Title IX

Amherst Student Expelled for Sexual Misconduct Can't Defend Himself—It Would 'Impose Psychological Trauma' on Accuser

John Doe says there's evidence his female accuser assaulted him. But a judge won't make her cooperate.


David Emmerman

Remember Amherst College student "John Doe," who was expelled for sexual misconduct, even though he had good reason to believe that his accuser had actually assaulted him? A judge recently blocked Doe's attempt to subpoena his female accuser's text messages on grounds that re-litigating the matter "would impose emotional and psychological trauma" on her.

Consider the implications of this decision. According to Seattle District Judge James Robart, a student who believes Amherst violated his due process rights, wrongfully expelled him, and ignored subsequent evidence that his accuser, "Sandra Jones," was the actual violator of the college's sexual misconduct policies, does not deserve the opportunity to make his case because someone else's feelings are more important.

Whatever happened to believing the victim?

The incident in question took place years ago, during the late night / early morning hours of February 4-5, 2012. Jones was Doe's girlfriend's roommate at the time. Jones went to Doe's dorm room and sexual activity ensued: Jones performed oral sex on Doe.

But Doe was blackout drunk at the time—a detail that Amherst administrators deemed "credible," on subsequent review. Of course, it's questionable whether a blackout drunk student can actually provide the level of consent that Amherst's sexual misconduct policy requires.

Other factors cast doubt on the idea that Jones was the victim and Doe the perpetrator. After leaving Doe's dorm room, Jones texted another male student and asked him to come to her dorm room for sex. She also texted a residential advisor about her "stupid" decision to engage in sexual activity with her roommate's boyfriend. In these text messages, Jones admitted that she was "not an innocent bystander." She also complained about how long it was taking this second male student to do anything sexual with her. She did not file a complaint against Doe until two years later.

It's certainly possible that Jones was forced by Doe to give him oral sex without her consent, left the encounter with a fervent desire for another hookup, mischaracterized her own level of responsibility in a message to the RA, and didn't realize she had been sexually assaulted for another two years (after befriending a number of victims' advocates). It just doesn't seem like the most probable explanation for what happened. But, based on a preponderance of the evidence presented to Amherst administrators, Doe was expelled.

Keep in mind that administrators never reviewed the text messages, and when Doe asked the administration to re-open the case in light of this error, Amherst refused. Doe was given just seven days to appeal the finding of responsibility, but he didn't find out about the texts until months later.

Doe has filed suit against Amherst for mistreating him. He has not sued Jones, although maybe he should have. As part of his case against Amherst, Doe's legal team subpoenaed Jones to testify at the trial and turn over certain documents and records of statements she made about the alleged assault. Jones refused to cooperate.

And, according to Judge Robart's ruling, she doesn't have to:

An in-person deposition of boundless scope would impose a substantial burden on Ms. Jones. (Subpoena at 1; see also Resp. at 7 ("Until a deposition begins, it is very difficult to know where it will lead and impossible to predict all the topics that may be explored with a witness.").) The deposition would force Ms. Jones to relive a night in which she asserts Mr. Doe sexually assaulted her. (See, e.g., Clune Decl. ¶ 3, Ex. 4; Resp. at 6-7.) It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured. (Id. ¶ 3, Ex. 5 at 11-12; Am. Compl. ¶¶ 54, 56.) It takes no leap of logic to reason that a live deposition would impose emotional and psychological trauma upon Ms. Jones.

Robart essentially argues that since Doe isn't suing Jones directly, he has no right to involve her in his case against Amherst. He also argues that Amherst is in possession of the relevant documents, and thus Jones's involvement is unnecessary. But, as KC Johnson explains, that isn't quite right:

Yet much of the requested material couldn't come from Amherst employees. For instance, a critical aspect of the accused student's case is the basic unfairness of an adjudication that went forward under the false premise that A.S. had not reduced anything about the incident to writing. So the subpoena asked A.S. for "all communications, including text messages or emails, between you and anyone else on February 5, 2012." The only conceivable source of this material would be A.S., not any Amherst employees.

Johnson notes that this decision might actually represent a setback for victims' rights organizations, since it incentivizes accused students to sue their accusers in addition to their colleges:

Ironically, whatever minor assistance the ruling might have to frustrating the Amherst student's quest for justice, the victory might be a Pyrrhic one for the accusers' rights movement as a whole. Judge Robart sent a message that the only way an accused student can obtain relevant evidence involving his accuser is—as a handful of accused students have done—to sue his accuser as well as the college. Expect more accusers to be added to future lawsuits as a result.

Johnson is a co-author of The Campus Rape Frenzy, a new book about the death of due process on college campuses. He calls the Amherst case "perhaps the most egregiously unfair" one he has covered. Who could disagree?