Friday, February 16, 2018

Conclusion


[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.


These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.]


John Doe and Brandeis University filed a joint motion on Sept. 13, 2016 to dismiss Doe’s lawsuit.

The joint motion dismissed Doe’s claims “with prejudice,” which means that Doe agreed he would not refile the same or related charges against Brandeis in the future. The motion stated that the dismissal did not include a payment from either side, and that both Doe and Brandeis were waiving any rights to appeal.

Primary Source: Joint motion to dismiss

That same month, Patricia Hamill, one of John’s lawyers, released a press release regarding the joint motion to dismiss. In the release, Hamill said Doe felt vindicated by Judge Saylor’s ruling, which was highly critical of the procedures Brandeis had used to investigate Doe.

Hamill also cited John Doe’s concern with the expense of continuing the litigation as well as John’s desire to move on with his professional and private life.

Primary Source: Hamill’s press release

Julie Jette, director of media relations at Brandeis University, emailed this blog a statement in response to the allegations contained in John’s amended complaint and Judge Saylor’s ruling.

Jette said the university is limited in what it can say about the case. Jette added that the school denied the “vast majority” of the allegations in John’s amended complaint, and that none of the allegations in the amended complaint were ultimately substantiated.

“Judge Saylor’s ruling allowed the case to proceed but did not validate its claims. Doe then voluntarily requested dismissal of the case, and Brandeis agreed to the dismissal. There was no settlement involved,” Jette said.

“We remain confident that we have the policies and procedures in place to enable us to promptly and appropriately investigate and adjudicate allegations of sexual misconduct,” Jette added. “We continuously review and update our policies in this area to ensure that they meet the needs of our community and are in line with best practices nationally.”

Primary Source: Jette’s statement

John’s case was one of several cases profiled in the book, “The Campus Rape Frenzy,” by K.C. Johnson and Stuart Taylor Jr. The book is highly critical of the changes adopted by colleges across the country to eliminate due process rights for students accused of sexual assault, and the Obama administration policies that encouraged them to do so.

Taylor discussed the book in an interview with American Enterprise Institute scholar Christina Hoff Summers, who is known on YouTube as “The Factual Feminist.”





During the interview, Taylor expressed his hope that the incoming Trump Administration would, “dismantle this sex bureaucracy machinery, at least at the federal level, that the Obama administration has created.”

Slate reporter Emily Yoffe wrote a great article, “The College Rape Overcorrection,” about university sexual assault policies.

The New York Times reported in July 2017 that Trump’s Education Department was reevaluating federal guidelines regarding how universities investigate allegations of sexual assault.

In September 2017, the Trump administration sent its own Dear Colleague letter to colleges and universities across the country.


In the letter, Candice Jackson, Acting Assistant Secretary for Civil Rights at the U.S. Department of Education, announced that the department was withdrawing the April 2011 Dear Colleague letter on sexual violence.


Candice Jackson was appointed Acting Assistant Secretary for Civil Rights by Education Secretary Betsy DeVos in April 2017. 

Jackson quoted statements written by law school faculty from the University of Pennsylvania and Harvard that said the 2011 letter placed, “improper pressure upon universities to adopt procedures that do not afford fundamental fairness,” which prompted universities to adopt policies that, “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” 

Secretary of Education Betsy DeVos announced in Sept. 2017 that her department will be speaking with the public about the policies it should adopt regarding sexual assault on college campuses, according to a press release. 


Education Secretary Betsy DeVos, shown above, was nominated by President Donald Trump.

After a rough confirmation hearing, DeVos was confirmed by the U.S. Senate, by a vote of 51 to 50, with Vice President Mike Pence providing the tie-breaking vote. 

"In the coming months, hearing from survivors, campus administrators, parents, students and experts on sexual misconduct will be vital as we work to create a thoughtful rule that will benefit students for years to come," DeVos said. “We also will continue to work with schools and community leaders to better address preventing sexual misconduct through education and early intervention."

In the meantime, the department has published interim guidelines on the topic for colleges and universities to follow.

Know Your IX, an organization that advocates for the rights of alleged victims of sexual assault, issued a press release criticizing the Trump administration’s withdrawal of the 2011 Dear Colleague letter.

“Today’s guidance allows schools to systematically stack campus investigations against survivors and push survivors out of school,” the organization stated. “The Department of Education is sending the message that they value survivors’ access to education less than that of the students who assault and abuse them.”

It appears the debate over federal and university policies concerning sexual assault is far from over. 

Judge Saylor’s Ruling


[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.


These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.]


Legal background

On April 9, 2015, John filed a lawsuit in federal court against Brandeis University. On June 23, 2015, John filed an amended complaint, which argued that Brandeis had conducted an unfair and illegal investigation.

The case was assigned to United States District Judge F. Dennis Saylor IV.

On July 14, 2015, Brandeis University filed a motion to dismiss the case.

On a motion to dismiss, a federal court assumes that the claims in a plaintiff’s complaint are true. Courts do this to determine whether a plaintiff could prove that a defendant broke the law, assuming all factual disputes are decided in the plaintiff’s favor.

If a plaintiff couldn’t win a case even if a judge or jury concluded all his factual claims were correct, there would be no reason to hold the trial in the first place.

At this stage in the case, the question before Judge Saylor was not whether Doe was responsible for sexual misconduct or whether Brandeis University had broken the law. Instead, Judge Saylor was merely deciding whether the case would be allowed to continue.

Saylor ruled on Brandeis’s motion to dismiss on March 31, 2016 with an 89-page opinion that was highly critical of the procedures the university had used to investigate the allegations against John Doe.



High stakes

In his opinion, Saylor, citing legal precedent, wrote that schools are obligated to provide “basic fairness” to students through their disciplinary proceedings. 

Judge Saylor, shown above, was nominated by President George W. Bush. Saylor was confirmed by the U.S. Senate in 2004. 

Saylor began his analysis regarding whether Brandeis provided Doe with “basic fairness” by explaining that there were high stakes for Doe in the outcome of his investigation.

“Here, the charges made by J.C. involved a serious subject matter: a claim of repeated acts of alleged sexual assault — indeed, purported sexual ‘violence’ — over a period of nearly two years. The consequences of a finding of ‘responsibility’ for those offenses are substantial indeed.” 

Specifically, Saylor said that Doe could become ineligible for campus housing, lose opportunities to participate in campus activities or campus employment, or even be suspended or expelled for violating Brandeis school rules.

