Commentary

[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.]

Up until now, my coverage of John Doe v. Brandeis University consisted primarily of reporting based on primary sources. This editorial, however, contains my opinions on the case and the larger policy debate regarding how colleges should handle allegations of sexual assault. 

Even if you disagree with my positions on these matters, I hope you still find value in my reporting and analysis.

I have spent the past year researching the debate surrounding the Obama Administration’s 2011 sexual violence Dear Colleague letter. I closely examined the primary source documents involved in John Doe’s case and used several neon highlighters to mark passages I wanted to use in my reporting.

I have spent a lot of time thinking about the issues involved in this case. Colleges and universities, like Brandeis, have difficult and important decisions to make with regards to how they handle allegations of sexual assault. The issues involved in Doe’s case are not unique to Brandeis University — they reflect policy decisions that take place at colleges across the country.

After a careful and thorough examination, I believe that the methods used by Brandeis University to investigate J.C.’s allegations against John Doe were unfair. 

However, some of these policies, such as using the preponderance standard and the decision to prevent John Doe and J.C. from being able to cross-examiner each other, were required under the U.S. Department of Education's 2011 Dear Colleague letter, which interpreted the responsibilities of colleges and universities under federal law.

Preponderance of the evidence

As Judge Saylor eloquently explained in his opinion, the stakes for Doe in the outcome of Brandeis’s investigation were incredibly high. According to Doe’s amended complaint, Doe lost two job offers, was called a “rapist” by another student at a public event, and had suicidal thoughts on two occasions after he was found responsible for sexual assault by Brandeis.

The emotional and social consequences of being found guilty of sexual assault are incredibly high. Considering what is at stake in these kinds of investigations, it seems unfair to use the “preponderance of evidence” standard to determine guilt. The preponderance of evidence standard requires that it be more likely than not that someone is guilty before they can be found responsible for misconduct.

Observers often describe cases where alleged misconduct occurs behind closed doors as “he said/she said” cases, due to the lack of evidence for investigators to consider.

In many cases, an allegation and a denial creates 50 percent credibility on each side. When the “preponderance of evidence” standard is used, the slightest bit of evidence, however minimal, can tip the scale against the accused. This seems highly unfair when the stakes of finding someone responsible for sexual assault are so high.

The “preponderance of evidence” standard is far easier to prove than the “beyond a reasonable doubt” standard used in criminal trials.

The 2011 Dear Colleague letter said that the preponderance standard is required because it is the standard institutions are held to, by both the U.S. Department of Education’s Office for Civil Rights and in civil cases, under civil rights laws concerning sex discrimination.

The Dear Colleague letter’s reasoning seems incorrect to me. The issue addressed in a university investigation is whether a student is responsible for committing sexual assault. The issue in a sex discrimination lawsuit or an OCR investigation is whether an institution acted fairly.

It doesn’t seem to follow that the standard for institutions concerning sex discrimination, which under the Obama administration’s interpretation of Title IX includes sexual harassment and sexual assault, need necessarily be the same for students accused of sexual assault.

I believe universities that conduct these investigations should, at a minimum, use the “clear and convincing” standard to determine guilt.

Cross-examination

Both Doe and Brandeis University agreed that Doe wasn’t allowed to directly question J.C. or other witnesses interviewed by the special examiner. Brandeis was prohibited from allowing Doe to cross-examine J.C. by a provision of the Dear Colleague letter. 

An indispensable component of due process in criminal trials is the ability of a defendant, generally through their lawyer, to cross-examine prosecution witnesses. Taking the witness stand is undoubtedly a stressful experience for anyone. The agony must be even worse for someone who is the victim of a sex crime.

But it would be next to impossible to create a system that could fairly determine whether someone is guilty of serious misconduct without allowing for the accused to cross-examine their accuser.

Friends, families, and others should take great care for the emotional well-being of alleged victims during criminal trials and campus investigations.

However, given the high stakes of the outcomes of these investigations, it would be unfair to deny someone accused of misconduct the ability to effectively question the credibility of those whose testimony would determine their guilt.

