A college is refusing to examine evidence that could exonerate an expelled student accused of sexual assault — claiming that the university followed its policies and therefore doesn't need to conduct further review.
Last year, Amherst College expelled a student for allegedly sexually assaulting a fellow student nearly two years earlier. The expelled student, known as John Doe, is suing the college. Doe alleges that he was blacked out during the encounter, in which the accuser performed oral sex on him. The school's hearing board agreed that he was "blacked out," but since he was being accused it didn't matter. It also didn't matter that the sexual act was performed on him while he was in that state, meaning that, in a fair world, he would have been seen as being unable to consent.
But this is not a fair world, and Amherst expelled Doe after providing him little due process. Doe was provided an "adviser" during his hearing, but that person was described as being "not an advocate for the student." Indeed, Doe's adviser was an untenured administrator trained in "social justice education." He was hardly an addition to Doe's defense.
In its response filed on Monday (uploaded by K.C. Johnson, who first broke the original story), Amherst claims it provided Doe with "a trained adviser of his choosing." Doe alleges in his lawsuit that the adviser was assigned to him and that Amherst never said he could or should investigate the facts on his own. He also alleged that he was given a confidentiality agreement that would have prohibited him from speaking to anyone about the case — making it impossible for him to investigate on his own. Doe also alleges that he was advised that the could not obtain the assistance of an attorney.
In its response, Amherst essentially argues that it followed its procedures and was standing by its decision to expel Doe. The school said that it granted Doe an "equal opportunity to call witnesses to testify at the disciplinary hearing, to present evidence, and to respond to the evidence."
Doe, not having the assistance of an attorney and lacking the ability to investigate evidence and witnesses ignored by the school's investigator, was not given an opportunity to present evidence. He lacked the ability to engage in discovery, and his limited knowledge of potential exculpatory evidence was, he says, brushed off by his adviser, who told him it would be inadmissible and to not pursue.
Doe also alleges that his adviser never told him about text messages between the accuser and other students that would have cast serious doubt on her story. Those text messages came to light only after Doe's lawsuit was filed and he was able to use the right of discovery to obtain the text messages.
Amherst asserts that since Doe provided the text message evidence beyond the seven-day window provided to him to appeal, the school doesn't need to accept it. In fact, Amherst flat-out denies that the text messages prove Doe is innocent.
"Defendants deny that the documentation 'disclosed' an admission by Ms. Jones that she had 'consented to the sex' with Plaintiff or that she was the 'moving force' during the Incident, much less that it did so in an 'irrefutable' manner," Amherst says in its response.
Let's review the text messages that allegedly don't refute the accuser's claim of sexual assault:
• The accuser texts her friend that she "jus [sic] did something so f---ing stupid"
• Accuser texts that she "F---ed [John Doe]"
• Accuser gives her friend an "official story" to tell others, which is that "he puked and I took care of him."
• Accuser texts her friend that another man is coming over "so nothing happened everything's fine…"
• Accuser texts her friend that "[John Doe] was too drunk to make a good lie out of s---."
• Accuser texts that her roommate, Doe's girlfriend, "would literally never speak to me again."
• Her friend then suggested she "put all the blame on [John Doe.]"
• Accuser responds by saying that "it's pretty obvi [sic] I wasn't an innocent bystander."
• Accuser texts her friend after another man came over, writing: "why is he just talking to me" and "like, hot girl in a slutty dress. Make. Your. Move. YEAH."
• Accuser complained to her friend that "ohmygod [sic] action did not happen til 5 in the f---ing morning."
Both the accuser's friend and the man who came over after Doe provided text messages to Doe's attorney. (They were never asked to produce them for the hearing, despite investigators being told they existed.)
The second man supplied an affidavit saying that the accuser appeared "friendly, flirtatious and spirited" when he arrived and was not "anxious, stressed, depressed or otherwise in distress," as she claimed during the hearing.
Amherst claims none of this new evidence would have been relevant, as much of it was seen as victim-blaming the accuser for past sexual activities.
Further, Amherst notes that Doe didn't provide the new evidence until "several months after" he was notified of the hearing board's decision, which was also months after the seven-day appeals window. Conversely, the accuser was allowed to bring about her claim nearly two years after the incident.
Amherst also alleges in its response that Doe's claim that he was "blacked out" was unsubstantiated by witnesses that said he looked "pretty drunk" and by his actions that evening — he left the dorm where he was drinking and walked elsewhere, past the "town police station" and walked with his roommate back to their dorm.
Amherst alleges that Doe's roommate said Doe was "function[ing] normally," "seemed fine" and did not appear to be "blacked out."
Based on Amherst's refusal to admit Doe's newly obtained evidence, and in the current culture surrounding campus sexual assault, it's hard to imagine that Amherst would have allowed such evidence to prove a woman wasn't too drunk to consent to sex if she claimed otherwise.
Indeed, Amherst's policy states that "An individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent." If someone can appear normal in a blackout state when claiming they couldn't consent, how is it not possible for an accused to be in a blackout state when they appear normal? It's a double-standard.
Amherst also alleges that since Doe texted his accuser the next morning saying he hoped he hadn't been "too weird" and requested she not tell his girlfriend because he didn't "want to upset her," he somehow proved he knew the encounter "was potentially upsetting." Amherst seems to be indicating that Doe was aware of the rape. It's hard to imagine this same scenario being used to find an accuser was not telling the truth. This is evidenced by Amherst's dismissal of the accuser's messages following the encounter.
Amherst allowed the accuser to get away with the text messages by claiming during her hearing that she "didn't want to address what had happened to me and I was in no position yet to accept that it had been rape. So in my text messaging to [her friend] I only said things about the hook-up as if it had been consensual."
This is another instance of a school allowing an accuser to reinterpret evidence that would normally be useful for accused students. An accuser can send messages immediately following an allegedly violent, traumatizing encounter that frame it in no such way, and then months or years later claim they didn't say what they really meant in those messages.
This was also the case with Emma Sulkowicz, who remained friendly with her alleged attacker months after the incident, even responding to his birthday message to her by saying she loved him and missed hanging out with him. It was also the case at Vassar, when Peter Yu's accuser claimed that messages she sent him in the weeks and months after didn't reflect what she was really feeling.
It reflects a bias in schools where there is no such thing as evidence for accused students. Evidence that would cast doubt on an accuser's story is reframed to work in their favor; meanwhile, similar evidence against the accused is taken at face value.
Amherst College is in Massachusetts, a state that has seen a number of lawsuits from accused students in recent years. The outcomes of the lawsuits are a bit of a mixed bag. Out of nine lawsuits, five are still pending, two resulted in settlements, one judge found the school had breached its contract with a student and another judge ruled in favor of the college.