The University of Massachusetts at Amherst was one of the first of 55 institutes of higher education declared to be under investigation for Title IX violations over the way it handled sexual violence and assault. As a result, its ability to protect victims has been under intense scrutiny. However, two lawsuits against the university filed by male students who were expelled for misconduct—one for sexual, the other physical—alleged that the school struggles just as much to deliver justice for the accused.
Although the two complaints were filed completely separately—months apart by different lawyers—and both deal with different kinds of abuse charges, the school's alleged treatment of the accused students appears strikingly similar. Both lawsuits allege that the school violated Title IX in its dealings with male students. Both allege that UMass denied accused male students the right to present key testimony or ask essential questions at their disciplinary panels. Both tell stories of male students who were already presumed guilty by university administrators.
On August 7, a male freshman (going by the pseudonym John Doe), who had been expelled for sexual misconduct in November 2013, filed a civil complaint in the U.S. district court alleging that UMass violated Title IV stipulations because it “deprived Plaintiff, on the basis of his sex, of his rights to due process and equal protection.” In addition to alleging some incredibly egregious investigative and tribunal practices on the part of the university, John Doe v. University of Massachusetts-Amherst illustrates the murkiness of outsiders determining what constitutes consensual sex between two people.
According to the complaint, John Doe and Jane Doe were at a party on September 13, during which people were drinking. Jane Doe approached him, and they traded texts. Jane Doe not only spoke in a “coherent and intelligible manner,” but her texts from the evening “demonstrated correct spelling grammar, and punctuation.” She texted her roommate to reserve their bedroom for the purposes of bringing back John Doe. The complaint outlines that before every sexual act, John Doe received verbal consent to proceed, from removing her shirt to intercourse.
According to John Doe's account, the evening is an almost a textbook example of the “yes means yes” consent definition being considered by the University of California. “Every step of the way, he expressly asked her 'Can I do this? Should I do this?' She agreed every step of the way,” Andrew Miltenberg, one of the attorneys representing the young man, told The Daily Beast.
However, Jane Doe told friends the next day she could not remember what occurred the night befoe. According to Doe, she filed a written complaint on her friends' urging. It devolved into a ‘he said-she said’ situation. That UMass found Doe guilty of sexual misconduct, sexual harassment, and community living standards violations suggests that “yes means yes” will not resolve campuses' fuzzy and confusing approach to consensual sex.
Doe was expelled and effectively thwarted from transferring to another university, even though, according to the complaint, “no police report was ever filed and Jane Doe's complaint never classified the Evening of September 13 as 'non-consensual,' 'rape,' or 'assault.'”
In many ways, the trial reveals how men and women are judged differently when it comes to the mixing of sex and alcohol. This is an issue that is not limited to UMass. “I think in a lot of cases, there are gender stereotypes of who should be responsible for drunk interactions involving students engaging in sex, and it always falls on the male,” Kimberly Lau, who is also one of the attorneys for John Doe, tells The Daily Beast. “It's persecuting the male students and allowing females to escape scrutiny for voluntarily ingesting alcohol, as well.”
Lau has filed other suits involving misconduct accusations and drinking, and she has noticed a pattern of disproportionate blame on men. “Invariably, most of these cases involve both parties engaging in voluntary ingestion of alcohol. Inevitably, the male accused is not allowed to use it as defense. However, the female complainant escapes scrutiny for it,” she says. “We've seen cases where the male gets another charge of underage drinking on top of sexual misconduct. It begs the question why isn't the female charged with something similar? It's kind of just ignored.”
The fact that both male and female parties are violating the law and potentially impairing their ability to communicate and read others' intentions is the elephant in the room when it comes to alcohol and sexual consent. It is rarely considered that female students bear a level of responsibility, as well, in part because it is so controversial (the storm surrounding Emily Yoffe's column on drinking's association with sexual assault was infamously denounced across the web as pure and simple victim-blaming). But claiming alcohol exempts one party from giving consent, but does not excuse another from misinterpreting consent can create a problematic double standard.
