Student expelled for sexual misconduct sues school but can't ask accuser to testify as it might traumatize her

Reason’s Robby Soave has an update on the case of a student who was expelled from Amherst College for an alleged sexual assault on his girlfriend’s roommate. Despite evidence that the male student (known only as John Doe) was at least arguably the victim of the sexual misconduct in this case, he was expelled. Here’s a bit of background on the incident, which took place in 2012:

The incident in question took place years ago, during the late night / early morning hours of February 4-5, 2012. Jones was Doe’s girlfriend’s roommate at the time. Jones went to Doe’s dorm room and sexual activity ensued: Jones performed oral sex on Doe.

But Jones was blackout drunk at the time—a detail that Amherst administrators deemed “credible,” on subsequent review. Of course, it’s questionable whether a blackout drunk student can actually provide the level of consent that Amherst’s sexual misconduct policy requires.

Other factors cast doubt on the idea that Jones was the victim and Doe the perpetrator. After leaving Doe’s dorm room, Jones texted another male student and asked him to come to her dorm room for sex. She also texted a residential advisor about her “stupid” decision to engage in sexual activity with her roommate’s boyfriend. In these text messages, Jones admitted that she was “not an innocent bystander.” She also complained about how long it was taking this second male student to do anything sexual with her. She did not file a complaint against Doe until two years later.

As Soave points out, “administrators never reviewed the text messages, and when Doe asked the administration to re-open the case in light of this error, Amherst refused.” The male student sued the school over his treatment but not his accuser. Now a judge has ruled that the expelled student has no right to have his accuser testify about the situation on the grounds that it would be traumatic for her to relive it. From the decision:

The deposition would force Ms. Jones to relive a night in which she asserts Mr. Doe sexually assaulted her. (See, e.g., Clune Decl. ¶ 3, Ex. 4; Resp. at 6-7.) It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured. (Id. ¶ 3, Ex. 5 at 11-12; Am. Compl. ¶¶ 54, 56.) It takes no leap of logic to reason that a live deposition would impose emotional and psychological trauma upon Ms. Jones. The court thus rejects Mr. Doe’s argument that “[t]here is no evidence to support” the burden on Ms. Jones (Resp. at 10) and instead concludes that the burden of an in-person deposition would be substantial.

The judge also ruled that the expelled student had no right to demand documents from the accuser on the grounds that he could get them from the school. But as professor KC Johnson points out, some of the documents in question could only come from the accuser:

Even [Judge James] Robart conceded that supplying requested documents wouldn’t impose psychological trauma on the compromised accuser, but he ruled that the accused student’s requests were either “overbroad” or consisted of “communications that could readily be obtained from other sources” (that is, people who work at Amherst). Yet much of the requested material couldn’t come from Amherst employees. For instance, a critical aspect of the accused student’s case is the basic unfairness of an adjudication that went forward under the false premise that A.S. had not reduced anything about the incident to writing. So the subpoena asked A.S. for “all communications, including text messages or emails, between you and anyone else on February 5, 2012.” The only conceivable source of this material would be A.S., not any Amherst employees.

The result of all this is that the expelled male student has limited ability to challenge the fairness of the school’s decision against him because a judge doesn’t want to traumatize his “victim.” Of course the only body to decide she is a victim is the one which expelled the male student. So there’s a bit of circular reasoning here based on a presumption the accuser is indeed a victim when in fact she may not be. As Soave points out at Reason, this decision would seem to provide an incentive for other students who find themselves unjustly expelled to sue their accuser as well as the school.