The special examiner

The special examiner in Doe’s investigation effectively acted as the police investigating a crime, the prosecutor arguing the case, the judge overseeing the trial, and the jury deciding guilt.

That is far too much power to place in the hands of a single person.

The decision on whether to accept the special examiner’s findings rested upon a single Brandeis dean. These two alone had the power to determine whether Doe would be found guilty of sexual assault.

It is true that Doe was able to appeal this decision to a university appeals board, but as Judge Saylor explained in his ruling, Doe’s appeals rights were limited.

In a criminal trial, a defendant has the option to have their case heard by a jury of their peers, 12 people from diverse backgrounds who must all agree that he is guilty before he can be convicted. Giving that power, along with the powers of the police, prosecutor and judge, to a single person, is wrong.

Alternatively, if a university doesn’t give these responsibilities to a special examiner, then it could be given to faculty or students on college tribunals, who may not have the background or expertise to handle these kinds of cases.

The justice system seems far better equipped to handle these investigations. But if colleges continue to investigate sexual assault, it would be better for their processes to more closely align with those of criminal courts.

Informing the accused of the charges against him

John said he requested a copy of the special examiner’s report when he met with a Brandeis dean following the conclusion of the special examiner’s investigation. Brandeis confirmed that Doe was not provided with a copy of the report while his case was being decided. Instead, Doe was provided with a summary of the report prepared by an administrator.

The decision to deny John access to a report upon which is guilt would be determined is entirely indefensible.

John also said that he wasn’t told exactly what he was being investigated for during the special examiner’s investigation and that he had to guess the allegations based on the questions asked by the special examiner.

Brandeis denied that John had to piece together the specific accusations based on the special examiner’s questions, instead saying that John was informed of this information during the special examiner’s process.

Police sometimes use the fact that a suspect doesn’t know how much information the police possess to trick the suspect into confessing to a crime. But before going into a trial, the defendant and his lawyer are allowed to know exactly what evidence the prosecution is going to present so the defense can attempt to challenge the credibility of that evidence.

If John’s amended complaint is correct, the special examiner acted as both police and prosecutor, while denying John access to some of the evidence she was using to determine his guilt. To call that unfair would be an understatement.

Interim measures

Regardless of whether J.C.’s allegations were true, it appears undeniable that after the breakup, J.C. was experiencing some difficult problems. He began seeing a counselor, dropped a college course, and considered dropping out of college altogether. J.C. said these hardships were the result of Doe’s sexual misconduct against J.C. during their relationship.

It seems reasonable that the university would take actions to ensure that it would be less likely that J.C. and Doe would run into each other on campus.

But, according to Doe’ complaint, Doe was banned from his classes, residence, and paid university job, while the investigation was being conducted. Brandeis denied this but didn’t explain what restrictions it placed on Doe during his “emergency suspension.”

While it isn’t clear exactly what John’s interim restrictions were, if his claims were correct, it would appear Brandeis acted unfairly. Banning someone from all their classes prior to a finding of responsibility seems excessive, unless the university has more evidence to work with than allegations from a single person.

It would have been better if the university would have compared J.C. and John’s schedules and worked out an interim solution that allowed them both to continue their studies while the investigation progressed. Perhaps that is what happened, but if it did, the phrase, “emergency suspension” would seem a bit hyperbolic.

Even in the absence of a finding of responsibility, it might be appropriate for a university to issue a no-contact order between two students. Any arrangement in the absence of a finding of responsibility should ensure that neither student is denied continued access to their education, and that any hardship is shared equally.

This isn’t an easy task, but it is an important one, if universities are committed to protecting both due process and access to higher education for victims of sexual assault.

The Special Examiner’s conclusions

It is possible that all of J.C.’s allegations against Doe were true. Alternatively, it’s possible that all of Doe’s responses to those allegations were true. But without additional evidence, it may never be clear which parts of J.C.’s allegations actually took place.

I believe that, considering the lack of available evidence, the conclusions reached by the special examiner were unfair to Doe.

The movie incident

Both J.C. and Doe agree that Doe put J.C.’s hand on Doe’s penis during the movie incident, which took place before J.C. and Doe were dating. It appears clear Doe did not verbally ask J.C. if Doe could do this.