The other case against UMass also reveals potential double standards in cases where males are traditionally assumed to be the perpetrators and females the victims. This past March, James Haidak, a second semester student expelled for physical assault in December 2013, filed a civil complaint in the U.S. district court. In his suit, Haidak alleges the school violated Title IX by denying him his “statutory right to be free from discrimination on the basis of sex by selectively enforcing CSC [Code of Student Conduct] provisions against him while exhibiting indifference to CSC violations committed by” his accuser.
In spring of 2013, Haidak and his then-girlfriend, Lauren Gibney, were studying abroad in Barcelona under a third party, Academic Programs International (API). According to the complaint,Haidak's mother received accounts from her son that his girlfriend was physically abusing him, which she says Gibney admitted to her in person.
On April 15, 2013, Gibney, who was allegedly drinking and depressed over family member's death according to the complaint, yelled at Haidak and grabbed his laptop. According to the complaint, the argument escalated to the point where Gibney “became physical, hitting and slapping” Haidak's face, in addition to “strik[ing] him in the eye” and “kick[ing] him in the groin.” Haidak claims he held Gibney's arms down to protect himself. Haidak says in the complaint he broke up with Gibney the next day, and she proceeded to file a report with API that Haidak had assaulted her, submitting photographs of “marks on her arms and wrists.”
In response to Haidak's complaint, UMass filed a motion to dismiss the suit, painting a different account of the evening by citing accounts from Gibney on April 16, 2013, the day she spoke with UMass about the alleged. That account also does not state that Haidak hit her, though she describes him pushing her onto her bed and putting his hands around her neck. According to the motion to dismiss, Gibney stated “Everything is somewhat a blur to me but from what I can remember he was trying to hurt me in any way possible without actually hitting me.”
Haidak is still standing by his account, while acknowledging that Gibney's version of the night is different from his own. His opposition to the motion argues that under legal precedence, a court should not “dismiss a complaint 'merely because [it] finds a version more plausible.'” Objectively weighing both accounts of the night of the alleged incidence is the struggle, and it's something Haidak argues UMass failed to do.
According to Haidak's complaint, Gibney declined API's offers to press charges or seek counseling. API notified UMass about the alleged incident. Allison Berger, who is an Associate Dean of Students and is a separate defendant in Haidak's suit, notified Haidak on April 19, 2013 that he violated the school's Code of Student Conduct (CSC) provision on “Physical Assault” and “Endangering Behavior to Persons or Property.”
Haidak submitted a written account of the events on the night of April 15 along with photos of the eye injury he incurred from Gibney. The suit alleges that Berger had evidence that Gibney had violated the CSC by:
(i) physically assaulting Plaintiff both before and during the night in question; (ii) engaging in behavior which endangered both Plaintiff and his property; and (iii) providing a fundamentally dishonest account of the incident.
Yet, according to the complaint, Berger was “deliberately indifferent” to these allegations against Gibney.
“One of the reasons we allege gender bias is that he had made the school aware of physical violence he had suffered,” Haidak's attorney, Luke Ryan, told The Daily Beast. “We believe the administrators engaged in sex discrimination against our client by disregarding allegations that he was a victim of domestic violence. I think their view was colored by rigid gender stereotypes.”
Despite the pending school trial (which was to take place the following fall semester), Gibney and Haidak continued their relationship. Haidak was told to have no contact with Gibney, but they texted and also engaged in consensual sex, according to the suit.
Yet Gibney also filed a restraining order against him. Her request was granted, but when she testified before the Eastern Hampshire District Court to extend that restraining order in October 2013, she said she “just wanted [the university disciplinary hearings] to be dropped. I didn't want it to come this far.” The judge refused to grant an extension of her restraining order. UMass ultimately expelled Haidak.
Both of these lawsuits allege a hyper-eagerness on the part of UMass. In theory, the university is meant to be an objective body, not a prosecutor. “At these universities now, the investigators essentially act as gatekeepers of information,” says Miltenberg. “As opposed to what they're really supposed to be—gatherers of information.”
Both Haidak and Doe allege the school denied the accused the opportunity to present key witnesses or submit questions to witnesses that would have potentially bolstered their cases. In Haidak's case, he says the school denied his mother, Cecily Holiday, from testifying, even though she says she could have spoken about her son’s complaints about Gibney's physical attacks and Gibney's admittance.
