An accused student from Johnson & Wales University (JWU) may be taking his case to trial after a judge denied the school summary judgement late last month.
I covered the lawsuit from the student, referred to in court documents as John Doe, at length last year. John had a sexual relationship with a woman referred to as Mary Smith, who also had a boyfriend (unbeknownst to John at the time), referred to as B.K.
Nearly a year after John and Mary’s final sexual encounter, B.K. (not Mary), reported that Mary had been sexually assaulted twice. Mary was asked about her boyfriend’s allegations and gave statements that contradicted the claims that she had been sexually assaulted. She said she and John were “friends with benefits.” On one night in October 2016, Mary said according to John’s lawsuit, that she was with John in his bed and the two had sex but it was rougher than usual. She got up but returned to John’s bed and spent the night with him.
John says this alleged sexual encounter never even happened, and his roommate – who was in the room at the time – said he didn’t hear anything. Another roommate said he saw Smith leaving the next morning and that she was in a good mood. A week later after this alleged sexual assault, Mary went back to John’s room to have sex with him again. She said it started consensually but eventually started “to hurt,” so they changed positions but it started hurting again. There is no indication that she told him she was in pain or asked him to stop. John said their sexual encounter was no different than their previous encounters, and Smith continued to like his social media posts afterward.
Nearly a year later, on June 1, 2017, Mary’s boyfriend, B.K., reported the alleged sexual assaults to JWU security. When Sgt. Robinson called Mary to ask about the assaults, she said “she did not want to talk about it at the moment.” When Robinson emailed her the next day, insisting she was “a victim of sexual assault” and that “we are here to support you,” Mary responded by saying she did not need any help.
Robinson contacted John, who denied the assaults.
Three months later, B.K. and Mary moved in together and decided to lodge a formal complaint against John. Mary now claimed she had been sexually assaulted and that it affected her life in one specific way — “her relationship with her boyfriend,” according to court documents.
John was “charged” with sexual assault and faced a campus hearing, where he was not allowed to see the “evidence” against him.
Mary was allowed to name B.K. as her advisor, which kept him from being questioned by John about his motivation or inconsistent statements.
John was expelled and sued.
Incredibly, the three campus “judges” who found John responsible all used the exact same phrases to claim they were impartial. Author and professor K.C. Johnson explained how “judges” Elizabeth Zmarlicki, Tim Brown, and Caitlin Codding all tried to claim they were fair in their decision with eerily similar affidavits that raise questions about their authenticity:
According to Zmarlicki, her training led her to approach the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” Codding said that she too approached the case “without any predisposition or bias,” allowing her to reach a decision with “an open mind.” What about Brown? He affirmed that he approached the case “without any predisposition or bias,” allowing him to reach a decision with “an open mind.” The three JWU employees did not explain how they came up with the exact same formulation to describe how they approached to the case. (Couldn’t one of them, at least, have used synonyms to make things less obvious?) The university’s position is that outsiders must trust that when these JWU employees said, using the exact same words, that they acted without bias and with open minds, they actually did so: JWU neither recorded nor kept a transcript of the hearing.
Zmarlicki testified that the panel asked “probative” questions of both John and Mary, but she didn’t say what any of those questions were. According to Codding, the panel asked “probative” questions of each student, but she, too, couldn’t identify any of those questions. And Brown? He recalled the panel asking “probative” questions of John and Mary—questions that his affidavit didn’t detail. Again, couldn’t one of the panelists have come up with another word to describe their questioning strategy?
How did each panelist reach the decision? Zmarlicki affirmed that despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” she made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” Codding, despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” And Brown? Despite having “considered carefully the fact that John Doe and Mary Smith admitted that they had engaged in consensual sexual intercourse before the two evenings at issue,” he made a “careful assessment” to conclude that John was nonetheless guilty—because John was “consistently vague” and Mary provided “specific details.” If this trio were JWU students, they would have been brought up on plagiarism charges.
Each of the panelists also said they deliberated for a “lengthy” period of time but could not recall the “precise duration” of such deliberation.
A previous ruling found that the only explanation for John’s expulsion was that “gender played a role.”
A recent ruling from a different judge noted that John’s attorney made the case that the proceeding was unfair based “virtually entirely on facts put forth or acknowledged by JWU itself,” including the suspiciously similar affidavits from the three panelists who determined John’s fate.