Three Lessons For Victims Of Campus Sexual Assault In The Purdue University Case
At the end of June as the dog days of summer began, a three-Judge panel, all women judges of the 7th Circuit Court of Appeals, ruled against Purdue University. The Appeals Court decided in favor of a male student who sued Purdue under Title IX for discriminating against him on the basis of sex and for treating him unfairly in its campus judiciary. Purdue’s campus court had previously found the student guilty of sexual misconduct, a court described by one journalist as run by “vigilantes riding in … on kangaroos.”
When the 7th Circuit ruled that Purdue had been unfair, champions of robust due process rights for students did not hesitate to crow for a victory lap. But the lessons for women or other students who come forward with claims of sexual assault are potentially more important. These lessons are almost always overlooked when courts issue decisions slapping down universities’ quasi-judiciaries and campus courts and ruling in favor of male plaintiffs.
The Unfair Title IX Process at Purdue University
Like cases decided by other courts, such as John Doe v. Columbia in the 2d Circuit or John Doe v. Brandeis University in the District of Massachusetts, the plaintiff’s allegations depicted an outrageously unfair process.
At Purdue, both John Doe and his accuser, identified only as Jane Doe, were both Navy ROTC students. They began a consensual physical relationship that lasted for most of the 2015 fall semester. Their relationship then became fraught with turmoil. As 2016 began, John Doe reported a suicide attempt by Jane Doe, hoping to get her assistance. This eroded the trust between the couple, and they broke up. Jane Doe began dating someone else. Months went by.
At the end of spring semester 2016, however, Purdue hosted dozens of events encouraging the reporting of sexual assault on campus, sponsored by campus advocacy organizations. Motivated by these campus events and demonstrations, as alleged by John Doe, Jane Doe initiated a complaint against him. She claimed that on one occasion she had been sleeping when she awoke to him groping her over her clothes without her consent. Other allegations included that he had “lost his temper in front of her.”
John Doe denied touching Jane Doe without her consent. But Purdue’s Title IX office produced a report that claimed John Doe had “confessed” because he admitted that he had touched Jane Doe’s knee while she slept on a futon after her suicide attempt. Meanwhile, the Title IX investigator completely omitted John Doe’s description of Jane Doe’s suicide attempt.
Purdue held a hearing. The process became even more unfair. Purdue found John Doe guilty although Jane Doe neither submitted a written statement nor came in person to tell her side of the story. Instead, Purdue permitted a campus victim’s advocacy organization to submit a letter on her behalf. At the hearing, Purdue’s panel members admitted they never read the Title IX office’s investigation report. They simply assumed John Doe was guilty from the start.
Purdue also withheld evidence from John Doe, including the entire investigation report. He had no chance to counter it. Purdue refused to allow John Doe to present witnesses, including a direct witness who was in the room at the time of the alleged knee touching which Jane Doe claimed was an assault. Purdue’s campus court then formally found John Doe guilty of a sex offense and suspended him. Purdue’s Navy ROTC program then threw him out under a “zero tolerance” policy.
What Victims Can Take Away from Purdue’s Botched Title IX Case
Those who come forward to complain that they have experienced sexual assault should not be surprised that John Doe could challenge the blatant unfairness at Purdue in federal court or that the courts are listening—and listening carefully. These cases hold important lessons for those who come forward with complaints of sexual misconduct and abuse. Furthermore, the Purdue case points up exactly how an experienced attorney can help you with your Title IX case, protect your rights, and help you tell the truth.
For the most part there has been silence about the Purdue case, even by avid bloggers who claimed to watch federal Appeals Court cases diligently. It is often these cases that teach the most about how to handle cases on behalf of victims as well as what not to do in order to avoid hopelessly compromising your rights.
Here are three takeaways from the Purdue case for victims of sexual assault.
1. If You’re at a State School Be Aware That the Accused Has Constitutional Rights to Due Process
Trampling the rights of the accused does not serve your interests as the accusing party. Experienced higher education attorneys know this, and if your advisor is not counseling you on this fact, they are not doing their job. Any advisor who is guiding you through a campus Title IX process should vigilantly watch the university to make sure that it follows its own rules. This also means not taking shortcuts when it comes to the accused’s rights.
At state schools, the accused are guaranteed due process rights by the state and federal constitutions. Many private schools guarantee due process rights as well by writing them into school policies, handbooks, and manuals. These constitute contracts between the school and each student. Even if there is no constitutional right to be treated fairly by the campus quasi-judiciary, there almost always are contract rights specified in these policies.
2. Campus Advocacy Organizations Can Do You More Harm than Good
An attorney can help work with you to tell your account in a way that is consistent, credible, and speaks for itself based on facts. Your conversations with your attorney are also confidential and privileged. They are protected. Your attorney will inform you what facts make your case strong and what evidence you should gather and protect.
Among many campus advocacy organizations it is common to start with the proposition, “believe the victim” or “believe the women.” These approaches can quickly lead to disaster, which appears to have befallen Jane Doe and everyone else at Purdue.
Should women be believed? Should victims be believed? Of course–if what they say is true and if they are truly victims. But presuming from the outset what the facts are supposed to show does not help make a strong case; it undermines it.
It is the job of an impartial tribunal to determine the truth of conflicting accounts. When a campus court or administrator prejudges one party as automatically more “believable” than another, courts will not hesitate to recognize this for what it is. It is bias.
Your advisor should therefore guide you in telling the truth and presenting the facts. Your advisor can guide the university to the facts and away from biased presumptions.
3. Work with Your Attorney to Seek Disability Accommodations for the Process Itself
In the Purdue case, Jane Doe was suffering from a clear psychiatric condition—although her diagnosis is not stated in the case. It was so serious that she had attempted suicide at least once.
Disabilities have implications for the Title IX process. Jane Doe deserved to be protected and probably needed support so that the process of investigation and hearing did not further aggravate her condition. At the same time, Jane Doe’s support and protection should not have undermined the core function of the investigation and hearing, which is to determine the truth.
At Purdue, the campus judiciary turned to a campus advocacy organization as a substitute witness, apparently to spare Jane Doe the stress the process might have placed on her. Jane Doe didn’t submit a statement in her own words or testify. She, her advisor, and Purdue allowed advocates, who probably had an agenda of their own, to speak for her. The federal appeals court found this to be one of the hallmarks of a biased proceeding at Purdue, which journalists mocked as a kangaroo court.
But there is nothing unfair about accommodating disabilities. In fact, the law requires it. It is equally important, however, that accommodation for disabilities support your credibility and support the fact-finding process. This includes accommodations in the Title IX process.
The accommodation of disabilities and the protection of complainants does not have to undermine the truth as it did at Purdue. Reasonable accommodations can be put in place that help you tell the truth and help the hearing officers or investigators understand your version of events. An experienced attorney can work with your treating professionals and advise you about what accommodations will both protect you. Equally importantly, the right accommodations will place your facts in front of the campus hearing panel in a way that protects your credibility.