Patricia Cardoso, an Assistant Dean of Students, also allegedly excluded the transcript from Gibney's restraining order extension hearing in which she expressed her desire that the charges against Haidak be dropped. In their motion to dismiss the suit, UMass argues that it was Haidak who decided not to submit the transcript from Gibney's restraining order hearing against him, citing sections of Gibney's testimony in which she claims she bit Haidak because his arm was “around my neck.” However, in his opposition, Haidak denied UMass' claim that he did not want the transcript included.
In his complaint, Doe states that UMass required him to submit questions to be asked of witnesses to Cardoso. According to his suit, she struck from his list basic and essential questions directed at Jane Doe, including “How much did you drink?” and “Do you remember texting John Doe?”
Cardoso declined to comment for this article, as did UMass, which only referred to remarks prepared in response to Doe:
UMass Amherst does not comment on specific cases in litigation. The university does take allegations of sexual assault seriously and conducts reviews through a detailed procedure specified in the Code of Student Conduct.
In the motion to dismiss Haidak's suit, UMass argues that it provided sufficient execution of due process because “the notice and hearing attendant to expulsion of a college student are not required to resemble a 'full-dress' civil or criminal trial.”
But the accused do not merely allege that UMass fell short of following the standards of civil and criminal trials. Rather, Haidak and Doe both argue that UMass' investigations and disciplinary hearing were plagued with biases against the accused.
Doe alleges that UMass obstructed justice by actively obscuring essential witness testimonies that the accused are entitled to before the disciplinary panel. He claims it was only because he realized that the school had not given him the full account of witnesses—and because he subsequently called out administrators—that he was sent additional witness statements.
Following the panel's verdict and his expulsion in December of 2013, Doe believed the school still had not given him “all documents” related to his case. According to his suit, UMass responded to his first formal public records request by stating Doe had received all the information contained in his student file, but as the suit notes, that is not the same as all documents related to his case. According to the complaint, UMass simply did not respond to his four subsequent requests for records. It was not until he filed a request with the Massachusetts Secretary of State that Doe received some, though not all, of the related documents.
In December of 2013, Doe also filed a formal complaint of harassment against Jane Doe in an effort to have her testimony scrutinized. By March 2014, the school had failed to respond to the complaint. Doe made a FOIA request on April 4, 2014 regarding any documents related to his complaint. By June, the school finally responded, though only with notification of fees for staff to locate and photocopy the documents.
Haidak's lawyer says that UMass similarly refused to proceed with complaints against the accuser. Ryan says the university claimed it would not consider bringing charges against Gibney because Haidak “didn't express consistent desire to hold her accountable,” even though Gibney appeared to exhibit analogous wavering. “It's that kind of double standard that we think is evidence of gender bias.” In its motion to dismiss, UMass denied this allegation, and Haidak refuted the school's claim in his opposition to the motion.
Both Doe and Haidak argue that the university displayed a general attitude of presumed guilt towards the accused. They include accounts of faculty berating male students and, at times, disproportionately interrupting them or dismissing their accounts.
The chairperson at Doe's disciplinary was faculty member Dennis Conway. According to the complaint:
“The Hearing was conducted in a manner that was slanted against the male accused; Mr. Conway’s line of questioning, tone, demeanor and overall behavior demonstrated his bias against Plaintiff. In stark contrast, Mr. Conway was supportive of Jane Doe and addressed her in a calm, soothing and reassuring manner throughout the Hearing. Plaintiff was questioned in a prosecutorial manner and constantly interrupted when he provided responses. Jane Doe, on the other hand, escaped meaningful questioning about her text messages reserving the room for herself and Plaintiff, and her overall incredible lack of memory of the evening.”
According to Doe's suit, as soon as his alleged victim filed a complaint, he was deemed a “threat,” banned from all areas of campus except for classes, and given just eight hours to remove himself from his dorm. He was also allegedly denied requests for both STD tests on campus and sent to the local hospital to incur medical expenses at his own cost.
“There's an old saying justice is in the process, not the result,” says Miltenberg. “From the word 'go,' there was a very strong presumption against this young man. It seemed like from the beginning, no one wanted to hear anything he said. They [UMass] were backing him into a Kabuki theater type of exercise to get him into the place they wanted to go.”
