Schools keep the materials they use to train investigators who handle accusations of sexual assault and harassment under lock and key. Attorneys have been trying to get these materials for years, with limited success.
Whenever the training materials are made public, it’s obvious how the school’s reach absurd decisions against male students accused of sexual misconduct — the training heavily biases administrators in favor of the accuser. A blueprint for the University of Texas system included the incredibly misleading claim that just 2% to 10% of accusations are false (implying that investigators are probably right to assume an accuser’s story). That blueprint also instructed campus police to conduct their investigation in such a way to “anticipate” and “counter” likely defense strategies, including the suggestion that officers only take the accuser’s statement once to avoid documenting inconsistencies that could be used by the defense.
Now a judge has questioned such training after materials were released to a male student at the University of Mississippi who was expelled for allegedly sexually assaulting a female student.
Chief U.S. District Judge Daniel P. Jordan III, a President George W. Bush appointee, allowed the male student’s (referred to as John Doe) lawsuit to survive a motion to dismiss from the school on gender bias and due process grounds. Jordan questioned the training that investigators received and how it influenced their decision against John.
John had quoted the training materials in his lawsuit, specifically, sections that advised a “lack of protest or resistance does not constitute consent, nor does silence”; that “victims … lie about anything that casts doubt on their account of the event,” including withholding facts and questioning their own victimhood; and suggests that such lies should be considered a side effect of an assault.
“Taken as a whole, the Court concludes that Doe has stated a plausible claim,” Jordan wrote in his 23-page opinion. “This is a he-said/she-said case, yet there seems to have been an assumption under [UMiss Title IX Coordinator Honey] Ussery’s training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered.”
This, along with other distressing evidence, allowed Jordan to uphold John’s claims that he was discriminated against based on his gender (since accused students are almost universally men) – something prohibited by the statute referred to colloquially as Title IX.
Judge Jordan also questioned whether the preponderance of evidence standard mandated by Obama-era Title IX guidance (which allows administrators to be just 50.01% sure an assault happened) violates the due process rights of the accused.
“But Judge Edith Jones made a forceful argument in her Plummer dissent that hearings on alleged sexual misconduct are quasi criminal and have long-lasting impacts on the accused,” Jordan wrote. “She therefore advocated for a more burdensome standard of review, noting that ‘[e]levating the standard of proof to clear and convincing, a rung below the criminal burden, would maximize the accuracy of factfinding.’”
This case arises from a March 30, 2017 encounter between John and a woman identified as Jane Roe. John claims the sex was consensual, Jane claims it was not, and reported the incident the very next day. At first she didn’t want to pursue any charges, but two months later, she filed an official report against John.
When Ussery investigated the complaint and wrote up a report, she excluded exculpatory evidence, like Jane’s initial statement saying she didn’t think she was raped, but that her friends convinced her to report. It ignored that Jane allegedly told John that him touching her felt good on multiple occasions, not just once. The report also claimed John said Jane “adjusted his pants” when in reality he said Jane pulled down his pants, indicating consent. The report didn’t “accurately reflect,” according to John, his statement that Jane had told him she wanted to have sex with him the night of the alleged assault. Ussery’s report also didn’t include forensic evidence obtained from Jane, which found no physical injuries. Ussery didn’t even interview the dorm administrator or security personnel who saw John and Jane the night of the encounter. John also believes Ussery incorrectly summarized the statements from witnesses.
John’s date to his fraternity formal testified that Ussery suggested that if she supported John, it “would be considered retaliation and could get her in trouble,” according to John’s lawsuit.
Commenting on the judge’s decision, attorney Justin Dillon, who has represented dozens of wrongly accused students, tweeted:
Indeed, colleges appear no longer able to hide their biased training materials, which should lead to a change in policies across the country that are more fair.