Two days after Judge Steven Jones allowed a Georgia Tech sexual assault judgment to stand—even as the judge admitted that conduct from the university investigator “very far from an ideal representation of due process”—the university will be back in court, facing another lawsuit calling into question its fairness.
Just as in the first case, an internal appeals process overturned a decision by Georgia Tech’s “single investigator,” Peter Paquette. Just as in the first case, the student wound up being expelled anyway. Just as in the first case, the accused student is noting the curricular impact of the expulsion—requesting an injunction since Georgia Tech is in the process of changing its required courses, so if he can’t enroll this spring, he’d be permanently harmed as classes vanish from the curriculum. If anything, the facts of this case are even more compelling. (You can read the complaint here.) Fortunately for the accused student, the case was assigned to Judge Richard Story, rather than Judge Jones, the jurist indifferent to Georgia Tech’s unusual conception of due process in Wednesday’s ruling.
The case involves two students, one gay and one bisexual (John Doe, or JD, the plaintiff), who aren’t identified in the complaint. After sexual activity in April 2014, the accuser waited just under a year to file charges with Georgia Tech, even though he had regular social contact with JD during most of that time. As occurs in the overwhelming majority of campus cases, there’s no evidence the accuser went to the police.
The two students hooked up twice in April 2014; but the accused student soon made it clear he wasn’t interested in a relationship. Nonetheless, shortly after their second hook-up, the eventual accuser rented a nearby duplex for the following academic year. He thus, as the complaint notes, “arranged to rent a house that was literally fifteen feet away from the person who he would accuse almost a year later of sexual misconduct.” Photos from fall 2014 show the two socializing together, even though they no longer had any type of sexual relationship. In early February 2015, the would-be accuser sent a message asking the plaintiff to come “cuddle with him”; the plaintiff refused and said he had no interest in a sexual relationship.
That message appears to have marked a turning point in the two students’ relationship. The accuser shortly thereafter asked JD to delete their private Facebook correspondence; in what turns out to have been a major mistake, JD complied with the request. By the end of the month, the accuser unfriended him on Facebook and ceased all contact with him. He filed a complaint in April 2015. JD, who hadn’t been open about his bisexuality, was forced to reveal his sexual orientation to his parents as a result.
Georgia Tech investigated. The school—whose policies, as was seen in the previous case, designate a sexual assault accuser as the “victim,” and witnesses as “informants,” thereby belying the presumption of innocence—uses the “single investigator” model, with Paquette running the show. As shown in the previous case, Paquette’s investigative technique is unusual. He interviews students, but doesn’t record the interviews, and shares with the accused student only summaries of his private interviews with his “informants.” (An accused student has no right to sit in, or have a legal representative sit in, on any of Paquette’s interviews.)
In this case, according to the complaint, the accuser presented Paquette with edited version of Facebook conversations he’d had with the student he accused; Paquette (like all college investigators) lacked subpoena power to compel production of the entire exchange. Nonetheless, after speaking to JD, the investigator didn’t sound too sure that anything untoward had occurred. He produced a report conceding that “it is reasonable to believe that based on the nonverbal action of [the accuser] that John Doe believed he had consent.” Case over, right?
Guess again. In a bizarre interpretation of the presumption of innocence, the investigator argued, “However, the charge of this investigator, however [sic], is to determine if one of the stories is more likely than not.” In other words: Paquette seems to view his job not as determining whether it was more likely than not the accused student reasonably believed he had consent. Instead, he utilizes some vague standard of attempting to determine which person’s story the investigator found most likely. So if Paquette was 99 percent certain an accused student believed he had consent, that student theoretically could still be deemed a rapist by Georgia Tech if Paquette was 99.5 percent convinced the accuser had too much to drink.
How did Paquette reach his conclusion in this case? He determined—based on 12-month-after-the-fact conclusions—that the accuser was “very intoxicated.” (The second hookup occurred at a party; both students had been drinking.) According to Paquette, being very intoxicated made it “more likely than not” that the accuser was “incapacitated and incapable of giving consent.” In other words: it was more likely than not the accused was very intoxicated, and it’s more likely than not (according to Paquette’s wholly subjective standards) that a very intoxicated person will be incapacitated.
No wonder Judge Jones concluded that Paquette’s vision fell “very far from an ideal representation of due process.”
JD appealed. As occurred in the previous Georgia Tech case, the university appeals committee looked skeptically at Paquette’s work (especially his odd determinations of credibility), and overturned the finding. The accuser had five business days to file an appeal to the president; he didn’t do so. Case over, right?
Guess again. On the sixth business day, an appeal was filed—but not by the accuser. Instead, his parents filed the appeal. Rather than dismiss this as procedurally improper, the president heard the appeal, and restored Paquette’s finding. JD then exercised his final right of appeal, to the Board of Regents. Remarkably, they overturned the president’s actions (it seems very likely that the board was also aware of the dubious conduct in the other Georgia Tech case as well). Case over, right?
Guess again. The Georgia Tech president remanded the case to the appeals committee, but gave them a new charge, reiterating an extreme affirmative consent policy (“the initiator must obtain consent at every stage of sexual interaction”) and holding that “intoxication,” in and of itself, is enough to have “incapacitation,” and thus sexual assault. Under this extraordinary definition—which would make a good chunk of the sex between Georgia Tech students to be rape—the appeals committee reversed its original findings, and upheld Paquette’s judgment.
The juxtaposition between the two Georgia Tech cases is remarkable. In the first case, Paquette proclaimed that once a key witness lied to him, that decision alone undermined the witness’ credibility. So because the accused student in the first case lied to Paquette about sexual contact with another female student (regarding which Georgia Tech said he did nothing wrong), the investigator no longer deemed him credible regarding the allegation that led to his expulsion. But here, according to the complaint, the accuser made several false or misleading statement to Paquette—with no loss of credibility.
Will Judge Story show the courage that Judge Jones did not?