In the fifth consecutive decision on behalf of due process rights for an accused student (joining Xavier, St. Joe’s, Duke, and Marlboro College), Judge William Lawrence, a George W. Bush appointee, issued a preliminary injunction preventing DePauw University from proceeding with a two-semester suspension for sexual assault meted out to a student named Ben King.
Judge Lawrence’s decision was unusually comprehensive, but DePauw’s handling of this case was unusually bad. You can read King’s filing here; DePauw’s response here; and Judge Lawrence’s decision here.
No Memory of the Event
By now, the specifics of the DePauw case will sound familiar. Last December, King attended a party of around 30 students, most of whom (including the accuser and the accused) appear to have had a lot to drink. The two went back to King’s room, where some type of sexual contact (but not intercourse) occurred. According to King, he asked the accuser if she consented to sexual activity, and she said yes. (The accuser says that she doesn’t remember one way or the other.) Two days later, the accuser spoke to DePauw’s Title IX coordinator, claiming the sexual contact was non-voluntary. The coordinator interviewed King. After no action, nearly five weeks later the accuser said she wanted to pursue charges.
DePauw has an agreement that it forwards the results of all campus sexual assault investigations to the local prosecutor. “Not surprisingly,” Judge Lawrence noted, under these terms King declined to be interviewed by the campus investigator after being warned of his Miranda rights. Consider this (quite unusual) practice for a moment: the university effectively functions as a local police force, but without any of the due process protections or investigative training associated with a police inquiry.
The university’s “investigation” consisted of interviews with the accuser and party witnesses recommended by the accuser (several of her sorority sisters). Reflecting what it termed its “even-handed approach” to campus claims of sexual assault, DePauw defended its decision to confine its inquiry in this manner, since interviewing all the people at the party, including neutral students, would not have been “an efficient use of limited resources.”
As often occurs in such cases, the DePauw inquiry revolved around the accuser’s level of intoxication. One of the accuser’s roommates said that the accuser said she was “fine” and “did not sound too drunk.” Another roommate recalled that she “seemed very coherent and [was] speaking clearly” and “was not showing any typical signs of intoxication.” Three other witnesses, members of the fraternity, said they didn’t know the accuser sufficiently to determine her level of intoxication.
But a sorority sister suggested that the accuser was behaving atypically. How so? She was praising her sorority, though typically she “wants everyone to make their own decision” about the merits of which sorority to choose. (How King would have known this behavior indicated intoxication isn’t clear.) And a second student told the campus investigator that the accuser was “very intoxicated.”
All four of these witnesses spoke to an investigator between 47 and 54 days after the party in question. It seems highly unlikely that the typical college student can make an intoxication diagnosis about someone else seven or eight weeks after a party at which each of these students, too, was consuming alcohol.
A Married Couple Involved
DePauw nonetheless moved forward with the case. The hearing occurred 12 days after the investigation ended. At the hearing, consistent with DePauw’s policies, King was denied the right to an attorney—so as to avoid “undue judicialization” of university affairs. Meanwhile, the accuser’s hearing “advocate” was married to the school’s Title IX coordinator—a figure who supplied a supposedly neutral summary of the case at the hearing, but instead appears to have impeached King. DePauw deemed the relationship between the accuser’s advocate and a supposedly neutral key factual witness “immaterial” to the outcome of the case. After all, the school breezily mused, “in a university setting, prior contact among the faculty and students is likely”—even if, of course, marriage between two such parties is not.
In an unintentional commentary on why academics should not conduct criminal investigations, the hearing appears to have consisted mostly of DePauw’s panel asking witnesses how drunk they were (on a scale of 1 to 10) and how drunk the accuser was (on a scale of 1 to 10). Three of the four key witnesses were consistent with their written testimony, but the fourth (the accuser’s roommate who had said she sounded “fine” and “did not sound too drunk”) now rated the accuser as an 8-level of intoxication. “But,” she added, “because I was intoxicated as well, I might have not known for sure.” The record gives no indication of the hearing panel questioning this student on why her panel testimony differed from her written statement.
King did testify during the hearing. Demonstrating the impossibility of proving “affirmative consent,” he said that the accuser verbally consented—repeatedly—to having sexual contact. He nonetheless was found guilty and expelled, on grounds that the accuser was intoxicated and could not have given consent. On appeal, the university reduced the penalty to a two-semester suspension with possible re-admission, provided King demonstrated an “understanding of the issues raised by his interaction with” the accuser.
King then sued. Incredibly, DePauw cited “academic freedom” as justification for both its actions and as a reason for the court not to make an “unwarranted imposition” into university affairs. Pointing to the White House task force report, the university also argued that it was appropriate to give the accuser “some control” over the investigation (ostensibly for privacy reasons).
The Preliminary Injunction
In line with the ruling in the St. Joe’s case, Judge Lawrence rejected King’s Title IX claim, arguing (unpersuasively, given the gender politics of this issue nationally) that DePauw didn’t discriminate against King on basis of his gender. But Judge Lawrence nonetheless granted a preliminary injunction, arguing that DePauw violated its contract (the university bulletin) with King. Indeed, the judge concluded, the university deemed King a rapist even though there was “very little evidence that supports this conclusion.”
Judge Lawrence was particularly skeptical of how DePauw (and, though he probably didn’t know it, most universities) defined intoxication for the purpose of branding students a rapist. He reasoned that the accuser probably was intoxicated. But King (who didn’t know the accuser that well) had no way of knowing that she was intoxicated, since her behavior (however atypical for her) was hardly atypical of a college student at a party. In any event, the fact that the accuser was intoxicated was (or at least should have been) irrelevant to the outcome. As Judge Lawrence observed, the university’s sexual assault policy bars sexual activity with someone who is incapacitated, not someone who is intoxicated, even enough “to have lost her normal inhibitions.” (Of course, if DePauw wants to change its definition of rape, it can do so, but not retroactively to punish King.) Indeed, DePauw’s policy goes out of its way to deem incapacitation “an important and specific concept.” By contrast, the policy doesn’t mention the word “intoxication.”
Lawrence’s ruling raised a number of other procedural matters that seemed to lean in King’s favor. The very substantial delay in initiating the inquiry, especially given the sole subject of the hearing (the accuser’s intoxication level), meant that for “most of the witnesses the night in question was likely just another Friday night on campus, so there was little reason to remember specific details.” DePauw, for reasons the school didn’t explain, denied King’s request to delay the hearing a week to better prepare his defense, even as the school allowed the accuser to wait more than a month to file charges. Nor did the school worry about the conflict of interest between the Title IX coordinator and her spouse, the curious “ranking-system” questioning of the student witnesses on intoxication level, or the decision to focus only on witnesses supplied by the accuser. Indeed, in oral argument, the school’s attorney said the university was “proud” of the way it handled the inquiry in this case. Prospective DePauw students should take notice.
Finally, Judge Lawrence concluded that the preliminary injunction would serve the public interest, since the public has an interest in seeing DePauw’s policies applied fairly to both complainants and [emphasis added] respondents in disciplinary actions.”
The university, obviously, disagrees with this interpretation of fairness.