As the Amherst case moves toward eight months awaiting a ruling after a preliminary hearing, there was a minor development in the case: recent filings by the college, related to a delay of deadlines for subsequent filings, revealed that the accusing student (who I’ll call A.S.) successfully quashed the accused student’s subpoena. The ruling thus ensured that not only would A.S. not be deposed, but she would not need to produce any relevant documents in the case.
I’ve previously written about the Amherst case—perhaps the most egregiously unfair of the myriad due process cases that have emerged since the Dear Colleague letter. Having myself successfully resisted a third-party subpoena (when Duke attempted to compel me to reveal my sources in the lacrosse case), I’m sensitive to the ways in which the civil process can be abused. But the suggestion here that A.S.’s interests outweigh the obvious relevance of her testimony is puzzling.
In a ruling that was a model of circuitous reasoning, Judge James Robart, a Bush appointee, gave A.S. the benefit of the doubt on close legal issues because of her status as a sexual assault victim—in a case that challenged the basic fairness of the only proceeding that deemed her a sexual assault victim. (Despite an offer of facilitation by an Amherst administrator, A.S. pointedly declined to file a criminal complaint with police. Perhaps she realized that if she did so, she wouldn’t be able to conceal the text messages that undermined her credibility.) In so doing, Robart essentially accepted the legitimacy of Amherst’s procedurally dubious adjudication.
Robart ruled out a deposition on grounds that it “would force [A.S.] to relive a night in which she asserts Mr. Doe sexually assaulted her.” This was “heavy burden,” he argued, because “a live deposition would impose emotional and psychological trauma upon [A.S.].” Any “emotional and psychological trauma,” of course, would come only if A.S. was telling the truth when she testified to the Amherst panel—and the lawsuit provides considerable information, much of it from A.S.’s own texts, that calls into question the accuser’s truthfulness.
Even Robart conceded that supplying requested documents wouldn’t impose psychological trauma on the compromised accuser, but he ruled that the accused student’s requests were either “overbroad” or consisted of “communications that could readily be obtained from other sources” (that is, people who work at Amherst). Yet much 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 A.S. had not reduced anything about the incident to writing. So the subpoena asked A.S. 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 A.S., not any Amherst employees.
The subpoena also requested “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.” This, too, is material that’s critical to evaluating the fairness of Amherst’s disciplinary process, which no Amherst employee could provide.
Although the case was decided in Washington (where A.S. now lives), Judge Robart cited no precedents from Washington, or from Massachusetts, where the lawsuit is being tried. He primarily relied on Gonzales v. Google, Inc.—a California district court decision that arose out of the ACLU’s constitutional challenge to the Child Online Protection Act. Moreover, despite the obvious differences from the Amherst case in subject matter, requesting party (the federal government), and scope of request (initially, a list of all URLs on the Google search engine), Gonzales nonetheless required Google to turn over some information (a sample of URLs from its search index). Judge Robart, by contrast, admitted that the accused student’s subpoena could be narrowed, specifically with regard to the documents he was requesting, but disagreed with the Gonzales precedent on the wisdom of narrowing. Yet Gonzales was the only case in his opinion that received multiple citations.
A.S.’s motion to quash was filed by John Clune, a high-profile accusers’ rights attorney. (Among other cases, he represented Erica Kinsman in the Jameis Winston case.) His brief consisted of unsubstantiated claims that the sole purpose of the subpoena was to “harass” A.S. and suggestions that Max Stern, the accused student’s lawyer, somehow (for reasons Clune never got around to explaining) behaved improperly when he talked about the case on TV. Most outrageously, the brief wildly misinterprets the role that A.S.’s sexual history played in the accused student’s filing. According to Clune, this information was included “to portray her as someone who is promiscuous and thus more likely to have consented.” The lawsuit makes no such claim, nor anything resembling it. It included this information, since the texts showed that A.S. has misled both Amherst’s investigator and Amherst’s disciplinary panel about who she invited to her room after the incident with the accused student, when she extended the invitation, and for what purpose she extended the invitation.
That Clune came to A.S.’s side to prevent more information about her troubling behavior to come to light gave some sense of how damaging the accusers’ rights movement sees this case. That Robart credited this misrepresentation of the record is disappointing.
Ironically, whatever minor assistance the ruling might have to frustrating the Amherst student’s quest for justice, the victory might be a Pyrrhic one for the accusers’ rights movement as a whole. Judge Robart sent a message that the only way an accused student can obtain relevant evidence involving his accuser is—as a handful of accused students have done—to sue his accuser as well as the college. Expect more accusers to be added to future lawsuits as a result.