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The case against Case: College ignored own policies in biased sexual assault investigation

By   /   March 3, 2017  /   News  /   No Comments

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CASE LAW: A student alleges anti-male bias in sexual assault investigations at Case Western Reserve University.

In a scenario that has become common on college campuses, a school ignored its own policies when conducting a sexual assault investigation, according to a new lawsuit filed against Case Western Reserve University in Ohio.

John Doe and Jane Doe, as they’re referred to in court documents, met in August 2014 during freshman orientation. John was a sophomore and part of the orientation team. Jane was an incoming freshman. The two became friends and eventually entered into a sexual relationship, according to the suit, filed March 1 in the U.S District Court for the Northern District of Ohio.

The two saw each other frequently, with John advising Jane on her courses and taking her shopping when she asked. But things changed on Sept. 13, 2014, when Jane asked John for space and said she needed time to think about her feelings. John says in his lawsuit that he was disappointed, but accepted Jane’s request.

Early in the morning of Sept. 14, however, a friend of Jane’s texted John that she wanted to see him. John says in his lawsuit that he was confused because just hours earlier Jane had asked for space. But shortly after the text from a friend, Jane herself texted and asked John to come meet her. John left his friends to find Jane, who had her arms around another man.

John was against disappointed, and turned to leave, but Jane ran up to him an asked to sleep at his fraternity house. The two went back to Jane’s dorm so she could change before returning to John’s fraternity, where he says he made her dinner and the two played billiards for a while.

Jane allegedly told John she wanted to sleep with him, so they went to the fraternity’s basement to be alone. They began kissing and things progressed in a way they had numerous times before. There was sexual contact, but they did not have intercourse, according to John’s lawsuit.

While facing each other on the couch, John’s lawsuit says, Jane “suddenly” pushed him away, got up and began crying. John was confused and tried to comfort her, and drove her back to her dorm when she asked. John apologized on the way home, not knowing what had gone wrong. He thought maybe she had been upset that he broke his promise to give her space, even though it was at her request. On the way back to her dorm, Jane again said she needed time apart to think about their relationship.

The next day, the two met up again and Jane again said she wanted to stop seeing John so frequently. After this, John texted Jane, sent her gifts and spoke to her when he saw her.

Several weeks later, John says in his suit, he gave up.

‘Blindsided’

A month later, Jane’s friend – who worked with the school’s Deputy Title IX Coordinator and Assistant Director of Student Affairs Shannon Greybar Milliken – suggested Jane speak with Milliken about John.

Jane had told this friend she “was just trying to process her feelings” about John, but was encouraged to report the incident on the couch as a sexual assault.

When Jane met with Milliken on Nov. 25 (weeks after John stopped contacting her) she did not request an investigation, according to the lawsuit, but one was initiated anyway. Before the investigation was underway, however, Milliken asked Jane if she needed support resources or academic accommodations.

When a student makes an accusation of sexual assault to her college, she may be given special accommodations, such as a change in dorms or classes.

Sometimes, however, those accommodations may provide an incentive to make an accusation. Accommodations can be helpful for actual victims, but they can also provide grounds for a shaky or unsure accuser to become locked into a story, fearing that if they later recant they may lose their privileges.

John’s lawsuit doesn’t explicitly make this assumption, but it should be noted that the accuser was failing one class and was allowed to repeat that class without her grade point average dropping or being removed from the school’s nursing program.

John wasn’t informed of the accusation until Dec. 10, two weeks after Jane spoke with Milliken. He was presented with a “no contact” order, and the next day he received an email telling him to meet with Trina Jones, a department assistant at the Office of Student Affairs. John wasn’t informed what the meeting would be about and did not say he could bring an adviser. John also wasn’t made aware that he would be meeting with Milliken and not Jones.

John showed up to the meeting “blindsided,” because there had been no “discussion of his rights and responsibilities or the CWRU policies and procedures,” according to the lawsuit, and without being informed he could bring an adviser.

Case Western policy states that accused students should also have access to support services, but when John told Milliken that he had been severely depressed, stopped going to classes for two weeks, dropped a course and was struggling in Spanish, Milliken offered him no assistance, according to the lawsuit. During that first meeting, John told her he was “having troubling verbalizing things lately. I was told I have a depression based aphasia. I have an impairment in the speaking portion of the brain. It is induced, so I have been taking pills.”

