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Male Cornell student’s accusation of sexual assault, discrimination ignored

By   /   November 23, 2016  /   News  /   No Comments

Two Cornell University students — a male and a female — have lodged sexual assault accusations against each other, but only the female’s accusation was investigated.

The male student, believing he was being discriminated against because of his gender, filed a complaint against the person investigating the sexual assault accusation. Cornell is refusing to investigate his claim, despite university policy requiring it to do so. The male student and his attorneys are now asking the Supreme Court of the State of New York to compel Cornell to follow its own policies and investigate his complaint.

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CORNELL: A male student of the Ivy League school says his sexual assault case isn’t being taken seriously.

John Doe and Jane Roe, as the students are referred to in court documents reviewed by Watchdog, accused each other of sexual assault in an incident that occurred in August. Jane filed her accusation first, but John’s attorney told Watchdog that his client was attempting to file his own accusation at the same time, but didn’t know Jane’s real name and therefore couldn’t make the accusation. It wasn’t until after he was served with her accusation that he learned the name of the woman he claims assaulted him.

Under Cornell Policy 6.4 regarding accusations against students, the university is required to provide investigations that are “timely, thorough, and impartial and provide for a fair and reliable gathering of the facts.”

John alleges Cornell violated this policy in multiple ways when it refused to investigate his own claim of sexual assault and only focused on Jane’s accusation.

On Sept. 30, a Cornell investigator (who is not named in court documents) provided a copy of a draft investigative record to John. The record contained transcripts of interviews conducted during the investigation, as well as other documents and materials obtained. John alleges in court documents the investigative record showed a clear bias against him and a failure to investigate his own accusation of sexual assault. John alleges the investigator discriminated against him in favor of Jane by violating multiple aspects of Cornell Policy 6.4.

For example, despite assurances that accusations of sexual assault will be investigated, John said the investigator ignored his complaint, as well as evidence that incriminated Jane. The investigator also allegedly conducted biased interviews of the two students, asking “misleading, prejudicial and slanted questions only of John Doe.” The record also included a draft summary of an unrecorded interview with one of Jane’s witnesses that John could not fact check.

John said he requested the investigator have Jane and other witnesses preserve and produce text messages regarding John’s complaint against Jane. He said the investigator refused to do so, meaning exculpatory evidence could have been ignored or deleted. This investigator also, according to John, denied his request to speak with his attorney before answering an improper question.

In contrast, John alleges that Jane was treated with respect and dignity, and that questions posed to him appeared to assume Jane was telling the truth “despite contrary scientific and objective evidence.”

Schools adjudicating cases of sexual assault

The Education Amendments of 1972 include a statute known as Title IX, which prohibits colleges and universities that receive federal funds from sexually discriminating against students. The statute was initially used to grant equal access to women’s sports, but has since been used to require schools to adjudicate accusations of sexual assault, harassment and dating violence. While most of these accusations should constitute an actual crime (sexual assault, for instance, is a felony), schools are not required to report to law enforcement or even provide accused students with meaningful due process.

The enhanced focus of sexual assault through the Title IX statute came in 2011, when the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter requiring schools to more forcefully adjudicate accusations of a sexual nature. The due process rights of accused students were given the back seat in this letter. While the letter mentioned the words “due process” three times (once was in a footnote directing schools to 2001 guidance regarding due process rights for students), it provided little in the way of meaningful rights. In fact, the letter actually restricted some important rights for accused students by stating those rights must “not restrict or unnecessarily delay the Title IX protections for the complainant.”

The 2011 letter also required schools to use a “preponderance of evidence” standard when adjudicating claims of sexual assault and harassment. This meant that adjudicators only needed to be more than 50 percent sure an assault or harassment occurred to punish the accused, often with expulsion. This also meant adjudicators could be 49.99 percent sure the assault or harassment didn’t occur and still punish a student. Until 2011, many schools were using the “clear and convincing” standard — meaning they were reasonably certain the assault or harassment occurred.

There was no legal basis for OCR to require the preponderance standard be mandatory. When asked by Sen. James Lankford, R-Okla., what the legal basis was, OCR claimed it had a right to impose the standard because most schools were already using it.

