Mimesis Law
11 December 2018

No Discovery For Accused Campus Rapists

February 2, 2017 (Fault Lines) — Discovery, a tool used to obtain information about the opposition’s case so no surprises occur at trial, is a wonderful mechanism to help speed along and settle cases. There’s one exception, as “John Doe,”* a former Amherst College student recently discovered. When your discovery requests carry the potential of forcing an alleged rape victim to relive a traumatic experience that never happened, you’ll get nothing in discovery.

In case you’re unfamiliar with what KC Johnson calls “perhaps the most egregiously unfair” Title IX case he’s covered, “John Doe” and “Sandra Jones” were both students at Amherst College. Both were students at the school in 2012, when Doe maintains the two had a consensual sexual encounter that February.

“Sandra Jones” didn’t see the encounter as consensual. She filed a complaint with Amherst’s Title IX kangaroo court investigative body, and Doe was found by a preponderance of the evidence standard to have been responsible for sexual misconduct. He was promptly expelled, and Amherst denied his appeal.

Adding to the lunacy that was Doe and Jones’s Amherst investigation is information Amherst found “credible” that suggests Jones, the putative victim, actually sexually assaulted Doe. Since the school adopted an “affirmative consent” policy regarding its students sexual conduct, information Doe produced, suggesting he was “blackout drunk” the night of their sexual encounter, was considered evidence Jones actually assaulted Doe. Yet, because “rape culture” and “toxic masculinity,” Doe was held the guilty party.

Doe sued Amherst for the “grossly inadequate” investigation and hearing that led to his expulsion. He asserted a series of text messages obtained after his original Title IX hearing undermined Jones’ narrative of their sexual encounter, and the college’s failure to consider this new evidence violated his civil rights, breached his contract with Amherst, caused negligent infliction of emotional distress, and more. As part of this litigation, Doe subpoenaed Sandra Jones to a deposition and asked for certain documents.

This is what is referred to as a subpoena duces tecum, a fancy Latin term that means “come to court and bring documents or things we want you to bring.” It’s a part of the discovery process for trial, so all sides can understand what evidence will be introduced once a case goes before a trier of fact. Doe wanted Jones to participate in a deposition and produce an extensive amount of documents concerning the Amherst Title IX hearing.

Jones wanted no part of the suit and filed a motion to quash her appearance and production of any documents relating to her Amherst Title IX proceeding. Her contention was, as a non-party to the suit, she was not bound to appear for a deposition or release any information whatsoever to Doe or Amherst College. Surprisingly, U.S. District Judge James Robart agreed with Doe and took a step further, declaring Jones’ participation in this lawsuit a “substantial burden” on her.

An in-person deposition of boundless scope would impose a substantial burden on Ms. Jones…The deposition would force Ms. Jones to relieve a night in which she asserts Mr. Doe sexually assaulted her…It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured…It takes no leap of logic to reason a live deposition would impose emotional and psychological trauma on Ms. Jones.

For those of you following along at home, a United States District Court Judge found deposing a student involved in a campus rape accusation that led to another student’s expulsion would inflict “emotional and psychological trauma” on the accuser. This is not rocket science for trench lawyers. Depositions are akin to interrogations with polite rules of order. Judge Robart knows this and yet decided to grant Sandra a pass on something that was necessary in the preparation of Doe’s case against Amherst.

If Sandra Jones can’t stand a deposition over an almost five-year-old Title IX sexual misconduct case, surely Judge Robart thinks producing documents relevant to John Doe’s suit against Amherst isn’t a “substantial burden” that would harm Sandra Jones. That’s an assumption, and if you’re reading this, you know what happens when you assume anything, especially in a court case involving Title IX campus rape adjudications.

[R]equests for production [of 8 out of 13 documents requested] seek documents that are irrelevant or overbroad in relation to Mr. Doe’s claims against Amherst…[T]hese requests illustrate an effort to relitigate the merits of the disciplinary proceeding rather than to challenge the process by which Amherst conducted it.

Okay, it’s not agreeable, but at least some of the material Doe requested for discovery is fair game, right? There’s five requests the court deemed “arguably relevant” to John Doe’s suit against Amherst, so Sandra Jones should fork over the goods, right? Once again, the answer is a big fat “no.”

[T]hose requests relate to communications that could readily be obtained from other sources. Most of those other sources are Amherst employees, and none asserts to be the victim of sexual assault…Furthermore, Mr. Doe already possesses at least some of these communications, which he obtained from other sources.

KC Johnson rightfully calls “bullshit” on Judge Robart’s line of reasoning.

[M]uch of the requested material couldn’t come from Amherst employees. For instance, a critical aspect of the accused student’s case is the basic unfairness of an adjudication that went forward under the false premise that [Sandra Jones]. had not reduced anything about the incident to writing. So the subpoena asked…for “all communications, including text messages or emails, between you and anyone else on February 5, 2012.” The only conceivable source of this material would be [Sandra Jones], not any Amherst employees.

Depending on which side of the fence you sit, this is either a good ruling protecting a rape survivor or a bad precedent for future lawsuits involving Title IX campus sexual assault adjudications. Yes, Sandra Jones doesn’t have to participate in the lawsuit Doe filed against Amherst. The line running through this proceeding, that makes the process scary is that now, as KC Johnson notes, accused students have just as much incentive to sue their accusers as well as the college.

Is anyone else ready to scrap the “Dear Colleague” letter’s advisory guidelines for handling sexual assault on college campuses? It might save everyone a whole lot of time and money.

*It should go without saying “John Doe” and “Sandra Jones” are not the parties’ real names.

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  • Jay Raskin
    3 February 2017 at 5:26 pm - Reply

    I believe the title should be “No Discovery for Students Accused of Sexual Assault. The title “No Discovery for Accused Campus Rapists,” makes it seem that campus rapists are not being allowed discovery after being accused. In fact it is ordinary students who had sex and did something to displease their sex partners who are being accused and convicted of sex crimes in 99%+ of these cases. The kangaroo legal systems set up by Title IX on campuses are a disgrace to all ethical people. It makes Sharia law which requires no evidence, but only two witnesses to convict of sexual assault, look like a just system in comparison.