Expelled student sues Amherst College, faulting investigation into 2012 rape case

Last modified: Monday, June 01, 2015

SPRINGFIELD — A former Amherst College student expelled in 2013 after being found responsible for sexual assault is suing the college, arguing that a “deeply flawed” investigation failed to consider key evidence that proved his innocence.

This is the second federal lawsuit against the college this year related to its sexual assault discipline practices. An earlier case involving a student who was expelled after being found responsible for a sexual assault was settled out of court in January.

The new plaintiff, identified only as “John Doe” in court documents, said he was unjustly accused and then found responsible in 2013 for raping a female student nearly two years earlier, according to a complaint filed Friday in U.S. District Court in Springfield.

The Boston lawyers representing the man, Max D. Stern and Hillary A. Lehmann, argue the college was under “intense pressure” at the time to take action on reports of sexual assault. In 2013, a student’s criticism of how the college handled her rape report made national news.

They claim the college gave unfair treatment to the man’s accuser because she is female and allege that the college’s pursuit of sexual assault perpetrators unfairly targeted men of color. The man is of Asian descent.

The suit names Amherst College, its president, Carolyn “Biddy” Martin, and four other administrators as defendants.

Case background

The man and the woman he is accused of assaulting, identified by the pseudonym “Sandra Jones,” were sophomores when the incident in question occurred early Feb. 5, 2012. Both agree the woman performed oral sex on the man in the woman’s dormitory room that night, according to documents.

The woman told a college investigator though she initially consented to the sex, she revoked it in the middle of the act. She said the man then made her continue using physical force, documents show.

The complaint states that the college in its investigation failed to consider key evidence — text messages sent by the woman later that same night. The man’s lawyers say the messages show that the woman was an active participant in the sex.

Moreover, they argue that because the man was in a “blackout state” due to the consumption of alcohol when the incident occurred, a fact that was found to be credible by the college’s investigation, the woman is guilty of sexual misconduct in accordance to the college’s student handbook.

After the man obtained these text messages and submitted them to the college, the college refused to reopen his case.

The man’s lawyers are asking a judge to order the college to immediately overturn his expulsion and remove a note on his transcript that states he was expelled for disciplinary reasons. They are also seeking unspecified monetary damages at the conclusion of the trial.

Amherst College spokesman Pete Mackey on Saturday responded to a request for comment with a statement.

The statement says the federal Title IX law, which prohibits sexual discrimination in education, “requires colleges to have in place prompt, thorough and impartial means of investigating and adjudicating claims of sexual discrimination, including sexual violence.”

College’s investigation

The man’s attorneys allege that an Amherst College student and sexual assault victims’ advocate, identified by her initials “L.R.,” encouraged the woman to report the incident to college officials. The lawyers say that L.R. offered to testify that the man had told her he raped the woman, a statement L.R. allegedly maintained would help the woman win the case at a disciplinary hearing.

The woman filed a complaint with the college Oct. 28, 2013, 21 months after the incident, alleging she had been raped by Doe.

Four days later, the male student was notified by Mitton Shannon, a college official and defendant in the case, that he was the subject of a complaint. He was given an week to respond to the allegations and to find an adviser to “guide” and “accompany” him through the process, but never to “advocate” on his behalf, according to court documents.

The investigation and following hearing would be the first since the college overhauled its sexual misconduct policy earlier that year in response to nationwide controversy over its handling of a sexual assault allegation. The controversy began when former student Angie Epifano wrote an essay that detailed the college’s response to her reports of being sexually assaulted.

The man was also the first student expelled from Amherst College over sexual misconduct in 20 years, the man’s attorneys say.

The college hired attorney Allyson Kurker to conduct an investigation into the assault report. She was charged with interviewing the woman, the man and anyone else with relevant information about the incident, according to the complaint.

When Kurker interviewed the woman about the incident on Nov. 11, her story differed from the one she told in the initial report made two weeks earlier. In that report, she wrote that the sex was non-consensual throughout, while during the interview she said that she had initially consented to the sex and only revoked consent “on a break” during the act, documents show.

The woman also told Kurker that she did not put in writing the details of what happened between her and Doe that night, including through a text message.