Saylor said Doe’s future colleges or jobs could require disclosure of disciplinary actions Brandeis had carried out.

According to Saylor, the investigation could also have severe consequences for Doe’s public reputation.

“A Brandeis student who is found responsible for sexual misconduct will likely face substantial social and personal repercussions,” Saylor wrote. “It is true that the consequences of a university sanction are not as severe as the consequences of a criminal conviction. Nevertheless, they bear some similarities, particularly in terms of reputational injury. Certainly, stigmatization as a sex offender can be a harsh consequence for an individual who has not been convicted of any crime, and who was not afforded the procedural protections of criminal proceedings.”


 Judge Saylor examines the Dear Colleague letter

However, Judge Saylor said private universities, like Brandeis, deserve some deference in how they discipline student behavior.

“Courts must recognize and respect the strong interest of a private university in managing its own affairs,” Saylor said. “Furthermore, ensuring allegations of sexual assault on college campuses are taken seriously is of critical importance, and there is no doubt that universities have an exceedingly difficult task in handling these issues.”

Saylor also explained that many universities, not just Brandeis, have modified their policies for investigating and adjudicating allegations of sexual assault.

“In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for the schools to adopt punitive measures in response,” Saylor said.

According to Judge Saylor, many colleges were compelled to make these changes in response to a Dear Colleague letter sent by the Obama Administration in 2011.

“That process has been substantially spurred by the Office for Civil Rights of the Department of Education, which issued a ‘Dear Colleague’ letter in 2011 demanding that universities do so or face a loss of federal funding,” Saylor said. “Because the changes to the process were impelled in large part by the federal government, the issues presented here are not entirely unique, and not confined to a single campus.”

While Saylor was sympathetic to the goals of those wishing to prevent sexual assault and punish wrongdoers, he said that universities have adopted policies that eliminate valuable due process protections for students accused of misconduct. 

United States District Judge F. Dennis Saylor IV

“The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable,” Saylor said. “Whether the elimination of basic procedural protections — and the substantial increased risk that innocent students will be punished — is a fair price to achieve that goal is another question altogether.”

Saylor said these changes come at a high price for students accused of committing sexual assault. 

“Each case must be decided on its own merits, according to its own facts,” Saylor wrote. “If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.”

An investigation without due process

In his ruling, Judge Saylor said Brandeis’s special examiner’s process lacked several important due process protections.

“Here, Brandeis failed to provide a variety of procedural protections to John, many of which, in the criminal context, are the most basic and fundamental components of due process of law.”

Instead, Saylor said that the procedure, “substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

In his amended complaint, John said he was not provided information regarding the specific allegations made against him by J.C. before he was interviewed by the special examiner.

Saylor said that John’s lack of information may have significantly hindered his ability to defend himself.

“There is little practical difference between a school failing to inform the accused of the charge against him or, as here, having informed him of the formal charge, refusing to provide him with the specific factual conduct alleged to have given rise to the charge,” Saylor wrote. “This was not a dispute about a single isolated event; it involved a lengthy and apparently tangled relationship that went on for nearly two years. Brandeis’s failure to inform John of the details of the charges appears to have had a significant adverse effect on his ability to prepare a defense.”

A major factor in the special examiner’s analysis of the wake-up morning kisses and North Adams incident was that J.C.’s story remained consistent, while Doe’s story changed.

Saylor said these inconsistencies could merely be the result of the fact that Doe was unaware of the specific allegations against him.

“Such a discrepancy, however, is exactly what one would expect where one party is fully informed of the subject matter of the inquiry and the other remains ignorant, and has to surmise the specifics of the charges over the course of the investigation.”

In a legal brief filed by Brandeis University after Judge Saylor’s ruling on its motion to dismiss, the college denied that John had to piece together the allegations against him through the special examiner’s questions. Instead, Brandeis said John was informed of the specific factual allegations against him during the special examiner’s process.

Likewise, after the conclusion of Sanghavi’s investigation, Doe was not allowed to see her full report, until after his final appeals had been exhausted. Instead, he was provided with a copy of a summary of the report prepared by a Brandeis administrator.

Judge Saylor was critical of the university’s decision to withhold the report from Doe.

“He was thus forced to defend himself in the sanctions phase of the proceeding, and to prepare his appeal, without access to the very document in which his guilt was determined,” Saylor wrote. “During the sanctions and appeals part of the proceeding, the special examiner — and every administrator and faculty member who determined John’s fate — had access to the report. John, however, did not.”

Saylor said John was also harmed during this investigation because he was not allowed to have an attorney present during his testimony before the special examiner. Many are familiar with the Miranda warning often read by police to criminal suspects, which includes the line, “you have the right to an attorney.”

But according to Saylor, John did not have this right when he was being investigated by Brandeis.

“Brandeis did not permit John to have counsel in connection with the special examiner’s investigation, either to participate actively or to render passive advice,” Saylor wrote. “Nonetheless, Brandeis engaged an outside attorney, presumably with years of experience and training, to investigate and prosecute serious charges of sexual assault and other sexual misconduct. But it expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges.”

Doe didn’t claim in his amended complaint that he had been denied access to a lawyer during the process, and thus Brandeis did not respond to the claim in its legal briefs.

It is possible Saylor reached this conclusion based on a passage from the 2013-14 Brandeis student handbook which states that a student may have an attorney serve as his advisor if “co-existing criminal proceedings exist.”

None of the legal documents associated with Doe’s case mention any criminal charges related to J.C.’s allegations. This might have been the basis for Saylor’s conclusion that Doe was not allowed access to counsel.

Brandeis did not allow John to cross-examine J.C. or other witnesses interviewed by the special examiner. Saylor was critical of this Brandeis policy as well.

“Presumably, the purpose of that limitation was to spare J.C. the experience of being subject to cross-examination,” Saylor said. “While protection of victims of sexual assault from unnecessary harassment is a laudable goal, the elimination of such a basic protection for the rights of the accused raises profound concerns.”

Saylor quoted legal scholar John Henry Wigmore who said that cross-examination is, “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

Judge Saylor added that cross-examination is especially important in cases like Doe’s, where one of the most important issues is the credibility of an accuser.

“Here, there were essentially no third-party witnesses to any of the events in question, and there does not appear to have been any contemporary corroborating evidence,” Saylor said. “The entire investigation thus turned on the credibility of the accuser and the accused. Under the circumstances, the lack of an opportunity for cross-examination may have had a very substantial effect on the fairness of the proceeding.”

