Last September, I reported on The Torch that while the Department of Education’s Office for Civil Rights was investigating scores of its peers for potential Title IX violations against complainants of sexual assault, OCR had begun investigating a claim that Brandeis University had punished a student found responsible for sexual assault without a fair hearing. Now that student—under the name “John Doe”—has filed a lawsuit against Brandeis alleging that it breached its contractual obligations to him, deprived him of even the most basic elements of due process, and defamed him. By implementing a seriously flawed procedure and abandoning common sense in order to discipline Doe, Brandeis effectively set a standard that makes nearly everyone who’s ever been in a relationship guilty of sexual assault.
Brooklyn College professor KC Johnson reviewed the complaint over at Minding the Campus on Sunday, noting what makes this case stand out from others and why the details of Doe’s allegations are especially worrying. Perhaps most noteworthy, in contrast to the common scenario involving one night and two intoxicated students, the campus charges against Doe were initiated after the conclusion of a “21-month sexually active, exclusive dating relationship” between Doe and his ex-boyfriend J.C., according to the complaint.
Many of Brandeis’s alleged lack of procedural safeguards for Doe may sound familiar to Torch readers. Brandeis inexplicably subjected Doe to an investigation by a single “Special Examiner” rather than handling the case through its standard hearing process. Doe’s complaint describes the deficiencies of Brandeis’s single-investigator model:
The accused never has the opportunity to confront the accuser, question the witnesses, or present a defense at a hearing. Because there is no hearing, the accused never knows what the accuser (or the accuser’s witnesses) actually have said, but only knows what the Special Examiner chooses to tell him. In John’s case, he was not told orally or in writing the factual bases for the charges against him at any time before or during the three months of the Special Examiner’s investigation; instead, he had to try to piece together what in particular he was accused of doing from the questions posed to him by the Special Examiner.
Of course, how could anyone defend themselves against charges without knowing precisely what those charges are?
Doe’s complaint alleges that the Special Examiner also misapplied Brandeis’s definition of “consent” as written in its handbook: “The Special Examiner effectively required a verbal ‘yes’ by ignoring the actions surrounding the act indicating consent.” As a result, Doe was found to have committed sexual assault by, for example, waking J.C. up with a kiss—during their relationship, and as J.C. had allegedly done to Doe as well. Doe further claims in his complaint:
The Special Examiner also found that, on those occasions when John looked at J.C.’s naked body when the two shared the dorm’s same-sex communal bathrooms, that act was an invasion of personal privacy, despite the fact that the two were in an intimate relationship, routinely used communal facilities together, and J.C. engaged in the same conduct.
This departure from reason should be troubling to us all. If a college student is culpable for looking at his boyfriend, then the vast majority of the campus community can be found guilty of a code of conduct violation and punished without any opportunity approaching a fair hearing.
In his article, Johnson explains the harm Doe has suffered—even though Brandeis chose not to expel him for his supposed violations:
Despite having branded the accused a rapist, Brandeis (in what could only be an implicit recognition of the flimsy nature of the allegations) punished lightly, through a Disciplinary Warning, with no suspension. But as the complaint points out, this was nonetheless a life-altering decision: “[The accused] will now have to disclose, and defend himself against, his deeply blemished University record and reputation to every law school and professional graduate school to which he applies, to his political colleagues, to prospective employers and, should he run for public office, to the electorate.” And he certainly can’t count on anyone he has to tell understanding the strange nature of Brandeis’ process and definition of sexual assault. Indeed, according to the complaint, the accused already lost an internship and job offers as a result of Brandeis’ ruling, which was leaked to his potential employers.