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University faces further litigation in sexual assault case

Federal judge upholds claims against U. for potentially violating Title IX policies in Phi Psi trial

Updated on Jan. 29, 2018 at 8:28 a.m.

Following a motion hearing held in October 2017, Chief Judge William Smith of the U.S. District Court for the District of Rhode Island ruled Jan. 16 on several complaints filed by a former Brown student in a sexual assault lawsuit against another former student, the University and the national and local leadership of Phi Kappa Psi. The judge dismissed claims of negligence against the University but upheld claims that it engaged in discriminatory and retaliatory behavior, violating Title IX policy. The recent ruling marks the latest development in the lawsuit, which began in 2016, as The Herald previously reported.

The suit centers around an October 2014 incident in which the student, identified as Jane Doe in court documents, and another female student attended a party at Sears House hosted by the fraternity Phi Kappa Psi and received two drinks allegedly spiked with a date rape drug. Following the party, Doe alleged that she was sexually assaulted by a student not affiliated with Phi Kappa Psi, The Herald previously reported. In the complaint’s list of defendants, Doe identifies the son of a University trustee, named as John Smith in legal documents, as the student who spiked her drink, according to a copy of Doe’s complaint obtained by The Herald. 

Doe sued Smith for assault and battery; of these two charges, the judge ruled to uphold her battery claim. Doe also sued the national fraternity organization, Phi Kappa Psi Fraternity, Inc., and the presidents and secretaries of the Rhode Island chapter of Phi Kappa Psi in 2014 and 2015 on the count of negligence — a claim that the judge ruled to uphold.

The motion hearing allowed defendants in the case to challenge Doe’s complaints in addition to requesting a dismissal from the suit.

In her suit, Doe contends that the University engaged in discriminatory behavior and retaliation in violation of Title IX policies, in addition to negligence, according to the copy of her complaint.

During the motion hearing, the University requested a judgment on Doe’s complaints and argued that Doe failed to state any claims requiring Brown to provide relief, according to a copy of the University’s motion for judgment on the pleadings obtained by The Herald.

After hearing arguments from lawyers representing each party in the case, the judge dismissed Doe’s claims of negligence.

Rhode Island law limits claims of negligent infliction of emotional distress to “those within the ‘zone-of-danger’ who are physically endangered by the acts of a negligent defendant, and bystanders related to a victim whom they witness being injured,” groups that do not include Doe, according to the judge’s ruling. Additionally, the judge dismissed Doe’s claim of University negligence in supervising the fraternity on the grounds that Brown did not have an obligation under Rhode Island law to protect students from any harmful behavior perpetrated by the group, according to the judge’s ruling.

However, the judge ruled that Doe had a plausible claim in accusing the University of violating Title IX practices.

Doe’s lawyers argued that the University demonstrated “deliberate indifference” to her rights protected by Title IX by failing to provide a “thorough disciplinary process for (her) claims to be investigated” and by improperly examining physical evidence, according to court documents reviewed by The Herald.

Specifically, Doe’s lawyers argued that the University mishandled Doe’s blood and urine samples. Rather than sending them to a “qualified forensic toxicology laboratory” capable of providing analysis for evidence, the University sent the samples to a medical laboratory which led to “unreliable and inconclusive results with no evidentiary value,” according to the court documents.

Furthermore, rather than testing the samples for the full range of possible date rape drugs, University officials ordered tests for two substances, GHB and flunitrazepam.

While Doe’s urine sample initially tested positive for traces of GHB, it was later deemed inconclusive by an independent examiner hired by the University, as The Herald previously reported.

Hair samples taken from the other female student who attended the party were also determined to be inconclusive for GHB by an independent company used by the University. However, this company has received criticism for producing unreliable and misleading work, as The Herald previously reported.

Doe contends that by sending her samples to faulty laboratories, the University lost evidence that may have aided her cases against her assailant and John Smith. Furthermore, Doe alleges that this loss of evidence left her as a “target for anger” from the fraternity. After the University notified community members that the samples were inconclusive, the fraternity spread fliers complaining about their treatment at the hands of the University over the course of the investigation. This caused Doe to experience a great deal of fear and anxiety, according to court documents obtained by The Herald.

Additionally, according to the complaint, Doe did not receive an interview from the Alpert Medical School despite being admitted into higher ranked medical schools, like Harvard and Stanford University. Doe alleges that her rejection from the Med School is evidence of retaliation in violation of Title IX.

During the hearing, lawyers for the University pushed back against allegations of being “deliberately indifferent” to Doe’s claims. “This was not a situation where the University was trying to sweep it under the rug,” said Thomas Bender, associate counsel for the University, pointing out that the University held three separate hearings to investigate the events that transpired in October 2014.

University lawyers also added during the hearing that the only way the University could be plausibly accused of being deliberately indifferent was “if they knew that what they were doing … wasn’t going to cut it.”

“The law makes plain that a response to Doe’s complaints does not, by itself, shield Brown from liability under Title IX; the nature of the response matters,” the federal judge wrote in his ruling.

Doe also sued Smith for assault and battery, but the judge dismissed her claim of assault. Richard Ratcliffe, the attorney for Smith, told The Herald that under common law, a legitimate claim for assault requires the victim to experience a “fear of impending harm.”

Because Doe did not allege that she “was in fear of harmful or offensive bodily contact” before ingesting her drink, her claim of assault was dismissed, according to the judge’s ruling. However, Doe’s claim of battery — the act of causing bodily harm — against Smith remains intact.

“My client is absolutely not responsible … for battery,” Ratcliffe said. “We believe that the complaint was very thin with respect to the allegations of battery. There was no medical evidence.”

However, Carolyn Wheeler, an attorney for Doe, told The Herald that the judge’s ruling was “a pretty good outcome, (given) that most claims survived.”

“Our case illustrates that it’s important to see that evidence is handled appropriately,” she added.

Ratcliffe said the ruling marks “a very early stage in the case. …  The judge isn’t determining any facts” but seeing “if what’s alleged establishes a claim.”

In an email to The Herald, Brian Clark, director of news and editorial development, wrote, “The University has reviewed the order and the counts remaining after the judge’s dismissal of the plaintiff’s negligence claims. The decision narrows the scope of the case and appears to reflect the court’s interest in hearing the arguments of the parties, which is understandable in light of national discussions regarding issues of sexual misconduct on college campuses. We believe that Brown has a strong case to present to the court as this matter proceeds in the months ahead.”

A trial, if one occurs, is expected to take place in the middle of 2019, Wheeler said.

Correction: A previous version of the article stated that a flier distributed by the fraternity Phi Kappa Psi complained about Jane Doe's allegations of sexual assault. In fact, the flier criticized the University's handling of the sexual assault investigation. The Herald regrets the error. The article has also been updated to include the fact that Doe's alleged assaulter was not affiliated with Phi Kappa Psi. 


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