J.C. said he didn’t move his hand because Doe kept his hand on top of J.C.’s hand and because J.C. didn’t want to alert the friend who was in the room as to what was going on.

In his amended complaint, Doe said this was the “first move” in his relationship with J.C., which Doe carried out after J.C. told Doe that J.C. would never make the first move on a straight guy.

The special examiner found Doe guilty of sexual misconduct for his actions during the movie incident. Upon learning of the special examiner’s conclusion, Doe said he offered to provide witnesses who would attest that J.C. recounted this interaction humorously during their subsequent relationship, according to Doe's complaint. Brandeis did not interview these witnesses, the complaint stated.

In a legal brief, Brandeis University denied that Doe provided the university with these names.

I don’t believe that verbal permission should necessarily be required for every incident of sexual contact. The context surrounding the action and the relationship between the people involved are incredibly important to evaluating the propriety of the conduct.

Consider two young adults on a first date. The woman might flirt with the guy by grabbing his ass at the conclusion of the date. This flirtation might occur without explicit verbal permission ahead of time.

The person of the receiving end of this action may view this interaction positively or negatively. If he doesn’t like it, he can simply choose not to date the other person again, or alternatively, he could tell her not to grab his ass in public again.

During the movie incident, J.C. could have moved his hand away, or told Doe quietly to stop. Neither of these choices would have caused much of a disturbance to Doe or to the friend in the room.

More importantly, if J.C. was uncomfortable during this interaction, he simply could have chosen not to date Doe after it took place. If indeed J.C. did describe this interaction humorously during his relationship with Doe, it would appear that his later discomfort differed from his earlier recollections of the event.

It appears that Doe was attempting to gauge J.C.’s reaction to Doe’s advances through a minor physical act. This kind of flirting is common at the beginning of romantic relationships.

It seems unfair that this interaction, which took place over two years before J.C.’s initial CSR, was adjudicated by a university investigation, rather than by John and J.C. at the time of the interaction itself.

Bathroom incidents

J.C. alleged that during their relationship, Doe actively looked at J.C.’s penis when they were in the bathroom together despite J.C.’s objections.

Doe said that when he and J.C. were in the bathroom together, he would crane his head over in an obvious way and tell J.C. that he could see his penis. According to Doe, J.C. responded by saying something like, “That’s fantastic. It’s not like you haven’t seen it before.”

Doe said he did this as a joke because it was a humorous situation that J.C. and Doe could use the same restroom because they were in a same-sex relationship. Doe said that J.C. never expressed any discomfort with Doe’s bathroom behavior.  

If indeed Doe continued to look at J.C.’s penis in the restroom after J.C. clearly told him to stop, that would be wrong, even though they were in a relationship together.

However, it’s not clear from the special examiner’s investigation what, specifically, J.C. told Doe during these interactions.

If Doe is correct and J.C. said, “That’s fantastic. It’s not like you haven’t seen it before,” it is possible that Doe could have simply thought that J.C. was also enjoying the joke. It is thus possible that J.C. was telling Doe to stop in a way that was unclear to Doe.

If indeed J.C. did object to this behavior but wasn’t comfortable enough with Doe to tell him clearly, Doe might have created an environment where J.C. wasn’t comfortable enough to clearly speak his mind on the matter.

Without witnesses to these conversations, or recordings of them, it isn’t possible to know exactly what J.C. told Doe. As a result, it seems unclear whether Doe knew he was engaging in conduct to which J.C. objected.

Sexual activity 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 including 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 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 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 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 Doe’s earlier statement, 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.

Sangavi concluded that based on Doe’s inconsistent answers, that J.C. was more credible with regards to his allegations on this topic, and thus concluded that J.C.’s allegations concerning sexual contact while J.C. was asleep were more likely to be true.  

Based upon my reading of Sanghavi’s report, Sanghavi concluded that Doe was responsible for both the humping and the wake-up morning kisses. The report is somewhat ambiguous on this point and is open to interpretation.

