The College Fix

It gives ‘complete amnesty’ to rape accusers for breaking rules

At Indiana Wesleyan University, female students can freely break campus rules on sexual activity, coed dorm visits and even climbing through windows – as long as they accuse a male student of sexual assault.

That’s the narrative told in a Title IX discrimination lawsuit against the Christian institution by a male student on the verge of graduation, who found himself suspended for at least a year just three weeks after he was accused.

“Jane Roe” went to extraordinary lengths to demonstrate she consented to sexual activity with “John Doe,” her regular hookup partner, on the evening of Nov. 16, according to the federal complaint filed Thursday.

But after she unexpectedly accused him of sexual assault, IWU took her word as gospel and judged John guilty largely based on his admission that they had sex, he alleges.

“Throughout the process, John never had an opportunity to make arguments to a panel of decision-makers, participate in a hearing, prepare for and present a case, confront and cross-examine witnesses, obtain legal representation, submit written statements, procure expert testimony, or appeal on the basis that the decision was wrong,” the suit claims.

It emphasizes that the private university was put on notice a year before John’s case that its investigative procedures would not pass muster with the Trump administration’s proposed Title IX regulations. Those include a “single investigator” model that excludes live hearings and the opportunity to challenge witnesses.

Yet even under the Obama administration’s Title IX guidance, rescinded by the current administration in 2017, IWU’s behavior in the investigation would still be ruled a violation, John claims.

Jane had reason to falsely accuse John so that she herself would not be punished: IWU offers “complainants complete amnesty for violations of campus rules uncovered as part of a sexual misconduct investigation.”

The timing could not have been worse for John: He was on “concussion protocol” following a series of seizures that put him in the hospital for several days as the IWU investigation proceeded. He was also desperately trying to make up class time lost to this “serious and unexpected chronic medical condition,” the suit says.

Ban on lawyers in any capacity violates federal law

IWU put a Christian twist on its response to the Obama administration’s 2011 “Dear Colleague” letter on Title IX, creating “a campus culture that views all men as potential predators” and women as inherent victims of premarital sex, John claims.

Campus officials made clear through events in recent years, particularly an “It’s On Us National Week of Action” panel discussion in 2016, that they will automatically side with accusers, according to the suit.

That includes the sole investigator in John’s case, Dean of Students Andrew Parker, and Laura Bronsink, director of student conduct, who encouraged students to wear “It’s On Us” shirts to support “survivors of sexual assault.”

At another “It’s On Us” week event two years later, the university’s victim advocate liaison, Katti Sneed, told participants that a person who has “offended” has most likely either “done it a few times before or will continue to” in the future.

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In a foreshadowing of John’s case, the Obama administration found another Wesleyan college, Delaware’s Wesley College, responsible for violating Title IX by rushing through an investigation, the suit claims. Wesley didn’t give the accused student “a full opportunity to respond to the charges, rebut the allegations, or defend himself at his hearing,” going so far as to suspend him “the same day he was accused.”

The Trump administration also warned colleges to avoid Title IX setups where conflicts of interest are likely, such as the single investigator model used by Indiana Wesleyan, when it rescinded its predecessor’s Title IX guidance, John notes.

The forthcoming regulations not only ban the “decisionmaker” from also serving as Title IX coordinator or investigator, but also require colleges to give parties ample time to review investigative reports before hearings and give them written notices.

Going beyond other colleges that let students bring attorneys to proceedings but don’t let them actively participate, Indiana Wesleyan bans all “legal representation” in proceedings, the suit says. This explicitly violates the 2013 update to the Violence Against Women Act, which guarantees “the opportunity to be accompanied” to disciplinary meetings “by an advisor of their choice,” lawyer or not.

Jane’s violations – and possible motive to accuse John – not mentioned in final report

John and Jane had previously had sexual intercourse before their Nov. 16 encounter, which involved Jane “climbing up a rope ladder and crawling through the second floor window” to visit John in his room, according to the suit.

In addition to violating the premarital sex prohibition, Jane violated IWU’s prohibition on visiting the other sex in their dorms and climbing through windows.

