Last year, a male Indiana Wesleyan University student was accused of rape by a woman who was trying to get incomplete grades for her fall semester. On December 11, 2019, while making her claim and trying to change her grades, she said she had been tested for STDs and found out she was HIV-positive.
A note from IWU Associate Professor Anneke Stasson included in the Incident Reporting From said, “It makes me really worried to think that the guy who gave her HIV is still on this campus.”
Thus began an ordeal that violated the male accused student’s due process rights and expelled him from campus with allowing him to defend himself. The male student, referred to in court documents as John Doe, sued IWU and was granted expedited discovery for the case. During that discovery phase, John learned of his accuser’s (referred to as Jane Roe) HIV claim. John and his attorneys filed a request for an emergency temporary restraining order (TRO) to force IWU to contact Jane and verify whether her claim about being HIV-positive was true, because if it is, John is in serious risk.
John’s attorneys said they were unaware of Jane’s assertion until a few days before they filed the April 3 TRO request, even though IWU knew that it was possible that Jane had exposed John to HIV months before discovery.
“Despite requests by John’s counsel, IWU refuses to contact Jane to require her to verify her HIV status. Absent a temporary restraining order directing IWU to do so, John will be forced to break quarantine to seek medical testing, potentially exposing himself to the novel coronavirus. With a serious preexisting health condition, John is especially vulnerable and will face irreparable harm if forced to seek medical attention in the midst of a pandemic. IWU can avoid this by simply contacting Jane and requiring her to verify her HIV status,” wrote John’s attorneys, Susan Stone and Peter J. Agostino.
John’s TRO requests stated that IWU was well aware that John has an underlying medical condition that causes him seizures and puts him at risk for contracting the coronavirus and serious complications from HIV, yet he contends that IWU was more interested in showing they take sexual assault allegations seriously than the truth of those allegations or an accused student’s life.
After John’s attorneys contacted IWU’s attorneys to demand Jane prove her allegations about being HIV-positive in an effort to spare John from leaving quarantine and exposing himself to the coronavirus by going to a doctor to obtain an HIV test. An email from IWU’s attorney, Amanda Shelby, shows little regard for John’s concern and suggests he order an HIV test online, take it at home, and then send it in for analysis.
John’s attorneys contend this is a flippant disregard for his health, calling it “offensive and insensitive, particularly when this dilemma was created by IWU’s callous and deliberate indifference.”
“In this situation, every moment counts, and there is no time to wait for a test to arrive and then wait to receive results. Nor is it a reasonable alternative for John to seek in-person medical attention when doing so would potentially expose him to the coronavirus, an equally dangerous and life-threatening virus. The simple solution is for this Court to compel IWU to contact Jane immediately and require her to verify her HIV-status through medical documentation. Otherwise, IWU’s inaction will continue to place John at risk of imminent, irreparable, life-threatening harm,” John’s attorneys wrote.
The attorneys argue that the balance of harms and the public interest weigh in John’s favor, since there would be next to no harm for IWU to simply ask Jane to prove she tested positive for HIV. John, however, faces great risk in the midst of the coronavirus outbreak and as a medically compromised person to determine whether he is HIV positive and begin treatment.
John’s previous motion for a preliminary injunction resulted in a ruling that he was likely to succeed on the merits of his Title IX violation claims, basic fairness violations, and breach of covenant of good faith and fair dealing claims. John’s attorneys claim this new evidence makes it even more likely his lawsuit against IWU would succeed.
They write that John was “denied the chance to present a case, cross-examine witnesses, and full appeal rights.” Even though IWU dean Andrew Parker, who was the sole investigator and decisionmaker in John’s case, was aware of Jane’s HIV claim, he did not mention it to John when they spoke on December 12. Further, John contends IWU violated its own handbook by allowing “the highest levels of IWU leadership” to directly intervene in John’s case and “order that his request for a Case Appeal be denied.”
It appears IWU just took Jane’s allegations about HIV at face value, assuming from the start that John was HIV-positive – must know it – and knowingly infected Jane. Since John says he was not HIV-positive before his encounter with Jane, it brings up the possibility that a) Jane is lying about testing positive to further her claims in order to get leniency for failing her semester, b) someone else raped her, or c) she got HIV from someone else and is pinning it on John, knowingly or unknowingly. If she lied about being HIV-positive or that John was responsible, then her credibility is at stake – yet IWU didn’t attempt to confirm her claims.
John’s attorneys previously contended that John did not rape Jane, and that the process used to expel him for at least one year was biased and unfair. His attorneys previously wrote that the single investigator took just seven working days to find John responsible despite evidence he was innocent. Jane, the attorneys contended, also broke multiple campus rules and was never punished.
The two engaged in sexual activity that John insists was consensual, while Jane claims it was not. John told investigators that Jane’s body language, participation, and her following John to his bedroom and continuing the sexual activity indicated she did consent. Jane also claimed she told John “no” and to “stop,” but he says she never gave any indication she wanted the activity to cease. Jane also stayed with John in his dorm room talking after the encounter and then went to his roommate’s room to talk and was overheard laughing. At that time, she also texted John while he was in the other room. That night and the next day, Jane continued texting with John normally without any indication something was wrong. The two had hooked up prior to this encounter as well.
The report that found John responsible focused on the agreements between John and Jane – the fact that sexual activity took place – while omitting key information from John’s side of the story. IWU used its rule that consent cannot be assumed from silence, the lack of a “no,” or prior sexual history as its basis to expel John until Jane was no longer a student.
If what John says is true – that Jane willingly participated in the sexual activity – then it is further evidence that such consent rules are meaningless because any accuser can claim they were violated without having to provide evidence of such.