The 2011 letter also provided multiple requirements and suggestions that would tip the scale in favor of accusers, since adjudicators only needed to be 50.01 percent sure the accuser was telling the truth. Most notably, the letter “strongly discourage[d]” schools from allowing cross-examination because “allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

There is no consideration for the fact that accusers — without being under oath or facing consequences for false reporting,and with the current media landscape suggesting all accusers be believed regardless of evidence — might not be telling the truth and cross-examination might be the only way to challenge their version of events.

Title IX complaint

Due to his alleged treatment by the investigator, John complained to Cornell’s Title IX coordinator, Sarah Affel. Cornell Policy 6.4 has a separate grievance procedure for accusations against university staff, and Affel suggested John file a discrimination complaint with Cornell’s Deputy Title IX Coordinator Laurie Johnston. Cornell Policy 6.4, as it relates to accusations against staff, states that students who believe they have been subjected to sex discrimination have the right to “participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard.”

The policy also states that investigations into complaints against staff “must be completed within 60 days, subject to extension by the investigator as may be necessary or for good cause.” John alleges in court documents that his complaint was ignored. On Oct. 2, John sent Affel a 17-page document detailing the sex discrimination by the Cornell investigator. The next day, she emailed him his “rights and options under Policy 6.4” and connected him with Johnston to file a formal complaint.

On Oct. 4, John and his father met with Johnston, who promised she would promptly draft a complaint and forward it for review. Two days later, John’s father contacted Johnston about the status of the complaint draft. Johnston didn’t reply.

It wasn’t until Oct. 14, when John’s attorney, Alan Sash, wrote to Affel about the lack of progress, that a response was received. Hours after Sash contacted Affel, Johnston provided the draft complaint, but informed John she would not be acting on the complaint promptly, as required by school policy.

Specifically, Johnston wrote that because John was accused of sexual assault, and that investigation was still pending, she would not investigate his claim of sex discrimination because the “matter may resolve those issues.” Nothing in Cornell policy states the school must ignore a complaint of sex discrimination while another complaint is investigated.

Sash argued that Johnston’s response violated school policy and the law, stating that John has “an independent right to invoke Policy 6.4 (Staff) regardless of any collateral issue that he may be having with Jane Roe.”

On Nov. 1, Affel finally responded to questions from Sash, misstating school policy by claiming that “our process is not designed to permit a party to file a separate complaint against an investigator.” This is incorrect, as Cornell has two separate policies for handling these matters.

Sash expressed dismay with the school’s treatment of his client in an email to Watchdog.

“Faculty and staff cannot get preferential treatment. Sex discrimination is a serious issue and Cornell needs to take it seriously,” he said.

John and Sash allege that because Cornell refuses to investigate the discrimination against him, that discrimination continues. Since John filed his complaint, the investigator has, according to court documents, refused to accept a report from a medical expert that refutes Jane’s claims and actually incriminates her, and refused to meet with John regarding his own complaint of sexual assault against Jane. The investigator has also allegedly refused to “redact improper and prejudicial information that she inserted into the investigative record,” another violation of Policy 6.4.

Meanwhile, Cornell continues to evade John’s complaint of sex discrimination against the investigator. At first, Affel said he had the “right” to make the complaint, but weeks later said the school would not pursue it because of the accusation against him. Weeks after that, Affel said John didn’t have a claim against the staff and could only remedy the situation using a policy for students, which wouldn’t apply.

A win for the accused

On Oct. 12, OCR issued a finding against Wesley College in Dover, Del., alleging the school violated the rights of the accused when it was adjudicating a sexual harassment complaint. It was only the second known finding from OCR that determined students accused of sexual assault or harassment have rights.

Sash is asking the court to compel Cornell to investigate his complaint of sex discrimination and to declare that Cornell is breaking the law by refusing to do so.

Sash told Watchdog he had previously sought remedy through Cornell’s outgoing president, Hunter Rawlings III, but never heard from him. He says he is hopeful new president Martha Pollack will respond.

“Cornell has given us a revolving door of excuses as to why it won’t investigate our complaint. That’s unacceptable,” Sash said. “If Cornell is serious about tackling sex discrimination, then it must investigate all complaints even if it means investigating people on their payroll.”

Schools are unable to comment on the specifics of lawsuits from students, and Cornell is no different, telling the student newspaper, the Cornell Daily Sun, only that it would “vigorously defend against this litigation.”