. They eventually had sex a second time.
Some days after that, Roe visited Doe in his room and discovered another woman sitting on his bed. Roe left immediately.
They had sex two more times after that—Roe was the initiator both times, according to the mutually agreed upon facts of the case.
But on November 6, 2014, the university informed Doe that someone had accused him of sexual misconduct. He did not immediately learn that his accuser was Roe, though he was barred from having any further contact with her. The university also moved him to another dorm against his will.
Doe was eventually permitted to review the charges against him, though he didn't actually receive a copy—nor was her permitted to make copies. All he could do was take notes as he read it.
Roe's residential advisor and Title IX coordinator had submitted reports agreeing with her contention that their very first sexual encounter wasn't consensual. This logic seems to rest on the disputed fact that Roe was drunk at the time.
At the actual hearing—which was attended by both Doe and Roe—Roe's roommate testified that she did not believe "Roe was drunk or otherwise incapacitated when she saw her shortly after her sexual encounter."
A three-person panel sided with Doe and cleared him of sexual misconduct. But Roe appealed.
At this point, the proceedings veered into Franz Kafka territory. Doe was barely able to review the new evidence against him, and was not allowed to even appear at the second hearing. The new evidence undermined Roe's roommate's testimony, but at no point was the roommate called upon to defend her original statements about Roe's lack of incapacitation. JMU went to great lengths to accommodate Roe—even granting her several extensions on submitting new evidence—while making it all but impossible for Doe to defend himself. As a result, he was found responsible for sexual misconduct and suspended from the university for five and a half years.
Given that this case appears to rest on whether or not Roe was drunk during the encounter, the accusation seems extremely dubious. Even if Roe had been drinking, mere intoxication does not render a person incapable of consenting to sex. It certainly looks like the university conflated intoxication with incapacitation, and that Roe ultimately failed to prove either state.
The decision by Judge Elizabeth Dillon does not take a stance on the merits of the accusation, of course. But it does allow Doe's lawsuit against JMU to proceed, and that's a good thing. As The Washington Examiner's Ashe Schow writes:
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.
This case illustrates the manifest unfairness of adjudicating sexual assault in such a manner. If Doe is guilty, then a rapist is free to enroll in a different university. But if he is innocent—my strong suspicion, based on the evidence—he was subjected to a wholly farcical second procedure in which his rights were trampled and his good name dragged through the mud. Rape is a crime, but violating an accused person's civil liberties is a crime, too. The Title IX process mandated by the federal government treats neither thing with the seriousness it deserves. [Related: Judge Sides with Gay Brandeis Student Guilty of 'Serious Sexual Transgression' for Kissing Sleeping Boyfriend]