Nor was Doe allowed to cross-examine other witnesses interviewed by the special examiner. Saylor said this also made it harder for Doe to effectively defend himself.

Saylor also analyzed the role played by Special Examiner Elizabeth Sanghavi herself.

In a legal brief, Brandeis said it hired Sanghavi, “a neutral third-party attorney,” to serve as special examiner. Brandeis added that after the investigation, Sanghavi, “issued a thorough and balanced report in which she found that some, but not all, of J.C.’s allegations had merit.”

Judge Saylor was critical of giving Sanghavi such a large role in Doe’s investigation.

“Under the special examiner process, a single individual was essentially vested with the powers of an investigator, prosecutor, judge, and jury,” Saylor said. “The dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review, are obvious. No matter how well-intentioned, such a person may have preconceptions and biases, may make mistakes, and may reach premature conclusions.”

After the conclusion of the special examiner’s investigation, Brandeis Dean Lisa Boes provided John with a summary of Sanghavi’s report. Boes heard Doe’s response to the special examiner’s findings before concluding that Doe was responsible for the violations outlined in the report.

Doe was able to appeal this decision, reached only by two people, Sanghavi and Boes, through a university appeals board. But, as Saylor explained, the appeals board could only consider certain aspects of the proceeding investigation.

“The special examiner process, as set forth in the 2013-14 handbook permitted an appeal on only four grounds: fraud, ‘denial of rights under this process,’ ‘procedural error,’ or ‘the claim of new evidence not previously available, which would have materially affected the decision,’ Saylor said. “Conspicuously absent from that list is the ability to appeal on the ground that the special examiner’s decision was not supported by the evidence, or that it was otherwise unfair, unwise, or simply wrong. The special examiner, for all practical purposes, had the first and only say in determining John’s guilt.”

Another policy that played a key role in the outcome of Doe’s case was Brandeis’s decision to use the “preponderance of the evidence” standard to decide sexual assault cases.

But for, “virtually all other forms of alleged misconduct at Brandeis,” Saylor said Brandeis used the stricter standard of “clear and convincing evidence.”

The use of this lower standard, by itself, was not necessarily problematic, Saylor said, as the standard is often used in civil cases, even to decide important matters. Saylor was concerned by this policy, however, because of other policies adopted by Brandeis to investigate allegations of sexual assault.

“The lowering of the standard appears to have been a deliberate choice by the university to make cases of sexual misconduct easier to prove — and thus more difficult to defend, both for guilty and innocent students alike,” Saylor wrote. “The lower standard may thus be seen, in context, as part of an effort to tilt the playing field against accused students, which is particularly troublesome in light of the elimination of other basic rights of the accused.”

Faulty reasoning

Judge Saylor was critical of the reasoning Special Examiner Sanghavi used in her report.

Saylor said Sanghavi was wrong to conclude that John was guilty of committing “violence” by waking J.C. in the morning with kisses and continuing to kiss him after he said he wanted to go back to bed.

“To reach that result, she essentially stitched together a series of broad generalizations — kissing is a sexual activity; a sleeping person is physically incapacitated and therefore cannot give consent; the existence of a relationship is not relevant to consent; sexual activity without consent is sexual misconduct; sexual misconduct is a form of violence — to reach a conclusion that seems at odds with common sense and the ordinary meanings and definitions of words.”

Saylor was also critical of Sanghavi’s analysis that J.C.’s excessive use of alcohol after his breakup with Doe bolstered the credibility of J.C.’s claims that John had sexually assaulted him.

“The special examiner may have engaged in a classic post hoc fallacy, reasoning that because the alcohol abuse occurred after the breakup of the relationship, it must have been caused by the relationship,” Saylor said. “J.C.’s abuse of alcohol may have been a direct product of sexual misconduct by John, or it may have been the product of a variety of different factors.”

But Saylor’s biggest critique of Sanghavi’s reasoning was reserved for the lack of weight Saylor believed the special examiner placed on the significance of John and J.C.’s romantic relationship.

“She substantially discounted the importance of the fact that the two students were in a romantic relationship for 21 months; that they appeared happy and comfortable together; and that J.C. had never reported any sexual misconduct to anyone during that period,” Saylor said. “There are few things in life as complex as a long-term relationship. It is perhaps impossible to expect anyone to plunge into the labyrinth of a lengthy emotional and sexual relationship between two young adults and hope to emerge with a clear understanding of what happened and why.”

In her report, Sanghavi wrote, “sexual misconduct does occur in dating relationships and such conduct can occur for years,” which lead her to conclude, “The fact that Doe and J.C. were in what appeared to be a happy dating relationship and J.C. did not inform friends about his allegations in the relationship, therefore, does not bolster Doe’s credibility or weaken J.C.’s credibility.”

Judge Saylor agreed that sexual misconduct can occur in long-term relationships, but he said this fact doesn’t mean the existence of a relationship is meaningless to the context in which Doe’s alleged misconduct would have taken place.  

“The question of consent is strongly affected by the nature of the relationship between the parties,” Saylor said. “It is absurd to suggest that it makes no difference whatsoever whether the other party is a total stranger or a long-term partner in an apparently happy relationship.”

Saylor said romantic partners often learn each other’s preferences, allowing non-verbal consent to sometimes take place before sexual interactions.

“Normally, over the course of a long relationship, the parties develop implicit and explicit understandings that affect their behavior, including certain forms of non-verbal consent. Actions that might be inappropriate between strangers or casual acquaintances may be viewed entirely differently by long-term partners,” Saylor wrote. “Again, the existence of a relationship does not give someone the right to commit sexual assault. But neither is it meaningless and irrelevant when evaluating the question of consent.”

Conclusion

Saylor concluded that Doe plausibly alleged that Brandeis had denied Doe the “basic fairness” to which he was entitled. Saylor allowed Doe’s lawsuit against Brandeis to continue. 

Wednesday, February 14, 2018

Consequences


[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.

These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.]


Elizabeth Sanghavi sent her special examiner’s report to Lisa Boes, Dean of Academic Services at Brandeis University, on April 16, 2014.

On April 24, 2014, Boes read John a summary she had prepared of the special examiner’s conclusions.

According to John’s amended complaint, he requested a copy of the special examiner’s report during this meeting. John’s request was denied, his complaint stated.

Nor was John was given a copy of the report at any time while the university decided his case, according to his complaint.