While UMass made it clear to Jane Doe which counseling and other support services were available to her, the suit alleges the university did not do the same for John Doe. He claims UMass failed to even tell him until after the hearing that the campus Title IX coordinator was an available resource for him. “There needs to be some help for a young man all of a sudden away from his mom and dad, who isn't sure of how to deal with what is probably the first situation like this is his life,” says Miltenberg.
The accused lawyers cite the “preponderance of evidence” standard as causing some of the problems with college disciplinary tribunals. Under this standard, the panel just needs to slightly believe one version of the case is more likely than another to make a conviction. “In these kinds of cases, it can lead to some coin-flip decisions. These cases are complicated by the fact that they often come down to two people's words against each other,” says Ryan. “If the standard of proof is a straight-up credibility contest, it is difficult for an accused student. There is no presumption of innocence in any sort of meaningful way.”
Lau claims that UMass' standard for granting an appeal to a decision is “actually higher than the standard for the conviction.” As a result, the “lowest possible standard is used against him, and a high standard is what he needs to overcome,” explains Miltenberg. “You can't tell me there's something wrong with that. It's intellectually disingenuous.”
The weight of the low bar for conviction has ramifications that extend far beyond campus. Both Haidak and Doe have been unable to transfer to accredited four-year universities. They are effectively in a limbo, denied college degrees or opportunities to pursue them, and, thus are barred from many job opportunities and graduate school pursuits. “You have a low standard that is at best flawed, and you have a lifetime of ramifications,” says Miltenberg.
Ryan believes that Haidak would have fared better if he had been found guilty of assault and battery before a standard criminal court. Facing a misdemeanor without a previous criminal record or serious injuries incurred, “the maximum is two and a half years in prison, but as a practical matter, it routinely results in probationary offenses,” he explains. “The exposure my client would have had in criminal court doesn't compare to a second semester senior getting expelled.”
In fact, Lau believes that cases of sexual assault do not belong in a university, but in the extant legal and judicial systems. “There are law enforcement agencies and courts of law that are better equipped and have better check and balances when it comes to allegations of this nature,” she says.
“You're dealing with people at the tribunal and investigative level who are very accomplished in their field, but not necessarily accomplished in the field of onvestigating and adjudicating factually complex matters that need to be deconstructed,” says Miltenberg.
Faculty members and students who sit on these various disciplinary hearings do not necessarily receive adequate training, but more problematically, they could potentially know the accused personally. In Haidak's case, one staff member and four undergraduates were the deciders of his academic, and therefore professional, fate. In the motion to dismiss, UMass argue that this panel is “uniquely suitable to determine the facts in a case involving a physical assault occurring in the context of a romantic relationship between 2 college students.” But is it apt for fellow students, who may also know Haidak—or at least have some sense of his reputation–from other social contexts, to have such weighty power over his future?
When discussing how low standards for convictions and faculty and student-led disciplinary panels can potentially facilitate assault charges—both sexual and physical—against accused students, some counter that a victim's life is irreparably damaged by assault. That's absolutely true, But it cannot be an excuse for supporting a flawed execution of due process because that ultimately does not alleviate the problems for both the victims and the accused. “It takes an incredible amount of bravery for a young lady to come forward and overcome the fear and trauma associated [with assault]. That is the same for men, as well, when they come forward [after being accused],” says Miltenberg. “The fact that both side of the equation are generally dissatisfied with the way things are going says all we need to know about how the process is working.”
Ironically, both cases are arguably the result of attempts to reform a clearly broken system for treating sexual assault. Although Haidak's case involved physical, rather than sexual, assault, his lawyer believes UMass' treatment is an offshoot of the fact that universities are “very sensitive” and have “essentially thrown the baby out with the bath water and getting rid of important procedural safeguards to protect people who are accused. No one wants to be seen as standing up for people who mistreat vulnerable members of the student population.”
A commendable desire to reform sexual assault policies may be doing less to help victims and prevent attacks and more to punish the accused without proving they are guilty. Lau says, “It's really hard to get out from under that stigma one it attaches at the investigative level, and it follows through the judicial process.”
The good intentions behind federal efforts to improve campus safety and deliver justice for victims, Lau says, “has created an environment where these male students walk into the room, and from the first impression they are treated as guilty before innocent.”