Sanghavi determined what rules Doe was guilty of concerning sexual acts Doe engaged in while J.C. was sleeping, before stating, “even if the description provided by Doe were true,” after which Sanghavi analyzes the rules violations that would have occurred if only the wake-up morning kisses had taken place.

I therefore find it likely that Sanghavi concluded Doe was responsible for both the humping and the wake-up morning kisses.

Whether Doe woke up J.C. with morning kisses should have no relevance to J.C.’s allegations of Doe waking J.C. by humping him. J.C. made the humping allegation and Doe denied it. Both were consistent concerning that allegation.

Doe made his inconsistent comments regarding wakeup morning kisses during an interrogation by a trained attorney, when Doe was possibly unaware of the specific allegations the special examiner was considering, and where it is likely that no defense attorney was present to provide advice. The circumstances surrounding Doe’s testimony should give us pause as to the fairness of the investigation.

Nonetheless, due to Doe’s varying stories regarding wake-up morning kisses, it seems likely that his first story is correct: that he woke up J.C. with kisses and continued even after J.C. initially told him to stop.

The special examiner concluded that even if Doe’s story were true, he still would have violated Brandeis’s sexual misconduct and lack of consent to sexual activity rules. Because the special examiner determined J.C.’s testimony on this subject was more credible, Sanghavi also found Doe guilty of taking advantage of incapacitation.

There is no evidence beyond J.C.’s testimony concerning the humping allegation.  It seems correct if kissing is defined as a sexual activity, then Doe would be technically guilty of sexual misconduct and lack of consent to sexual activity.

But to find someone responsible of breaking rules that sound so incredibly serious for such minor misconduct defies how virtually everyone would understand these concepts.

Continuing to kiss a romantic partner in the morning after they tell you to stop is inconsiderate, improper, and inappropriate. But it seems bizarre to convict someone for such minor misconduct through a university sexual assault investigation.

The North Adams Incident

J.C.’s most serious allegation against Doe is that Doe performed oral sex on J.C., even after J.C. said he didn’t want to engage in that sexual activity.

According to J.C., approximately three to four times during his relationship with Doe, Doe offered to give J.C. “head” and J.C. declined the offer, but Doe put J.C.’s penis in Doe’s mouth anyway. J.C. said he was flaccid during these incidents, he told Doe to stop, and that Doe gave up after a short time. J.C. recalled that if he objected to this sexual activity, Doe became annoyed and angrily went to bed.

J.C. said that one of these incidents took place in May 2013, when Doe visited J.C. at his father’s house in North Adams, Massachusetts. According to J.C., he asked Doe after Doe tried to perform oral sex without J.C.’s consent whether Doe realized this was sexual assault.

During interviews with the special examiner, Doe denied he ever performed oral sex on J.C. without J.C.’s consent. Doe stated that he sometimes asked J.C. whether he could give J.C. “head.” According to Doe, if J.C. stated “No,” Doe replied by asking “Seriously?” and moved away from J.C. If J.C. indicated again that he was not interested, then Doe did not continue. Doe recalled that he would be annoyed if J.C. did not want him to perform oral sex and would turn over.

During the first interview in which Sanghavi discussed the North Adam’s trip with Doe, he stated that he remembered the trip being “normal.” He 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 due to Doe’s inconsistent responses and lack of memory regarding whether or not he slept on the floor were not credible, and concluded J.C.’s claims were more likely to be true.

Thus, John was found responsible for sexual misconduct and lack of consent to sexual activity for his actions during the North Adams incident.

These seem to be incredibly serious charges to be convicted for based upon John’s inability to remember whether he slept on the floor.

Moreover, John’s responses weren’t even inconsistent. In the first interview, he didn’t bring up sleeping on the floor. In the second interview, he said he didn’t remember, before saying that he thought that he did. This seems to be exactly the sort of response you would expect of someone remembering a detail that didn’t seem too memorable to them at the time.

If J.C.’s testimony is correct, Doe’s actions would fall under my understanding of rape. If one person has sex, such as oral sex, with someone else after the other person says they don’t want to have sex — that would appear to be sex without consent, which is rape.