However, both John and Brandeis University agreed, through separate legal briefs, that the university provided John with a copy of Boes’s summary.


Primary Source: Lisa Boes’s Summary  

Thus, John was required to defend himself against a report he wasn't allowed to read, according to his amended complaint. 

In a legal brief, Brandeis University agreed that John asked Boes, and others, for a copy of the special examiner’s report and that the university denied these requests. Brandeis admitted that neither Doe nor J.C. were allowed to read the report while their case was pending. 

Brandeis University was named after Louis Dembitz Brandeis, the first Jewish justice on the U.S. Supreme Court. Brandeis sports teams are known as the Brandeis Judges. 

According to John’s amended complaint, in response to the movie incident finding, John provided Boes with the names of witnesses who would have testified that J.C. humorously recounted the movie incident to mutual friends throughout his relationship with John. Boes declined to forward those names to the special examiner for further fact-finding, according to the complaint.

In a legal brief, Brandeis University denied that John provided Boes with these names.

On May 2, 2014, John responded to Boes’s summary by supplying additional facts and names of additional witnesses to challenge the conclusions Sanghavi reached in her special examiner’s report, according to the amended complaint.

Later that month, Boes informed John that, based on her review of the special examiner’s report and John’s response, she agreed with the special examiner’s findings on all six charges.

Boes convened a three-person panel to recommend what John’s punishment should be, according to John’s amended complaint.

The panel decided John should receive a disciplinary warning, which required him to receive sensitivity training, according to the complaint.

Both John and Brandeis University agreed, through separate legal briefs, that John received a disciplinary warning and that this was the lightest possible sanction a student found guilty of sexual misconduct could have received.

The online news organization HuffPost interviewed J.C. about Brandeis’s investigation. HuffPost reporter Tyler Kingkade wrote an article with the headline, “Brandeis University Punishes Sexual Assault with Sensitivity Training,” which was published June 11, 2014.

The article stated that Doe was found responsible for committing sexual assault, taking advantage of incapacitation, sexual harassment, physical harm, and invasion of personal privacy. This was essentially correct, although Doe was technically found guilty of sexual misconduct and lack of consent, rather than sexual assault, under the Brandeis student handbook.

The article did not, however, include any description of the actual conduct Doe was found guilty of committing, nor did it include the fact that the events in question occurred during and immediately prior to a romantic relationship between John and J.C.

John’s actual name was not used in the article.

According to the HuffPost article, J.C. was taken aback when he learned what John’s punishment would be.

“Honestly, I thought it was a joke. Did they send me the wrong letter? I read the charges, and almost nothing was happening — just a slap on the wrist.”

J.C. said filing a complaint against John, and the subsequent process, was, “probably the worst experience of my entire life, and one of the hardest things I’ve ever done. I have a lot of anger, and I’m not normally an angry person.”

Nonetheless, J.C. said that he felt he needed to act to address the “scary” problem of sexual assault.

“I just needed to do something about it,” he said. “I needed to let people know this is happening.”

Ellen de Graffenreid, Senior Vice President for Communications at Brandeis University, told HuffPost that the university’s sexual assault policies attempt to balance the need to address sexual violence with maintaining a fair process for accused students.

“Brandeis strives to be a leader in combating sexual violence and will use every means at our disposal and consistent with our values to do so,” de Graffenreid said. “At the same time, we join colleagues across the country struggling to balance our commitment to support survivors, with valuing fairness, integrity and proportionality in our conduct systems.”

De Graffenreid defended the punishment Doe received.

“Research indicates that punitive measures are unlikely to be a deterrent to other offenders,” de Graffenreid said, “and that particularly harsh mandatory sanctions can have the impact of discouraging survivors from coming forward.”

John’s punishment was light compared to what it could have been. Nevertheless, through his amended complaint, John argued that his disciplinary warning carried serious long-term consequences.

According to the complaint, John’s permanent education record states that he was responsible for committing serious sexual transgressions: sexual misconduct, lack of consent, taking advantage of incapacitation, sexual harassment, physical harm, and invading personal privacy — without any explanation of the specific conduct the special examiner concluded John actually committed.

In a legal brief, Brandeis University denied that John’s educational record contains a note stating that he was found responsible for violating these school rules.

Through his amended complaint, John said he went to college with the goal of getting into law school and pursuing a career in government or public service.

According to his complaint, however, these goals will be considerably more difficult for him to achieve due to this note on his educational record.

“John will now have to disclose and defend himself against his deeply blemished university record to every law school and professional graduate school to which he applies, government and public service employers, other prospective employers, colleagues and friends who get wind of what happened, and should he run for public office, the public.”

The complaint added that through this note on his academic record, “Brandeis has effectively labeled John as a predatory sexual offender.”

Brandeis denies these allegations from John’s amended complaint.

A university appeals board rejected John’s appeal of the university’s findings on June 20, 2014. Four days later, Boes notified John of the final outcome in his case.

According to his amended complaint, John was finally given a copy of the special examiner’s report in July 2014, after the appeals panel declined his appeal.


Everything falls apart

Both John and Brandeis agreed, through separate legal briefs, that J.C. shared the university’s findings with third parties.

In June 2014, J.C. posted Brandeis University’s final outcome letter about the case to his Facebook page, and encouraged others to share it, according to John’s amended complaint. Although J.C. blacked out John’s name, J.C. identified John by name to students and to media reporters offline, the complaint stated.

In a legal brief, Brandeis University agreed that J.C. posted a redacted version of the its final outcome letter on his Facebook page.

Both John and Brandeis agreed, in separate legal briefs, that J.C. commented on the Facebook post about the letter that John was his “attacker” who had committed, “multiple forms of rape.”

According to John’s amended complaint, a few days later, J.C. again posted on his Facebook page, repeatedly referring to John, without using John’s real name, as J.C.’s “attacker,” calling John a “sexual assailant,” and claiming that John had been given a “freebie” for “rape.”

In a legal brief, Brandeis University said it lacked sufficient information to admit or deny these allegations from John’s amended complaint.

In its article about the case, Huffpost wrote about J.C.’s decision to talk about his experiences on Facebook.

“Frustrated with the outcome of his own case, J.C. posted about it on Facebook and began receiving a flood of messages from other survivors at Brandeis,” the article stated. “It was frightening, he said, how pervasive the issue appeared to be.”

