Hit & Run

Judge Sides with Brown U. Student Suspended for Sexual Assault, Calls Campus Activists 'Woefully Ignorant'

Female student accused a male student of assaulting her-a full year later, after Brown changed the definition of consent.

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Brown
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A Brown University student who was suspended for sexual misconduct will get another chance to prove his innocence before a university panel, according to a judge's decision.

The accusation against the male student, "John Doe," stemmed from a sexual encounter with "Ann Roe" on November 10, 2014. But Roe did not file a complaint against Doe until October 30, 2015—nearly a full year after the incident. Over the course of that year, Brown changed its sexual misconduct policy, and Doe was eventually found responsible under the new consent standard—a standard that hadn't yet existed on the night that he and Roe engaged in sexual activity.

On Wednesday, Doe prevailed in his lawsuit against Brown. Rhode Island District Court Judge William E. Smith agreed with Doe that the university had held him to an impossibly high standard: it found him guilty of sexual assault because he had "manipulated" Roe, even though the 2014 sexual misconduct policy did not explicitly outlaw manipulation.

"When combined with other errors set forth herein, it is clear that Doe's contract rights were violated," wrote Smith in his decision.

That doesn't mean that Doe didn't assault Roe—a subsequent university rape tribunal could still determine that he behaved improperly. But Brown is obligated to consider the sexual consent definitions it had in place in 2014, instead of the new, stricter definitions it codified after the alleged assault.

The judge reserved some of his harshest criticisms for the (presumably left-leaning) campus activists who sent him angry emails demanding that he rule against Doe:

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.

The encounter between Doe and Roe took place in an ostensibly public part of the student center that was secluded and hidden from view. Doe and Roe had earlier exchanged sexually charged text messages that suggest—to my mind, at least—both parties had every intention of sleeping together. According to Roe, they sat down to watch a movie together in the student center. Doe quickly escalated things. Roe initially objected, but eventually felt like she had no choice but to satisfy him with oral sex.

Doe disagreed vehemently with this version of events, according to the judge's decision. He said that Roe climbed on top of him, and repeatedly turned the lights off (they kept coming back on, I guess) of her own volition. She had every opportunity to leave, if she had wanted to, he said.

The incident was investigated by a single individual, lawyer Djuna Perkins, who prepared a report and then submitted it to a three-person panel. According to the investigation, one witness claimed that Roe had subsequently described the encounter as "really hot" and suggested that she had wished they had done more than just oral sex.

But in the many, many months between the encounter and the investigation, Brown had revised its sexual misconduct policy. While the initial policy did not properly define sexual assault as anything other than "forced sex," the new policy included "manipulation" as a basis for the invalidation of consent. Manipulation, of course, encompasses a wide range of behavior—not all of them violent or coercive in nature. (If a man promises to be faithful to his girlfriend and then they have sex, even though he has no intention of keeping that promise, it seems obvious that he has been manipulative, but not necessarily abusive.)

But, as Judge William's decision determined, the panel should have been considering the policy that existed at the time of the encounter rather than the new "manipulation" policy. Unfortunately, investigator Perkins confused the issue by making a copy of the new policy available for some of the people involved in reaching a guilty verdict.

The judge also suggested that Brown's sexual misconduct training might have given panelists bad advice on how to approach the case. One panelist refused to consider Roe's post-encounter statements as evidence that she might be lying, because Brown's training module had taught her to disregard inconsistencies in the complainant's stories—such inconsistencies could be evidence of a victim's trauma, according to the training.

This training apparently encouraged the panelist to neglect her duty to consider all the facts, according to the judge's decision.

"It appears what happened here was that a training presentation was given that resulted in at least one panelist completely disregarding an entire category of evidence," according to the decision.

Doe was eventually suspended from campus until Roe's graduation. Both parties appealed the decision: Doe wanted his name cleared, and Roe wanted outright expulsion.

The judge's decision does not render judgment on the incident in question: rather, it allows Doe to be re-tried by Brown under a more favorable—and just—set of circumstances.

Of course, we may never know exactly what happened between Doe and Roe. Personally, I am baffled that the panel could possible say his guilt is more likely than not, given the text messages and the witness testimony., which clearly suggest willingness of her part. In any case, I'm glad the judge recognized that campus sexual assault disputes should be resolved by fair-minded individuals on the basis of facts, rather than by ideologues in service of the believe all victims mantra.