If J.C.’s story is correct, Doe may be guilty of a criminal violation in addition to breaking school rules. But without any evidence to work with other than John and J.C.’s conflicting testimonies, there would be no way to prove it in court.

Whether the exchange took place between John and J.C. as J.C. described, it seems like the kind of interaction that likely occurs within some romantic relationships.

Someone might commit a sex crime by engaging in sexual activity, after their partner tells them to stop, because they don’t realize that what they are doing is wrong.

Given the available evidence, it seems there is insufficient information to conclude that Doe engaged in oral sex with J.C. after J.C. told Doe to stop during the North Adams trip.  

Sexual harassment

As I don’t think John should have been found responsible for any of the preceding rules violations, I don’t think he should have been found guilty of the secondary offense of sexual harassment for the same violations.

Physical harm

When speaking about these kinds of investigations, whether in the workplace or on college campuses, people often describe the allegations as “sexual violence” or “sexual assault.”

To most people, both words in these phrases have meaning. An act of “sexual violence” must both be a sexual violation and an act of violence. Likewise, a “sexual assault” must both be a sexual violation and a physical assault.

The acts described in this and other investigations do not concern acts of “violence” or “assault” as most people would understand them. Indeed, these interactions would be better described as “nonconsensual sexual acts” than anything associated with any form of violence.

The 2011 Dear Colleague 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 used this definition to conclude that Doe had committed violence, and thus physical harm, against J.C. for his actions during the movie incident, by engaging in sexual activity while J.C. slept, and by performing oral sex on J.C. without his consent during the North Adams visit.

Sanghavi concluded that Doe’s wake-up morning kisses were given without J.C.’s consent. Thus Sanghavi’s analysis of sexual violence would extend even to Doe’s wake-up morning kisses, a conclusion that should shock the conscience of anyone examining this case. 

None of the allegations against Doe could reasonably be considered acts of "violence" even though several were clear allegations of misconduct. 

Sensitivity training

John was subjected to an unfair investigation that unfairly found him guilty of committing serious misconduct. It does seem clear, however, that at least with the wake-up morning kisses, and definitely if some of J.C.’s more serious allegations were true, that Doe was inconsiderate towards J.C.’s wishes.

The special examiner also interviewed a female student who said that Doe grabbed her breasts on several occasions. The student said Doe did not ask if he could touch her breasts. Doe admitted 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.

This interaction also shows that Doe acted in a way that was inconsiderate and that he failed to appreciate appropriate boundaries with regards to sexual contact.

Brandeis’s punishment of sensitivity training seems appropriate.

John also said that Brandeis placed a disciplinary mark on his academic record. Brandeis denies this claim. This is an odd contradiction, because it would seem to be one that could be easily proven one way or another had the case gone to trial.

If the mark does exist, I hope it doesn’t prevent John from being able to live a happy and productive life.

I hope that J.C.’s mental health improves; and I hope that he is also able to come to terms with the events that occurred during his relationship with Doe.

Final thoughts on the Dear Colleague letter

The Obama administration’s 2011 Dear Colleague letter on sexual violence was well intentioned. The letter sought to shield victims of sexual misconduct from emotionally difficult cross-examination, while creating policies that allowed them to continue to access higher education.

But in the process, the letter created an environment that made it far too difficult for accused students to defend themselves, and brought comparatively minor actions that occur within the relative privacy of romantic relationships under the microscope of university investigators.

I believe it is important to protect the emotional well being of victims of sexual misconduct, but there has to be a better way to do so than this.

My preferred policies would likely mean that some people who are guilty of misconduct, possibly even serious misconduct, may not be found responsible for their misdeeds. But continuing the policies mandated by the 2011 Dear Colleague letter make it far too easy for an innocent student to be found guilty of serious offenses, and bring far too many minor sexual acts under the scope of university rules.

I wholeheartedly agree with the Trump education department’s decision to withdraw the 2011 Dear Colleague letter. I don’t agree with the Trump administration on virtually anything else, but I think they are doing something incredibly valuable in reshaping the education department’s policies on these matters.

Hopefully, with this change, colleges and universities can bring fairness back into their sexual assault investigations. Only time will tell.