Despite learning of John’s disabilities, Milliken didn’t stop the interview or call in support, according to the lawsuit. Instead, Milliken asked John what happened during the alleged incident with Jane. John is religious, and told Milliken that he “became tempted to do things that were not moral.” John was referring to sex, but Milliken apparently took this as an admission of guilt.

Milliken asked Jane and John if they felt safe on campus. Jane said she did, John said he didn’t, but still was not offered any support services.

Milliken also during this meeting showed John a chart that outlined the disciplinary process, but told John she would be “skipping” most of it, but provided no explanation as to why.

A week after John’s interview with Milliken, on Dec. 23, John texted Jane trying to apologize for whatever he did to make her upset. He also wished her “peace for the holidays,” according to the lawsuit. Jane reported this text to Milliken, as it had broken the no-contact order.

When John returned from the holiday break, he again met with Milliken. This time Milliken asked him to confirm his earlier statements and proceed directly to a hearing. John says in his lawsuit that at this time he requested a formal investigation. Milliken kept a “Sexual Misconduct Check List” during the investigation, and claimed in it that it was she, not John, who requested the formal investigation due to the “seriousness of accusation.”

This checklist also claimed John had made a written statement. John says in his lawsuit that he never provided a written statement.

‘He didn’t stand a chance’

The hearing against John was stacked against him.

Fourteen witnesses were interviewed between Feb. 9 and 24, 2015, but John was never allowed to review or respond to their statements prior to his hearing. Additional witnesses were interviewed the day of John’s hearing, and one was interviewed the day after. The witnesses weren’t required to appear before the hearing board, so John couldn’t challenge them at his hearing, either.

Their statements were included in the investigation report, which was not provided to John before his hearing. John was allowed to see the report for only 20 minutes – the day after – his hearing, in order to allow him to prepare for his appeal.

Jane also wasn’t required to attend the hearing. Milliken didn’t provide the panel with the written accounts from Jane or any of the witnesses, and instead provided only her summaries, in violation of school policy.

Without any way to defend himself, John was found responsible and received a two-year suspension, a permanent ban from campus residency, a continued no contact order with Jane and the status of persona non grata.

John was given three days to appeal, which he did. Again without the ability to properly defend himself, John’s appeal failed, and, incredibly, his sanctions were increased to a three-year suspension. John would later find out that the Appeals Board Chair also worked for the school’s Title IX office.

John is alleging bias in the investigation.

He says in his lawsuit that Milliken and other CWRU employees ignored Jane’s “inconsistent and varying account of the events,” which were included in the investigation report. For example, Jane wrote in her formal complaint that she “did not give consent for the oral or vaginal sex performed by [John Doe],” yet John maintained throughout the investigation that there was no sexual intercourse. Jane also began her interview by being unsure of whether penetration occurred, and “assum[ing]” John had touched her breasts, to saying for certain that John had vaginal intercourse with her. John maintains he did engage in sexual acts with Jane, but did not have intercourse with her on the night of the alleged incident.

John also alleges he was “lured” into “a false sense of security when they falsely assured him it would be in his best interests to cooperate and tell them everything.” He says they also forced him to sign an agreement accepting the suspension by promising him he could retain his scholarship upon returning to CWRU.

John also alleges bias throughout the investigation because Milliken – who had conducted the investigation, including interviews with Jane, John and witnesses, and provided the investigation report to the hearing board with her recommendation to find John responsible – had written her thesis just one year previously, titled: “The Dangerous Reality: Sexual Risk Taking Among College Women.” The thesis focused on the depression and eating disorders experienced by women who engaged in casual sex. Milliken concluded in this thesis that “we have an epidemic in higher education regarding the sexual risk taking of college students, in particular women.”

John believes Milliken showed an anti-male bias during the investigation, in particular by describing his actions toward Jane as “wanting to control” her. He is suing CWRU for violating the anti-sex discrimination statute Title IX and his due process rights, and for breach of contract, alleging the school violated its own policies while investigating him.

In a statement to Watchdog, John’s attorney, Andrew Miltenberg, said the disciplinary process taken by CWRU assured a finding of responsibility against John.

“The absurdity of the discriminatory process at CWRU exemplifies how the single-investigator model used in so many higher education Title IX procedures denies due process to respondents by allowing one person, who at CWRU had a documented bias against accused males, to determine the outcome,” Miltenberg said. “John Doe couldn’t question his accuser or the witnesses. He was not provided with the report detailing the evidence against him. He didn’t stand a chance.”

No representative of Case Western spoke with Watchdog because schools refuse to comment on ongoing legal matters related to Title IX cases.

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