A judge has ruled George Washington University broke its contract with a student after he was accused of sexual assault and denied a chance to appeal even though he had evidence that directly contradicted the accuser’s claim.
John Doe, as he is named in court records, proclaimed his innocence and said that his accuser, referred to as Jane Doe, never made a phone call she claimed to have made — a phone call the school determined proved she had been too drunk to consent to sex. U.S. District Court Judge Rosemary M. Collyer agreed that this evidence — and expert testimony from a toxicologist – should have been enough to grant John an appeal.
John met Jane at a party in 2015. John, a virgin, consumed no alcohol since he didn’t drink for religious reasons. Jane consumed alcohol, although it is unclear how much she actually ingested. Jane said she wanted to have sex, so the two went back to John’s dorm room via an Uber ordered by Jane. The two had sex, and afterwards Jane walked back to her room.
Two years later, Jane would tell GW that John had sexually assaulted her and that she had been too drunk to consent to sex.
At first, Jane relayed the timing of her drinking throughout the night in question. A week later, she would add more alcohol to her drinking, and a few days after that, she would say she drank even more than she had previously reported.
At the hearing, a witness would claim that Jane was “not… able to speak fluidly, stumbling over words, not having perfect motor skills, tripping” as evidence she was intoxicated. Jane also claimed she had called a friend during the Uber ride. Jane’s friend, identified in court records as E.E., testified at the hearing that Jane did indeed call her and was “slurring [her] words” on the phone. After John sued GW when he was found responsible for sexually assaulting Jane and was not allowed to appeal, his lawyers subpoenaed E.E.’s phone records, because John said the call never happened.
Indeed, the call never took place. GW never requested the phone records during its investigation, relying only on Jane and E.E.’s claims, though John’s litigation makes it clear the university could have easily asked for the records. This phone call was supposed to prove that Jane was too drunk to consent to sex just prior to having sex — yet it never took place.
Further, the phone records show that Jane was, despite her claims to the contrary, coherent enough to make three phone calls before getting into the Uber, including a two-minute call to her roommate, who was conspicuously absent from the hearing against John.
Further, Jane only presented her full account of her alleged alcoholic intake at the hearing, so after John was found responsible, he hired a toxicologist to evaluate how much that amount of alcohol would have affected Jane throughout the night. In her ruling, Judge Collyer criticized Robert Snyder, GW’s executive director of planning and outreach and the gatekeeper to non-academic appeals, for ignoring what the toxicologist said except for what conformed to his pre-conceived notions of the case.
“Inasmuch as Mr. Snyder read the toxicology report to summarize only that Ms. Roe ‘would have had an extremely high level of intoxication,’ he concluded that it would not have altered the hearing panel’s finding of fact because ‘the exact number of drinks Roe contended she consumed . . . [was] explicitly before the hearing panel,’” Collyer wrote. “However, Dr. Harry Milman, the toxicologist, opined that the amount of alcohol Ms. Roe reported was so high that, if she were telling the truth, she likely would have been passed out and unable to stand, speak, remember anything from the entire evening, or dress herself and leave Mr. Doe’s room on her own two feet i.e., the report called into question her testimony regarding her level of drunkenness and how she had acted.”
Snyder also ignored an affidavit from Q.W., a student who testified on behalf of John — but not at the hearing. Q.W. wrote that Jane appeared “normal” and “lucid” at the party when he spoke to her.
Snyder ignored this evidence because he claimed he was only supposed to make a decision on the validity of the appeal based on “newly available” evidence. He said the toxicology report and Q.W.’s testimony “were not previously unavailable… as both could have been obtained prior to the hearing.”
John sued on multiple claims, including breach of contract. GW argued that while John was required to follow the university’s code of conduct, it had no obligation to do so in return, something Collyer didn’t buy.
Collyer granted John’s breach of contract claim and ordered GW to “consider the merits of Mr. Doe’s appeal, including review of his original appeal and accompanying exhibits as well as the E.E. phone records subpoenaed in this litigation and other relevant new evidence,” in accordance with the school’s code of conduct. GW must convene an appeal panel — without going through Snyder — and reach a decision for John by September 12, 2018.