A Penn State student is suing the university for reportedly mishandling a sexual assault allegation against him and changing its definition of consent one week before a second hearing, according to a civil rights complaint filed on Thursday.
The student, named John Doe in the complaint, said the university unfairly conducted its investigation into the reported assault and did not uphold his right to a fair, unbiased disciplinary process.
This is the seventh lawsuit filed against Penn State in the past four years claiming the university mishandled sexual misconduct claims.
In April, Doe was initially suspended from the university for one year after Penn State's Title IX panel said he engaged in nonconsensual sex with a female student, referred to as Jane Roe.
Roe filed a complaint in July 2018 claiming Doe pressured and "cajoled" her — a word Doe claims was then added to the university's definition of "coercion" one week before his second scheduled hearing. Feeling pressured and cajoled by Doe, Roe said she was coerced into having sex with him, according to Roe's complaint.
While the Title IX panel initially found Doe liable, a new hearing will reexamine whether Doe's actions could be considered coercive.
Doe reportedly received the new definition of “coercion" from the Title IX Office on July 16. The suit filed by Doe in U.S. Middle District Court alleges the new definition has changed the meaning of consent in order to find Doe liable for a second time.
While Doe's second hearing was originally scheduled for July 23, it was rescheduled. The new date is still undecided.
Doe and Roe met in 2017 during new student orientation. The suit states they reconnected on Jan. 26, 2018, and mutually flirted with and texted each other.
Later that day, Doe said the two "cuddled" in Doe’s bed while they discussed having sex together, their past sexual experiences and STD testing. The complaint also said the two texted about being "friends with benefits."
That night, Roe told Doe her roommate was not in her room and texted Doe her dorm room number. When Doe arrived at about 1 a.m. on Jan. 27, 2018 the suit says the two engaged in "consensual kissing and fondling" and, according to the suit, Roe then asked Doe to perform sexual acts on her, which he did. The complaint states that Doe "immediately stopped" when Roe told him she was in pain.
Doe asked if Roe wanted him to leave and she told him to stay, giving him a condom to use. The two attempted to have intercourse in several positions but neither was comfortable.
The suit says Roe and Doe continued to text each other after that night. It specifically says Roe sent Doe “flirtatious” texts and told her friends she wanted to have sex with him on “her terms.” It is unclear when communication between the two ended, if it did.
In the suit’s account of Roe’s complaint filed with the Penn State Office of Sexual Misconduct Prevention and Response, Roe’s description of the events that transpired matched Doe’s.
However, Roe said she was coerced into having sex with Doe. She filed her complaint about six months after the incident.
On April 12, a three-person Title IX panel presided over Doe’s hearing. Doe was a sophomore at the time.
Two days before the hearing, Doe emailed Office of Student Conduct Senior Director Karen Feldbaum about his concerns with Penn State’s Title IX decision panel process.
Specifically, he said his inability to call witnesses or cross examine Roe and adverse witnesses barred him from a fair process. The process does not currently allow the complainant or respondent to cross examine or call witnesses during a hearing.
He also wrote that the process “divests me of a presumption of innocence.” Doe reported that he received no response to his email.
Prior to the hearing on April 12, as Feldbaum handed the panel the investigative packet on the case, she told the panel she concluded the investigation “reasonably supported” the claim that Doe engaged in nonconsensual sex, according to the suit. The suit does not make it clear whether Doe was present when Feldbaum reportedly said this.
The complaint reports both Roe and Doe were told no “new information” could be presented during the hearing. However, it also states that Roe was permitted to present “extensive ‘new’ information” — she was permitted to interpret and explain the meaning behind text messages and statements she said to the case’s investigator, according to the suit.
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Further, the suit states Roe did this “in an effort to explain unfavorable and contradictory information in the packet.” When Doe tried to object to the new information, the panel did not allow him to and said Roe was “sharing her testimony,” according to the suit.
Penn State's Code of Conduct states no "new information" can be presented during the hearing unless this information was not available during the investigation or is "relevant to establishing whether or not the respondent is responsible for misconduct." It also states the "other party" must have the chance to respond to new information presented.
The suit says Doe was not permitted to object to the "new information" and his objection was later dismissed by the chair. It is not clear whether he had the chance to respond to the information.
After Roe’s testimony, Doe provided the panel with about 40 questions to ask Roe. According to the university's Code of Conduct website, questions are reviewed by the hearing authority for "relevance and appropriateness" before being asked.
“Approximately seven” of Doe's questions were asked.
That afternoon, the panel found Doe to be responsible for engaging in nonconsensual intercourse with Roe.
"Penn State erroneously placed the entire burden on Doe to prove his innocence, instead of setting forth competent evidence to demonstrate how he allegedly engaged in nonconsensual sex with Jane Roe," the suit reads.
Despite what the suit refers to as “Roe’s explicit verbal consent” by handing Doe the condom, the panel said Doe pressured and cajoled Roe into having sex with him through flattery, flirting and complimentary text messages.
This was interpreted by the panel as “coercion,” and because there was coercion, the panel said Roe could not provide consent.
The panel also said it found Roe to be “more credible” than Doe, as Roe cited specific details and provided a consistent testimony. The panel said Doe was unable to provide “nearly any details” about the incident.
Doe said he was not intoxicated during the incident. However, his inability to cite specific details “led the panel to believe that the respondent may have been more intoxicated than he had indicated, thus harming his credibility,” according to the suit.
On April 26, Feldbaum told Doe that Penn State “placed the time frame for receipt of any request for appeal on hold.” According to the suit, Penn State’s Code of Conduct does not permit the university to place an appeal on hold.
On Penn State Student Affairs' website, the Code of Conduct states an appeal can be filed up to five business days after "receiving official notification of the results of the hearing."
While Doe was informed of the panel's decision on April 12, he did not receive a copy of the decision report until April 22, according to the suit.
Doe submitted an appeal to the decision on April 29 — exactly five business days later.
Twenty-four days later, Assistant Vice President of Student Affairs Danny Shaha requested a review of the University Conduct Board’s decision. Shaha said the university’s definition of coercion may have been “misinterpreted” and requested for a second hearing, according to the suit.
Doe submitted a second appeal on May 28.
On July 16, one week before the next scheduled hearing, Title IX Coordinator Chris Harris sent Doe a new definition of coercion that added “cajoling” to its meaning.
“'Coercion' is an unreasonable amount of pressure to engage in sexual activity. Coercion is more than an effort to gain consent, or persuade, entice, or attract another person to engage in sexual activity. Coercion includes elements of pressure, (e.g., duress, cajoling, compulsion or abuse),” the new definition reads in the complaint.
The new definition does not appear anywhere on a university website. The suit alleges the university is using this new definition to change the meaning of consent so Doe will be found liable in the second hearing.
The university's current definition of consent, which is nearly 150 words long, specifically states that if coercion is used, there is no consent. However, "coercion" is never clearly defined anywhere on a university website, and the word "cajoling" never appears in any definition.
The suit claims the university has violated the Fourteenth Amendment and Title IX of the Education Amendments. The suit also cites that the incident has caused Doe emotional distress and damage to further educational and career opportunities.
Doe seeks expungement of his disciplinary file and monetary damages.
The suit also requests that Penn State reinstate Doe in good standing without further prosecution or reopen the investigation.