Due Process

Judge Upbraids UConn for Unfair Investigation

The university disallowed the testimony of witnesses who would have undermined the accuser's credibility.

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The University of Connecticut expelled a male student for an allegedly nonconsensual sexual encounter with a female student. But now a judge has issued a temporary restraining order to halt the student's removal, on the grounds that the university's investigation was wildly unfair.

The Foundation for Individual Rights in Education (FIRE) has obtained a transcript of the court proceeding, which took place on January 23. As it shows, U.S. District Judge Michael Shea was especially perturbed that UConn did not interview key witnesses who would have undermined the accuser's credibility.

"I am troubled by aspects of this procedure," said Shea, "and in particular I think the thing that troubles me the most is the fact that the hearing body refuses to hear from four of the plaintiff's witnesses."

None of the witnesses saw the encounter itself, which took place in April 2019 in a dorm room and involved only the male and female students. But prior to the disputed encounter, the two students—identified in the lawsuit as John Doe and Jane Roe—rode in a car together with several other people. Jane sat on John's lap, and he claims that she spent the ride grinding on him.

That Jane had initiated activity at this stage of the night does not mean she consented later, of course. But importantly, she denied to investigators that the amorous encounter in the car had occurred at all. The other people in the car contradicted that—they heard, and could feel, her rubbing against John—and were willing to speak to this at the university's hearing, but UConn denied them, claiming they did not have relevant testimony.

The judge rightly disagreed. Since there were no witnesses to the encounter itself, adjudicators must considerable the relative credibility of the two students. If Jane lied about her level of sexual interest in John immediately prior to the encounter, that raises the question of whether she was lying about what happened later. Ignoring witnesses who could speak to this was thus unfair.

The university's lawyer attempted to argue that the witnesses were not allowed to speak at the hearing because they didn't have direct evidence. Shea responded: "Oh, come on. I thought you were going to be serious about this."

Later, the judge asked UConn's lawyers to explain how the university's actions—disallowing John from questioning Jane's supportive witnesses—could possibly be consistent with due process.

"Given the severity of the sanction here, how is it in compliance with due process that he's not allowed to question, or have somebody question, at least statements that were being relied on by witnesses who—excuse me—by the hearing officers by witnesses who weren't even present?" asked Shea.

FIRE's Samantha Harris spoke with John's attorney, who said the university's ambivalence toward any notion of fairness for the accused was obvious throughout the proceedings.

In any case, the ruling is a great step in the right direction. Harris notes that while the First and Sixth Circuit Courts have issued decisions that affirm the right of accused students to conduct cross-examination when universities conduct such trials, the relevant case law is "relatively underdeveloped" in the Second Circuit.

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  1. Until there is consistent and painful punishment meted out to university administrations, this will continue.

  2. “Oh, come on. I thought you were going to be serious about this.”

    SMACK!

    1. That was my favorite part of the article.

  3. Once again, clearly colleges should not be the judges, juries, and prosecutors of criminal misconduct.

    If the victim has a case, go to the District Attorney’s office.

    1. This. If an “allegedly nonconsensual sexual encounter” occurs in a grocery, do the store managers get to officiate the case?

      1. Of course they do. If there’s an allegation of misconduct in a store the store can hear any evidence and take action.

        1. Well, sure. But have the First and Sixth Circuit Courts issued decisions that affirm the right of accused employees to conduct cross-examination when grocery stores conduct such trials?

        2. There are a couple important differences.

          1. Stores are private entities not subject to the First Amendment and other rules that bind the government. Publicly-funded universities, on the other hand, are considered an arm of the government and are held to a higher standard.

          2 and more importantly. The store’s actions following the investigation are limited to:
          a. if customer, banning the customer from that particular store, something that is not considered a major infringement on the customer’s life.
          b. if employee, firing – but since employment-at-will means the employee could be fired anyway for any reason or none, that’s not an incremental life infringement either.

          I fully support the right of universities to conduct investigations within their scope of expertise. Plagiarism or cheating on an exam are the kinds of things they can and should investigate. But when there is an allegation of an actual crime, it’s time to call in the real police and real judges. University-based kangaroo courts should have no role.