According to John’s amended complaint, in Sept. 2014, J.C. posted on his Facebook page a photograph of himself wearing a poster board that stated he had been sexually assaulted. J.C. stated he would wear the poster around campus every day until he graduated, whether or not his “attacker” was expelled, according to the complaint.

Also, according to John’s complaint, another Brandeis student loudly called John a “rapist” in front of a group of Brandeis students, and the Democratic nominee for Massachusetts Attorney General, at a National Organization for Women fundraiser.

In Oct. 2014, John received a call from his internship employer for a highly-ranked public official, informing John that the employer had been “made aware” of his situation at Brandeis from “several sources” and that John was fired, according to his complaint.

That same internship employer had promised to find John a permanent job after he graduated. The employer withdrew its promise, according to the complaint, and another prospective employer with ties to Brandeis stopped responding to John’s emails after promising to hire him for the fall semester.

In a legal brief, Brandeis University said that it lacked sufficient information to admit or deny these allegations from John’s amended complaint.

John’s amended complaint alleges, “upon information and belief,” that Brandeis administrators “leaked information about the special examiner’s findings to John’s internship employer and prospective employer or recklessly failed to exercise adequate safeguards to keep the information strictly confidential as required under federal privacy laws and Title IX regulations.”

In a legal brief, Brandeis University denied leaking this information.

Under the Obama administration’s 2011 Dear Colleague letter, colleges are allowed to share the results of a sexual assault investigation with third parties.

“A postsecondary institution may disclose to anyone — not just the alleged victim — the final results of a disciplinary proceeding if it determines that the student is an alleged perpetrator of a crime of violence or a non-forcible sex offense, and with respect to the allegation made, the student has committed a violation of the institution’s rules or policies.”

The letter also states that universities are forbidden from preventing a victim from talking about the results of the school’s investigation.

“Postsecondary institutions may not require a complainant to abide by a nondisclosure agreement, in writing or otherwise, that would prevent the redisclosure of this information.”

According to John’s complaint, the investigation and the events that followed took a serious toll on John.

“Brandeis's and J.C.'s egregious conduct has caused John severe emotional distress, including panic attacks leading to suicidal ideation on at least two occasions, loss of weight and appetite, a complete inability to sleep through the night, and anxiety and depression requiring psychological counseling.”

According to John’s complaint, after these events, John asked Brandeis University to re-open his appeal, in part because John had gathered new evidence and witnesses after receiving the special examiner’s report.

According to the complaint, Brandeis denied John’s request.

Through his amended complaint, John stated he “found the environment on campus so hostile and toxic that he accelerated his graduation date to leave a university that betrayed his trust.”

John graduated from Brandeis University on Feb. 1, 2015.

On April 9, 2015, John filed a lawsuit in federal court against Brandeis University. On June 23, 2015, John filed his amended complaint, which argued that Brandeis’s investigation had been unfair and illegal.

John Doe’s lawsuit against Brandeis University



John Doe’s 52-page amended complaint was written by his attorneys Michael Schneider and Patricia Hamill. 

Hamill is a lawyer who works for Conrad O’Brien, a law firm that represents students who are found responsible by universities for sexual misconduct. 

Attorney Patricia Hamill, shown above, represented John during his lawsuit against Brandeis University.

Hamill explained her law firm’s work defending students in a press release about Doe’s lawsuit against Brandeis.

“Conrad O’Brien represents students who have been expelled, suspended, or otherwise disciplined by their colleges following campus disciplinary proceedings for alleged sexual misconduct, which are conducted pursuant to Title IX-related guidelines issued by the OCR,” Hamill stated.

“The firm has undertaken such representations on behalf of accused male students, and has filed lawsuits on the basis that the college breached its contractual obligations with respect to its handling of the sexual misconduct allegations, conducted a fundamentally unfair process, and discriminated against the student on the basis of sex under Title IX,” Hamill continued. “The issues in these representations are cutting edge, especially with respect to the claim of ‘reverse Title IX’ violations.”

Doe’s amended complaint argued that there was scant evidence to back up J.C.’s allegations and Sanghavi’s subsequent conclusions.

According to the complaint, there wasn’t, “a trace of physical or other corroborating evidence that John ever physically harmed or sexually harassed J.C.”

“There were no medical or hospital records, 911 calls, reports to campus police or law enforcement, witnesses to any incidents, or complaints by J.C. to friends, relatives, or Brandeis personnel during the entire relationship,” the complaint continued.

Through a legal brief, Brandeis University denied these claims from John’s amended complaint.

Doe disagreed with the ways in which Sanghavi decided to define key terms in the Brandeis student handbook.

Doe’s complaint stated that the special examiner’s findings were, “based on novel notions of consent, sexual harassment, and physical harm not specified in the [Brandeis student] handbook and that are at odds with traditional legal and cultural definitions.”

The complaint added that, “the findings completely ignored the context of a romantic, dating relationship.”

According to the complaint, Sanghavi, “elevated commonplace, everyday interactions in a nearly two-year consensual relationship into serious sexual transgressions,” and that “under the special examiner’s reasoning, sexual misconduct among couples in a long-term relationship is an everyday occurrence.”

In a legal brief, Brandeis University denied this claim from John’s complaint.


In a separate legal brief filed on behalf of Brandeis, the university’s attorney, Antonio Moriello, replied to these critiques by stating that Sanghavi’s analysis was informed by passages in the Brandeis handbook that Doe was required to follow.

Moriello quoted from the 2013-2014 Brandeis University student handbook which states, “prior sexual activity or an existing acquaintanceship, friendship, or other relationship that has been sexual in nature does not constitute consent for the continuation or renewal of sexual activity.”

Moriello said while Doe may disagree with relevant portions of the university handbook, Doe was nonetheless required to follow them as a condition of his attendance at Brandeis.

“Doe repeatedly alleges that the findings against him are ‘absurd,’ ‘defied common sense,’ ‘ludicrous,’ and ‘arbitrary and capricious.’ The common thread running through all of Doe’s claims is that, because Doe and J.C. had a dating relationship, consent to any and all sexual activity must be assumed,” Moriello stated.  “That is not, however, the standard set forth in the R&R. Although Doe does not subscribe to these principles, they governed the accusations that J.C. made against Doe, and the special examiner was required to apply them.”

John’s amended complaint also alleged that the special examiner’s process used in John’s case lacked critical due process protections.

The complaint stated that during the investigation, Doe was inadequately informed of the allegations against him.

