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.”

Primary Source: 2011-12 and 2012-13 Brandeis Student Handbooks

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.