Dreamstime
A male University of Southern California student expelled for sexual assault appealed the decision on grounds that the adjudication process was wholly inadequate and stacked against him from the start. USC's Title IX coordinator responded with shocking hostility—bureaucrats don't like when their authority is questioned, it seems.
"Does that college motherfucker know who I am?" USC Title IX Director Gretchen Dahlinger Means asked Title IX Investigator Patrick Noonan, after a conference call during which the student, "John Doe," had explained his intention to appeal. It was a hot mic moment: Dahlinger and Noonan thought the student and his lawyer had already exited the call.
That was not the only outburst. Means also said, "Who do those motherfuckers think they are?" in reference to the student and his lawyer, who had asked for USC to release the identities of the panel members who had voted to expel Doe. The administrators did not merely refuse this request; they were apparently incredulous that such a request had been made at all—that a student could possibly have the gall to ask for some basic transparency with respect to the Kafka-esque procedure that ruined his life.
The venomous statements of USC's Title IX team give this case a unique flavor, though the rest of the details make for a textbook Title IX dispute: spurned female student, bad breakup, after-the-fact accusation, total absence of due process, predetermined finding of responsibility. Doe recently filed suit against USC, and a state court issued a stay preventing his expulsion from going into effect. As KC Johnson writes, "On this record, it's not hard to see why." (Special thanks to Johnson for providing the relevant court documents.)
Doe began dating a female student, "Jane Roe," in the fall of 2015. According to his lawsuit, Doe told her that he did not want an exclusive relationship. They tried to have sex several times, but were "unable to complete sexual intercourse" the first two times. The third time, on October 14, they used lubricant, but the experience was still painful for Roe, who said "ouch" and asked Doe to stop—at which point all sexual activity ceased. Their relationship continued for several more weeks: they kept having sex, eventually with greater success, according to the lawsuit.
In November, Roe broke up with Doe because she suspected he was sleeping with another woman. (Given that he had repeatedly stated he did not want to be in an exclusive relationship with Roe, her suspicion seems well-founded.) In December, she told Doe that she was considering reporting him to the campus Title IX authorities—she now claimed their sex on October 14 was nonconsensual. In February, she told Doe and the president of his fraternity that she wanted him kicked out of the house. She stated that this outcome was all she required: if he left the house, she would not file a Title IX complaint against him. Doe had heard the Title IX process was stacked against accused males, and preferred to leave the fraternity rather than take his chances, and so he complied with Roe's demand, according to the lawsuit.
On March 22, the university informed Doe that he was the subject of a Title IX investigation.
Many universities maintain Title IX investigatory procedures that are unfair to accused students. USC is no exception, though its own process is unfair in novel and creative ways. While some universities employ adjudicatory panels, and others empower a sole administrator to investigate and weigh the charges, USC does both. A single person is given the task of investigating the dispute, interviewing the accuser and the accused, and gathering testimony from witnesses. This person then writes a report about the dispute and makes a judgment call as to whether the accused student should be found responsible. The report is then given to a panel, the Student Equity Review Panel, which renders a final verdict. The identities of the panel members are kept secret, and they never interact with the relevant players: they only read the report.
It's easy to see why this might be the worst of all ways to sort out a sexual assault dispute. The accused must not only rely upon the investigator to do a competent job—he must also rely upon them to write a good report about the investigation, and then trust that a bunch of people he has never met and has no way to contact will reach the correct conclusion. (The same is theoretically true for the accuser—it's not hard to imagine a case where an administrator is rightly convinced the accused is guilty but does a poor job explaining why, and the accuser has no recourse because the panel is a mystery.)
The investigator in this case was the Office of Equity and Diversity's Patrick Noonan. His report can be found here. Roe recalls the night of October 14 much differently. She says she never intended to have sex with Doe. He forced himself on her, and tried to penetrate her even though she had clearly said no several times. He held her down until she was finally able to push him off. She left in tears, writing on his white board, "You better have a great apology for this." Over the next few weeks, she eventually came to see the encounter as rape.
Noonan interviewed 18 other people, at Roe's request. None had witnessed the alleged activity, though they were able to confirm that Roe had given them the details of the story.
Roe also provided Noonan with screenshots of texts between her and Doe—only the texts she deemed relevant to her accusation.
Doe, on the other hand, gave Noonan an Excel file containing all text messages between him and Roe.
It's clear from reading the texts that they don't agree on what happened. Roe repeatedly told Doe that "your actions are equivalent to Bill Cosby's." Doe consistently denies committing rape, though he apologizes for hurting her and having unwanted sex with her.
Their statements to the investigator are also in conflict. Roe claimed she said no a dozen times or more, and Doe was so rough with her that he bruised her. She said the same thing to a whole host of other people. Noonan took this as evidence that the bruises were real—Roe told a lot of people about them—though no one but Roe actually saw the bruises, as best I can tell from the report.
Noonan asked Doe what steps he had taken to insure that he had obtained affirmative consent from Roe. He explained that he had reached for lubricant and said, "this should make things feel better." Roe had responded, "I hope so." He said they had had a conversation about how they were going to have sex, and they took each other's clothes off. He described it as "the least aggressive sexual encounter I've ever had. It was just the two of us barely moving." When she told him to stop, he did. He noted that this was their third sexual encounter—they had no disagreements during their first, second, or fourth sexual encounters.
Noonan ultimately decided that a preponderance of the evidence suggested Doe had not received affirmative consent to have penetrative sex with Roe. In other words, he took two conflicting accounts, and believed Roe's.
Noonan had a very specific reason for disbelieving Doe: by submitting all his text messages, he had actually doomed himself. That's because he submitted the texts out of order. Two of the most important texts—ones in which he apologizes for bad behavior, and comes off looking worst—were submitted out of order, and appeared last in the submitted file. Noonan took this as evidence that Doe was trying to cover his tracks. In his report, he said this action "severely diminishes [Doe's] credibility."
Well, Doe has an explanation for this, and it's a pretty good one. In his appeal, he wrote that Noonan never asked him to explain why some of the texts appeared out of order—Noonan merely presumed the worst. But Doe said he never manipulated the order of the texts at all: the application he used to download the texts, SMS Backup and Restore, did that. The out-of-order texts were the two longest messages exchanged between Doe and Roe, and according to Doe, the application converted these messages into a different format because they were too large. This caused them to appear last, since they were of a different file type. The same thing happened to two picture messages, which also appeared out of order, according to Doe. Noonan apparently missed this.
Other miscellaneous due process abridgements: Doe was never permitted to cross-examine Roe, or even appear in the same room with her. His lawyer was not permitted to speak when he met with Noonan. And he was not permitted to address the panel, directly—or even indirectly, given that he was not present when it convened and has no idea who comprises it.
Based on the evidence submitted, it's impossible to tell whether Doe committed rape. But the university's process for uncovering the truth clearly wasn't up to the task. Keep in mind that Noonan, the person whose judgment is most relevant to the outcome, has a background in labor law. He's a member of the Office of Diversity and Equity. According to Doe's lawsuit, Noonan didn't even record or transcribe his interviews: he merely took notes. His final report represents his recollection of the facts—a recollection that seems almost certainly mistaken when it comes to the all-important out-of-order text messages.
USC administrators are not equipped to judge the merits of Roe's claims. That's clear from their actions, and it's clear form the statements they made when they thought no one was listening. Doe and Roe should settle this dispute—a very serious dispute, concerning a violent crime of a sexual nature—in a court of law, not a Title IX office.
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