“The Special Examiner asked John about ‘wake up morning kisses,’ and whether John had ‘slept on the floor’ during a visit he and J.C. had made to J.C.’s father’s house,” the complaint stated. “John was forced to try to recollect events over the course of the relationship that were not imprinted in his memory because they were unremarkable.”

Regarding the movie incident, the amended complaint stated that, “it defied reason for the special examiner to have concluded that John’s ‘first move’ leading to a 21-month consensual relationship was sexual assault.”

Regarding the North Adams incident, Sanghavi relied on inconsistencies in John’s testimony about whether or not he slept on the floor.

The complaint stated that using this as a deciding factor in whether John had committed sexual misconduct was, “nothing more than a manufactured ‘inconsistency’ elicited through a patently unfair interrogation process.”

Doe said that he was at a disadvantage in maintaining consistent answers during the investigation because in the special examiner’s process, “although the accuser knows his or her story before the investigation even begins, the accused is left in the dark concerning the facts, never knowing what the accuser and witnesses actually have said, except as filtered through the special examiner.”

In a legal brief, Brandeis University denied this claim and said John was informed of the specific factual allegations against him during the special examiner’s process.

As a result of John Doe’s lawsuit, Brandeis’s investigation would be subject to scrutiny by a federal judge. 



P.S. Happy Valentine's Day. 

Wednesday, February 7, 2018

Special Examiner’s Conclusions

[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.

These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.]


After speaking at length with both Doe and J.C., Special Examiner Elizabeth Sanghavi weighed the available evidence to decide whether Doe was guilty of committing various violations of the Brandeis student handbook. This article explains Sanghavi’s conclusions and the evidence she used to reach them.


J.C.’s Credibility

Sanghavi began by evaluating the general credibility of J.C. and John Doe.

Sangavi concluded that J.C. was credible based on his demeanor and consistency. She said that he provided consistent statements regarding each alleged incident, and didn’t waiver from his initial descriptions.

Sanghavi said J.C also consistently described feeling pressure in the relationship, the sense that telling Doe that J.C. was not interested in engaging in sexual activity was often ineffective, and the belief that it was easier to placate Doe by engaging in activities than to continue to object.

Sanghavi further concluded that J.C.’s allegation that he experienced unwanted sexual activity was credible given his behavior after he broke up with Doe.

Specifically, J.C. began drinking after he broke up with Doe, which he had not done previously. J.C. also told the special examiner that on the weekends, he “drinks too much,” by having 12 to 14 drinks.

Sanghavi explained that a study of physical and sexual abuse found that past or recent occurrence of assault is associated with significantly increased rates of reported alcohol use.

In addition, J.C. began seeing a mental health professional in January 2014 for treatment related to sexual assault. Sanghavi said J.C.’s new use of alcohol and recent seeking of mental health services strengthened his credibility regarding his allegations that he experienced unwanted sexual conduct.

Doe questioned J.C.’s credibility because J.C. told Doe that he was not strong-willed or forceful enough when they broke up. Doe believed that J.C.’s allegations that Doe engaged in sexual activity without consent contradicted this statement. Sanghavi said J.C. clarified that he meant that Doe did not “stick to his guns” during discussions.

Two people interviewed by the special examiner also believed from their conversations with J.C. that his comments regarding Doe not being strong-willed referred to the fact that Doe gave in during discussions, instead of standing up for his opinion. As a result, Sanghavi concluded that J.C.’s statement that Doe was not strong-willed or forceful enough did not weaken J.C.’s credibility as J.C. was referring to being forceful during discussions, not during sexual activity.

Doe’s Credibility

Sanghavi also concluded that Doe was a credible participant in the interviews conducted for this investigation based on his demeanor and consistency.

Several people interviewed by the special examiner implied that Doe was more credible than J.C. because the parties seemed happy and comfortable together. To support this, Doe presented pictures in which Doe and J.C. appeared to be happy and Facebook comments that suggested a normal, happy dating relationship.

In her report, however, Sanghavi stated that, “sexual misconduct does occur in dating relationships and that such conduct can occur for years. Further, studies have noted that individuals likely underreport incidents of intimate partner violence to friends and family due to a number of reasons, including shame and embarrassment, and may underreport because they do not perceive unwanted sexual contact with an intimate partner as coercive.”

Sanghavi further stated, “the fact that Doe and J.C. were in what appeared to be a happy dating relationship and J.C. did not inform friends about his allegations during the relationship, therefore, does not bolster Doe’s credibility or weaken J.C.’s credibility.”

Based on the assessment above, Sanghavi concluded that J.C.’s general allegation of having experienced unwanted sexual conduct and harassment was credible.

Next, we will examine Sanghavi’s analysis of each of the allegations that were outlined in the previous article.


Movie Incident

Sanghavi began her examination of the movie incident by determining what facts were common between J.C.’s and Doe’s accounts.

Both parties agreed that during the movie incident, which took place in Sept. 2011, Doe placed J.C.’s hand on Doe’s penis. Sanghavi stated that Doe did not ask whether he could engage in this conduct and thus did not seek consent prior to putting J.C.’s hand on Doe’s penis.

Doe said that he only kept his hand on J.C.’s for a few seconds and then J.C. willingly kept his hand on Doe’s penis. According to J.C., he did not willingly keep his hand on Doe’s penis, but rather kept it there because Doe kept his hand on J.C.’s hand and because J.C. did not want to alert his friend who was present during the movie of what was happening.

Sanghavi stated that J.C. and Doe had not hooked up and were not dating at this point.

Brandeis outlined its rule against sexual misconduct in section 3.1 of its 2011-12 student handbook.

“Students are prohibited from engaging in sexual misconduct. Sexual contact that occurs without the explicit consent of each student involved may be considered sexual misconduct. Consent must be clearly communicated, mutual, non-coercive, and given free of force or threat of force.”


The handbook also states that “consent must be sought and clearly understood and communicated before engaging in any sexual activities.”

Unless otherwise noted, the Brandeis student policies mentioned in this article remained the same, as relevant to the allegations against Doe, from Sept. 2011 through May 2013.

Sanghavi based her conclusions regarding the movie incident and the bathroom incidents in part on another interaction involving Doe and a female student.

The female student told the special examiner that in the fall of 2011, Doe grabbed her breasts on several occasions. The student said Doe did not ask if he could touch her breasts. Doe admitted in an interview that he had grabbed her breasts, and was unable to explain why he had done so. Instead, he said that he had done it as a joke.

