The College Fix

Alleged victim called her partner ‘too drunk to make a good lie out of shit’

Apparently consensual sex, intoxicated participants, bad advice from the university and employees, and damning text messages: A pattern is emerging in litigation by students accused of sexual assault against the universities that punished them.

Amherst College is the latest to be targeted by a punished student for his role in a sexual encounter, following similar allegations by accused men at Occidental College and Columbia University.

The May 29 lawsuit accuses Amherst of conducting a “grossly inadequate investigation” of John Doe and accuser “Sandra Jones,” depriving Doe of a competent adviser, withholding evidence during a hearing before the Sexual Misconduct Hearing Board, and harming Doe’s reputation.

What differentiates the Amherst suit from others, though, is that it portrays Doe as unable to give consent, and Jones as the initiator and the sober party.

And in a potentially explosive claim, the suit alleges the university has “targeted male students of color” like Doe since changing its sexual misconduct policy. Jones’ allegations were the first to be investigated under the new policy.

Incapacitated perpetrator?

According to the lawsuit, Doe and Jones engaged in oral sex one night in February 2012. Jones was the roommate of Doe’s girlfriend.

The hearing board found it “credible” that Doe was intoxicated to the point of being “blacked out” during the encounter.

Amherst’s policy on sexual misconduct says a sexual participant can be incapacitated – “a state beyond drunkenness or intoxication” – and experience a “blackout state” in which they “appear to be giving consent” but don’t have “conscious awareness” of what they are doing.

Because the policy distinguishes incapacitation from intoxication, its statement that “being intoxicated or impaired by drugs or alcohol is never an excuse for sexual misconduct” does not clearly contemplate that an incapacitated student could commit sexual assault.

Only 21 months after her encounter with Doe did Jones file a complaint with the university, after a member of the university’s Special Oversight Committee on Sexual Misconduct encouraged her to do so.

A residential staff member with the university also encouraged Jones to “blame” the sex on Doe, according to the suit. This mirrors allegations in the Occidental suit that a university employee convinced the female student to accuse her drunken-hookup partner of assault.

Ever-shifting accuser story

Doe was operating at a disadvantage to Jones throughout the investigation process, the suit claims.

On Nov. 1, 2013, the Title IX coordinator told Doe “he had less than a week to provide a response” as well as find an adviser, who could not argue on his behalf, only “guide” him.

During the investigation and hearing, the coordinator told Doe he could not speak about the allegations to anyone.

During Jones’ Nov. 11 interview, she allegedly changed her view of the sexual encounter with Doe, from “nonconsensual throughout” to “willingly” partially, and then claimed it became nonconsensual “on a break” during the act.

Additionally, Jones falsely told the investigator she “did not email, text or otherwise reduce what had happened” with Doe into writing, according to the suit.

Crucially, the investigator’s report “offered no conclusion as to whether John Doe had forced Sandra Jones to engage in oral sex” and found Doe’s account of his “total blackout” to be “consistent and credible,” the suit said.

Poor advice

The suit portrays everyone involved in the process as clueless about properly investigating incidents under Amherst’s new policy.

Doe’s adviser and a named defendant in the suit, Residence Life Director Torin Moore, had “little training or experience with the new procedures,” the suit said.

“Doe was never advised by any agent of the College that he could, or should, investigate the facts himself,” according to the suit. “He was never told he could, much less that he should, interview potential witnesses. On the contrary, he was led to believe that the policy of confidentiality prohibited him from doing so.”

For example, Doe was advised that he could not bring up Jones’ alleged second sexual encounter of the night with another student, which could have helped him establish that Jones consented to the initial act with Doe.

Salacious text messages

A series of text messages involving Jones was not entered into the record during the investigation – potentially exculpatory evidence, the suit claims.

After Doe left Jones’ room, she texted “ML,” flirting with him, according to texts reprinted in the suit.

She also started texting “DR,” a student residential staff member, where she appears to admit she consented to sex with Doe.

According to an affidavit by “EK,” Jones’ roommate and Doe’s girlfriend, it was common for Jones to talk about her “regular weekend practice meeting men and having brief sexual encounters with them.”

That mirrors allegations in the Columbia “Mattress Girl” case, in which accuser Emma Sulkowicz was herself accused of showing a pattern of flirting and engaging in consensual sex with Paul Nungesser, the student she accused of assaulting her.

High-speed railroading

Only one day after the hearing, the panel both decided Doe was guilty and expelled him from school and banned him from campus.

Further, although Doe had seven days to appeal, he was immediately forced out of campus housing, which led him to seek shelter in an off-campus fraternity house while he gathered his appeal.

Doe’s continued presence near the school became a controversy in itself. An article in the student-run AC Voice in January 2014 quoted two members of a group called It Happens Here regarding Doe’s expulsion.

“While I’m glad the College expelled the student, the issue of expulsion is tricky because if a school expels a rapist, the rapist will find their way elsewhere and the cycle is never broken,” Sonum Dixit told the AC Voice.

Dana Bolger, another member, said that Doe’s presence so close to campus could lead to PTSD symptoms should his accuser see him so close to school.

The lawsuit identifies “LR,” a “leading on-campus victim’s advocate” and member of the sexual-misconduct committee who “precipitated” Jones’ complaint against Doe, as one of the contributors behind AC Voice.

That likely refers to Liya Rechtman, identified as a committee member in its 2013 report and an author on AC Voice who has written about sexual assault. Rechtman did not respond to requests for comment.

A university spokesperson told The College Fix by email that Amherst stands by its decision regarding Doe.

“The College has put in place a process that is consistent with the requirements under Title IX and is fair to all parties…The College is confident that the hearing board followed the College’s process in making its decision,” the email said.

College Fix reporter Matt Lamb is a graduate student at the University of Nebraska-Omaha.

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