          1. 2 and more importantly. The store’s actions following the investigation are limited to:

            Forcibly entering you house and confiscating all food you purchased at that store, while retroactively denying you the nutritive value of food you purchased from that store over the last few semesters. While putting a black mark on your grocery transcript, reducing the likelihood of you being able to purchase food at other grocery stores, and forcing you to shop at Dollar General.

          2. I agree, although too often it is a case of calling in the real keystone cops and real kangaroo courts.

            Sigh…

    2. Just like with priests and claims of sexual molestation, we should pass laws that say colleges are required to report any claims of rape to the police.

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  5. Thank you, FIRE, for continuing to fight for due process. It’s good for accusers and the accused alike.

    1. FIRE didn’t do shit, other than reporting on this case.

      The Foundation for Individual Rights in Education (FIRE) has obtained a transcript of the court proceeding

      I’m not knocking what they do but don’t credit them for what they don’t.

  6. Simple, your Honor. We punish all male students by rote action.

  7. This is a perfect example of how a little bit of a good idea is exploited by those on the left to further their agenda.
    It used to be
    “she was asking for it, dressed all sexy like that. She even smiled at me. Of course I fucked her. What red-blooded American wouldn’t. When she said “no” she really meant “yes”.”
    Of course that was wrong. But, now the left has taken the correction to that to mean that if you don’t completely believe the woman in all aspects of her story, than you support rape. And if you dare even suggest that the defendant can call into question her credibility of the accuser, why you are worse than that actual rapist.

    1. It’s almost like the goal of feminism isn’t equality at all, but the furtherance of women.

      I know. Sexist, right?

    2. And the other irony is, a man’s only real chance for defending himself (assuming he didn’t actually rape the woman) under such BS tenets would be to film the encounter, which would then be “pornography”, and the feminazis are against that too, even when the woman is fully on board with it.

      Can you say “Catch-22?”

      Rapists should have their nuts cut off and stuffed down their throats. But this new paradigm where every man is a rapist is just beyond crap.

  8. As it shows, U.S. District Judge Michael Shea was especially perturbed that UConn did not interview key witnesses who would have undermined the accuser’s credibility.

    Don’t pretend like you weren’t trying to draw parallels Robby.

  9. What could be more fair than blind acceptance of the accuser’s allegations? Assuming of course the the accused is male, and the accuser female.
    Oh, wait. Those pre-history designations can’t be used anymore, right? So what’s a poor (sarc) diversity / gender discriminator / guilt assigner supposed to do at a university? Teach?

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  11. I guess UConn would have been in a pickle if the accused claimed they were a she. What would they do?

    1. Simple. Just consult the daily edition of the victimhood hierarchy and whoever is more marginalized wins.

  12. “That Jane had initiated activity at this stage of the night does not mean she consented later, of course.”

    But more importantly it appears that Jane spent the entire car ride rubbing John’s penis without having obtained either his prior, ongoing, or affirmative consent. That is sexual assault, and the university’s insistence on punishing a survivor in a one-sided, sexist proceeding is despicable and should result in sanctions.

    #knowyourIX

  13. This is probably one of the worst cases of malfeasance I’ve read about yet. They did everything they could to avoid looking at the facts of this case.

  14. As with many similar stories often involving male college athletes and their indifferent coaches, I am unclear why the university is adjudicating this alleged crime instead of our state court system. If a criminal sexual offense occurred, presumably the victim would contact the police and seek justice through normal legal channels? If my daughter were the victim of such an attack, I would absolutely not seek justice through a coaching staff or some university kangaroo court, but normal channels of law enforcement and justice.

    1. Because then they couldn’t punish people for not having affirmative consent instead of a lack of no/stop, and the courts can only punish for actual incapacitation while the university standard is one drop of alcohol.

  15. What is important to narrow in on here: Jane’s witness, who was not present, was allowed to testify. John’s was not. The judge caught that, rightfully so.

  16. Maybe the pendulum is slowly swinging back to normal with this judge’s decision.

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