Therefore, Sanghavi concluded that at about the same time as the movie incident, Doe engaged in sexual conduct without first obtaining clearly communicated consent from another student. Sanghavi said this indicated Doe’s general lack of understanding regarding consent and added to the credibility of J.C.’s description of the movie incident.

Based on a preponderance of the evidence, Sanghavi concluded that Doe violated Section 3.1 when he placed J.C.’s hand on Doe’s penis. Sanghavi said Doe did not seek consent or obtain explicit consent prior to putting J.C.’s hand on his penis, nor could Doe have understood, from past conversations or otherwise, that J.C. would provide clear consent.

Bathroom Incidents

J.C. alleged that throughout his relationship with Doe, which took place from Oct. 2011 through July 2013, Doe actively looked at J.C.’s penis when they were in the bathroom together, despite J.C.’s objections. 

Doe admitted that he did look at J.C.’s penis when they were in the bathroom together, but that Doe did it as a joke. Doe said J.C. never expressed any discomfort with Doe’s actions in the bathroom. 

J.C. alleged that Doe’s conduct violated J.C.’s personal privacy.

Brandeis’s rule regarding personal privacy can be found in section 2.1e of the 2011-2012 Brandeis student handbook.

“A student is expected and required to respect the integrity and personal rights of individuals. The University will not tolerate any behavior that invades personal privacy.”

Sanghavi said Doe’s testimony that touching a female student’s breast was a joke suggested Doe does not effectively distinguish between a joke and inappropriate behavior that invades someone else’s personal privacy. Sanghavi concluded that the preponderance of the evidence indicated Doe invaded J.C.’s privacy by looking at J.C.’s penis when J.C. used the bathroom.


Sexual conduct while J.C. was sleeping

J.C. said that Doe engaged in sexual activity with J.C. while J.C. was sleeping. J.C. said this conduct included humping and that sometimes Doe had his hand on J.C.’s penis. J.C. said that he asked Doe to stop, but that Doe continued anyway.

Doe said that he didn’t wake up J.C. with sexual activity, but that Doe did sometimes wake up J.C. by kissing him.

During one interview with Sanghavi, Doe said that if he kissed J.C. in the morning, sometimes J.C. said that he wanted to go back to sleep. Doe recalled that when J.C. said this, Doe sometimes replied, “Seriously?” and continued kissing J.C., unless J.C. indicated again that he really did want to go back to bed.

During another interview, Doe told Sanghavi that when he woke up J.C. by kissing him, J.C., “never” said that he wanted to go ack to bed. When Sanghavi pointed out the inconsistency between this comment and Doe’s statement in the earlier interview, Doe said that later in the morning, around 10:00 AM, J.C. would never say that he wanted to go back to bed, but that if Doe tried to wake him up earlier, at about 8 AM, J.C. might have said that he wanted to go back to bed.

Due to Doe’s changing answers with regards to the wake-up morning kisses, Sanghavi concluded his statements with regards to this allegation did not appear credible. In contrast, Sanghavi said J.C. provided consistent descriptions and responses regarding waking up to sexual conduct by Doe. As a result, Sanghavi concluded J.C.’s description was more credible than is Doe’s.

Sanghavi said that the allegations concerning sexual conduct while J.C. was sleeping implicated sections 3.1, as explained above, as well as sections 3.2 and 3.3 of the 2011-2012 Brandeis student handbook, each of which relates to sexual consent.

Brandeis’s rule concerning taking advantage of incapacitation can be found in section 3.2.

“Causing incapacitation or intoxication, or taking advantage of someone’s incapacitation or intoxication for the purpose of engaging in sexual activity is considered sexual misconduct.”

Lack of consent to sexual activity is a rule outlined in section 3.3 of the Brandeis handbook.

“Consent or lack of consent may be communicated verbally or through actions but if a refusal to engage in sexual activity is communicated at any time then the activity must cease immediately. […] Prior sexual activity or an existing acquaintance, friendship, or relationship that has been sexual in nature does not constitute consent for the continuation or renewal of sexual activity.”

Sanghavi stated that under sections 3.1, “sexual misconduct” and 3.2, “taking advantage of incapacitation” a student who is incapacitated cannot give consent to sexual activity.

“Sleep is a state of incapacitation. As a result, based on the preponderance of the evidence, Doe violated Sections 3.1 and 3.2 by initiating sexual activity with J.C. when he was sleeping,” Sanghavi stated. “Further, under 3.3 [lack of consent to sexual activity], sexual activity must cease immediately if a refusal to engage in sexual activity is communicated at any time. As Doe did not stop when requested to by J.C., Doe also violated Section 3.3.”

Even if Doe’s versions of events were true, Sanghavi said Doe still would have been in violation of Brandeis’s sexual misconduct and lack of consent to sexual activity rules. 

“Note also, that even if the description provided by Doe were true, he would have violated Sections 3.1 and 3.3 as he stated that he continued kissing J.C. even after J.C. indicated lack of consent by stating that he wanted to go back to bed. Doe did not obtain clearly communicated consent to continue kissing J.C. required under 3.1,” Sanghavi said.

“Further, based on his own words, Doe sometimes required J.C. to indicate his lack of consent twice before stopping the sexual activity, in violation of 3.3 which requires sexual activity to stop immediately after an individual has indicated a refusal to engage in the activity. Therefore, under either J.C. or Doe’s account, Doe violated the Sexual Responsibility Section of the Rights and Responsibilities handbook,” Sanghavi concluded.  


Performing Oral Sex on J.C.

According to J.C., Doe performed oral sex on him approximately three to four times despite J.C.’s objections.

Doe denied this, saying that if J.C. declined Doe’s request to perform oral sex on J.C., Doe would say, “Seriously?” and would move away from J.C. If J.C. replied, “No,” Doe said he would not continue.

J.C. said one of these incidents occurred in May 2013 when Doe was visiting J.C.’s father’s home in North Adams, Massachusetts. According to J.C., after Doe tried to perform oral sex on J.C. despite his objections, J.C. asked Doe whether he understood that this was sexual assault.

During the first interview in which Sanghavi discussed the North Adams trip with Doe, Doe stated that he remembered the trip being “normal.” Doe said that J.C. did not accuse him of sexual assault during this trip. During this interview, Doe did not discuss lying on the floor.