Kurker also interviewed the woman’s roommate at the time, identified as “E.K.” in documents. E.K. and Doe had been dating when the incident between Doe and the female student occurred, according to the complaint.

E.K. told Kurker that she had heard that the woman had exchanged text messages after the incident with the residential counselor at their dorm, identified as “D.R.”

Kurker never interviewed D.R. and no text messages were collected as part of the investigation, according to the complaint. She also did not ask the woman to identify people she saw or communicated with immediately after the incident.

L.R. told Kurker during the investigation that the man admitted to her that he sexually assaulted the woman in February 2012. That statement was later found by the disciplinary board to lack credibility, according to documents.

Kurker’s report did not offer a conclusion on whether the man forced the woman to engage in oral sex. She did find that his account of being in a blackout state was credible, according to documents.

The hearing

The man’s lawyers argue he was never told he was allowed to investigate the facts of the incident himself and interview potential witnesses. He believed he was forbidden to do so because of the college’s confidentiality policy, according to the complaint.

The man consulted his faculty adviser, then-Assistant Dean of Students and Director of Residential Life Torin Moore, about whether he could pursue evidence about the woman “hooking up” with another student after he had left. He obtained that information from another student. Either Moore or Shannon told the man that the evidence would be inadmissible during the hearing, according to documents.

That advice was incorrect, according to the student handbook guidelines. The rules exclude evidence of an alleged victim’s prior sexual activity, but not subsequent sexual activity.

The hearing was held on Dec. 12, 2013, and was chaired by then-Dean of Students James Larimore, who is named as a defendant.

Kurker outlined her investigation and reported that the woman had not told anyone about the incident immediately afterward, nor did she “keep a journal or send emails about it.”

During the hearing the woman revealed that she had, in fact, exchanged text messages with a friend that night.

The woman told the board that she was feeling “alone and confused” after the incident, so she texted a friend to come over and talk and spend the night. She was not asked to identify the friend, nor was he identified by Kurker.

Doe was notified the day after the hearing that he was found responsible for violating the school’s sexual misconduct policy and immediately expelled.

He filed an appeal that was denied.

In its statement Saturday, the college defended the investigation and hearing, calling it fair: “In this instance, the hearing board concluded that the individual violated the college’s policies on sexual misconduct and respect for other persons. The college is confident that the hearing board followed the College’s process in making its decision.”

Text messages

After he was expelled and his appeal denied, Doe learned the identity of the man who stayed over at the woman’s dorm room the night of the incident, identified as “M.L.”

He obtained text messages exchanged between the woman and M.L. and D.R. the night of the incident. Contrary to the woman’s testimony at the hearing, the text messages show that she had been trying to get M.L. to come over since 5 p.m. the day before.

Doe’s lawyers argue the timing of the text messages counter the woman’s claims that she invited M.L. over because she felt alone and confused.

M.L. said in his affidavit obtained by Doe that the woman appeared “friendly, flirtatious and spirited” when he arrived at her dorm the night of the incident.

D.R.’s text messages with the woman began around 1:14 a.m., just after Doe left her room after the incident.

In the messages, the woman said that she had just done something “stupid.” She said that she had “f---ed” the man. She expressed concern about what E.K., her roommate and the man’s girlfriend, would do when she found out about the incident. “I’m pretty sure [John Doe] was too drunk to make a good lie out of s--t,” documents show she wrote.

D.R. suggested that the woman put the blame on the man, to which the woman replied, “[E.K.] knows me it’s pretty obvi I wasn’t an innocent bystander,” according to documents.

The text messages continued between D.R. — a student who worked as a residential counselor — and the woman during her interactions with M.L.

In those messages, the woman described her eagerness for M.L. to make a move, later saying that “action” didn’t happen until 5 a.m.

Doe’s lawyers argue that the text message evidence submitted by the man to college officials “unmistakably conveyed her agency as far more than passive consenter and rather as initiator and active participant” and that if the board had access to the information, there is a “substantial likelihood” that it would have reached a different conclusion.

Doe submitted the affidavits and text messages to college officials on April 16, 2014, and requested that he be reinstated or that the investigation into the incident be reopened.

The college refused to reopen the hearing or investigation, the complaint says.

Chris Lindahl can be reached at clindahl@gazettenet.com.


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