They disputed the particulars of what happened that night. John claimed they started with foreplay in the living room before moving into the bedroom, where Jane’s “body language, participation, and the fact that she followed John into his bedroom” showed she was consenting to sex. Jane said all the activity happened in the bedroom and she told him “no” and “stop” several times.

Two days later a university employee heard that “Jane was telling her friends that another student raped her” and reported it. The next day she made a “verbal, in-person report of sexual assault” to Parker, the dean of students, who issued a no-contact order against John before speaking with him.

John accused Parker of divulging details of his medical records in the dean’s interviews with witnesses, asking questions that “evidenced familiarity with specifics of his treatment and medication” without John’s authorization.

The investigation took place while John was already making up class work from the two to three weeks he missed because of the seizures, and continued through finals week, when he was also distracted with schoolwork, the suit says. Despite his “physical condition,” John met Parker Dec. 9 without an advisor.

Parker’s judgment a few days later made plain that the “key similarities” in John and Jane’s accounts were the key to finding John guilty of sexual assault, or sexual contact without “full and free consent.” Those similarities boil down to “the parties’ agreement that sexual intercourse occurred,” with no consideration for the “stark disagreement” about the rest of the night.

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The final report “made no mention whatsoever” of Jane’s undisputed campus violations of sex, coed dorm visit and window rules, John claims. Parker gave no indication he investigated her behavior and how it might shed light on her credibility, and did not state whether he had granted her “amnesty” in return for accusing John.

In another bout of bad timing, John was at the airport going home to California for Christmas break when Parker emailed to let him know he had to affirmatively request the case file so he could request a “case review” of the verdict. He had about one day to review the materials before the deadline to request a review.

John documented a litany of problems with the investigation:

[H]e was never invited to provide a written statement or received a written statement from Jane or any witness; that Dean Parker’s interview notes only contained information that Dean Parker chose to document; that statements by John’s roommate were mischaracterized and that the roommate would submit a statement bolstering John’s story and undermining Jane’s; that Dean Parker ignored Jane’s entry into John’s room via rope ladder, ignored her texts to him after the encounter, and ignored evidence suggesting that a bruise she alleges he caused actually came from slipping on the ladder.

Parker also selectively cited the student handbook’s definition of consent, leaving out that consent can be conveyed through “voluntary actions” even if a person does not give verbal consent, John argued. Instead, the dean relied on a section that says consent can’t be inferred from “silence.”

In an allegation that could prove problematic for IWU under both Obama and Trump Title IX guidelines, John said the handbook didn’t even tell him the evidence standard. Parker’s report also assumed John’s seizure problems were “making him angry and aggressive,” and the dean didn’t let John explain his condition.

Roommate’s claim that his statement was botched is judged irrelevant

The official responsible for the case review, Vice President for Life Calling Brandon Hill, ignored the many “factual discrepancies” between the parties’ accounts, according to the suit. Those included whether they had to move furniture for the living room foreplay, where Jane removed her pants and the effect of John’s medication.

Neither these, nor John’s roommate’s claim that his statement was mischaracterized in Parker’s report, could “considerably affect the outcome now,” Hill wrote. He allegedly said, inexplicably, that the university gave “equal weight” to both parties’ credibility.

“In effect, IWU shifted the burden of proof onto John to prove he obtained Jane’s consent,” violating the forthcoming Title IX regulations from the Trump administration, the suit argues. “IWU’s flawed, rushed, inquisitorial process allowed a single university official to reach a decision motivated by gender bias that ignored evidence supporting John’s version of events and undermining Jane’s credibility.”

John is functionally stuck unless a court intervenes, he argues. A member of the baseball team when he was accused, “his baseball career is over” and he probably can’t attend a different college for the next year while he’s suspended. This puts him “at serious risk of losing future employment opportunities.”

IWU violated Title IX by ignoring John’s evidence, giving him no chance to challenge the evidence against him and acting against him before an interview, the suit claims. “The IWU official involved appears simply to have chosen to believe Jane” – and ignore her documented violations – “because she is a woman and to disbelieve John because he is a man.”

The university violated the common law obligation of “basic fairness” through the rushed and one-sided process, and relatedly, the “covenant of good faith and fair dealing” contractually obligated to John as its student.

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