In a follow-up interview, when Sanghavi specifically asked about lying on the floor, Doe initially said that he did not remember if he slept on the floor, then said that he thought he slept on the ground due to heat, not an argument.

Sanghavi concluded that Doe’s lack of memory regarding whether he slept on the floor was not credible.

“During this investigation, in the many conversations regarding sleeping arrangements in Doe and J.C.’s relationship, Doe had never previously mentioned moving to or sleeping on the floor,” Sanghavi said. “Even when, as part of this investigation, Doe was asked specifically what he did when he was hot, when sleeping with J.C., he did not mention that he moved to the floor. Rather, he stated that he stopped cuddling, rolled over to an adjoining bed, or went on [moved to the] top of the sheets.”

Sanghavi continued, “It is likely, therefore, that moving to the floor due to temperature control issue was an unusual event and that, therefore, Doe would have remembered if he did move to or sleep on the floor during the North Adams visit. The inability of Doe to recall whether he moved to the floor during his North Adams visit weakens Doe’s credibility regarding his response to J.C.’s allegation that Doe performed oral sex on him without consent.”

In contrast, Sanghavi found J.C.’s claims with regards to this allegation more credible because they were more consistent.

As a result, Sanghavi concluded J.C. never clearly communicated that he wanted Doe to perform oral sex and that when J.C. specifically asked Doe to stop, Doe did not.

Sanghavi concluded, based on a preponderance of the evidence, that Doe violated sections 3.1, sexual misconduct, and 3.3, lack of consent to sexual activity, of the 2012-2013 Rights and Responsibilities handbook, which in all relevant ways match the text of these rules listed above for the 2011-2012 handbook.


Physical violence

To find a Brandeis student responsible for causing physical harm, Sanghavi said the preponderance of the evidence must indicate that physical harm took place.

Section 2.1d of the 2011-2012 Brandeis student handbook states, “a student is expected and required to respect the integrity and personal rights of individuals. The university will not tolerate any behavior that physically harms (some examples: hitting, pushing, or physical altercations/violence of any kind.)”

The 2012-2013 student handbook added the phrase, “or is considered unwanted physical contact” after “behavior that physically harms” and before the parenthetical examples.

The handbook does not define violence. So Sanghavi turned to the definition of sexual violence provided by the U.S. Department of Education in its 2011 Dear Colleague letter.

The letter defines sexual violence as, “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.”

Sanghavi concluded that the preponderance of the evidence indicated that Doe engaged in sexual acts against J.C.’s will, and thus that Doe had committed violence against J.C., and that Doe had engaged in unwanted physical contact with J.C.

Because of this analysis, Sanghavi concluded that Doe had physically harmed J.C. due to Doe’s actions during the movie incident, by engaging in sexual activity while J.C. slept, and by performing oral sex on J.C. without consent during the North Adams visit.

Sexual harassment

J.C. also accused Doe of committing sexual harassment due to Doe’s alleged misconduct throughout their relationship.

Conduct can be considered sexual harassment under the 2011-2012 Brandeis student handbook if it has “the purpose or effect of unreasonably interfering with a person’s education or work performance by creating an intimidating, hostile or offensive environment in which to work, study or live; or otherwise adversely affect a person’s employment or educational opportunities.”

The Brandeis handbook lists examples of sexual harassment and states, “depending on the circumstances, conduct which may constitute sexual harassment includes, but is not limited to: unwelcome sexual conduct” and “persistent unsolicited and unwelcome invitations for dates, encounters, or pressure to engage in sexual activity of an implied or explicit nature.”

Sanghavi concluded there was sufficient evidence that Doe engaged in unwelcome sexual conduct. The special examiner also concluded that Doe had engaged in persistent unwelcome pressure to engage in sexual activity.

“Throughout this investigation, J.C. made statements indicating that Doe pressured him to engage in sexual activity. J.C.’s allegation of feeling pressured is consistent with Doe’s own description of incidents in which he stated ‘Seriously?’ after J.C. indicated lack of interest in sexual activity (i.e. when engaging in sexual activity in the morning). When attempting to perform oral sex on J.C., Doe’s statement that he was moody and sulky if J.C. did not want to engage in sexual activity also corroborated J.C.’s statements that Doe pressured him to engage in sexual activity.”

J.C. told the special examiner that he had to drop a course due to stress related to Doe’s conduct. Sanghavi concluded, based on a preponderance of the evidence, that Doe’s behavior had the effect of interfering with J.C.’s education, and thus, that Doe was guilty of sexually harassing J.C.


Other allegations considered by the special examiner

Sanghavi also considered seven other allegations of sexual misconduct made by J.C. against Doe. Sanghavi concluded that for these allegations there was insufficient information to conclude, based upon a preponderance of the evidence, that Doe had engaged in misconduct.

The special examiner considered two allegations made by Doe against J.C. 

Doe alleged that his personal privacy was invaded through the filing of J.C.’s initial complaint because: Doe had to leave his dorm room and temporarily live in the faculty lodge, a no contact order requiring Doe to avoid certain parts of campus was issued, Doe was removed as the student representative of the Board of Trustees, and Doe was humiliated due to the allegations.

Sanghavi stated that, “individuals within Brandeis have a right under university policy to bring complaints regarding unwanted sexual conduct. Universities are required under Title IX to have procedures that allow community members to file such complaints. Regardless of the ultimate findings (e.g. even if a university determines that the allegations are not supported by evidence), universities are required to complete investigations in order to determine whether school policies have been violated.”

Sanghavi continued, “Under Title IX, universities may take interim measures while investigations are in process, such as changing an individual’s housing or implementing no contact orders. Universities, including Brandeis, would be unable to meet their Title IX obligations if they could not take interim measures or conduct investigations.”

Doe also alleged that J.C. violated Brandeis rules by filing false claims against Doe.

Sanghavi stated that her investigation concluded that Doe was responsible for misconduct under sections of the Brandeis student handbook. Sanghavi added that even if it couldn’t be proven that Doe had engaged in misconduct, that wouldn’t necessarily prove that J.C. had filed false claims against Doe.

In summary, Sangahavi concluded that Doe had broken Brandeis university rules by committing sexual misconduct, taking advantage of incapacitation, lack of consent to sexual activity, sexual harassment, causing physical harm, and invasion of privacy.

Sanghavi sent her completed report to a Brandeis dean on April 16, 2014. It was now up to Brandeis University to decide whether to accept Sanghavi’s conclusions, and if so, to determine what John’s punishment would be.