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Athlete suspended for alleged sexual assault files second suit against University

Plaintiff previously sued University in January for breach of contract

<p>The lawsuit alleges that the University is guilty of breach of contract, discrimination under Title IX, negligent hiring and supervision, negligence, intentional infliction of emotional distress and violation of the Rhode Island Unfair Trade Practices and Consumer Protection Act.</p><p><br/></p>

The lawsuit alleges that the University is guilty of breach of contract, discrimination under Title IX, negligent hiring and supervision, negligence, intentional infliction of emotional distress and violation of the Rhode Island Unfair Trade Practices and Consumer Protection Act.


An athlete suspended in fall 2022 for an alleged sexual assault that took place in October 2021 has sued the University, claiming that it unfairly suspended him after conducting a biased Title IX investigation, according to court documents. Smith v. Brown University was filed in Rhode Island District Court Sept. 9. 

A previous lawsuit dealing with the same incident, also called Smith v. Brown University, was filed in Rhode Island District Court Jan. 14, The Herald previously reported. The two parties agreed to dismiss the suit Jan. 24.  

Both cases deal with a student-athlete, referred to under the pseudonym David Smith, who was accused of sexually assaulting a student, referred to using the pseudonym Jane Roe, on Oct. 30, 2021. Smith was initially suspended before the conclusion of a Title IX investigation, The Herald previously reported

After U.S. District Judge Mary McElroy ruled Jan. 25 that the University must reinstate a different student-athlete suspended under similar circumstances, Smith was allowed to return to campus until the conclusion of his Title IX investigation, according to court filings. 

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After the investigation found Smith responsible for the alleged assault, he was notified of his two-year suspension by the University Aug. 4, according to court filings. He appealed the University’s decision Aug. 11 and was notified that his appeal was denied Sept. 7. 

After Smith filed the court case Sept. 9, U.S. District Judge John McConnell Jr. issued an emergency injunction Sept. 19 allowing Smith to return to classes and athletic activities, preventing the University from taking further actions for the time being and reinstituting the no-contact order between Smith and Roe, according to court filings. 

In his ruling, McConnell wrote that Smith “demonstrated a high likelihood of success on the merits and … will suffer immediate irreparable harm without relief” should he be suspended.

“This Court further finds that in weighing the relative hardships between the parties and the public interest factors, allowing David Smith to remain a fully enrolled student in good community standing subject to a continuing mutual No-Contact order as set forth below is appropriate,” he added.  

The suit alleges several principal violations in the investigation by the University and by a third-party investigator hired by the University. It alleges that the University is guilty of breach of contract, discrimination under Title IX, negligent hiring and supervision, negligence, intentional infliction of emotional distress and violation of the Rhode Island Unfair Trade Practices and Consumer Protection Act. It also alleges that Donna Davis — the outside investigator hired by the University to investigate the case — and Davis Consulting Group, LLC  are guilty of negligence, intentional infliction of emotional distress and tortious interference with contractual relations against Smith.

Smith is seeking $75,000 in compensatory damages, punitive damages of a to-be-determined amount, a permanent injunction against the University allowing Smith to return to campus, a permanent injunction against the University to prevent any future investigations or disciplinary actions against Smith based on Roe’s complaint, an award covering the cost of the suit, attorneys’ fees and any other relief the court sees fit, according to court filings written by Smith’s legal team, which is composed of Maria Deaton, Patricia Hamill and Douglas Gansler. Smith and his attorneys are seeking a trial by jury. 

In an email to The Herald, University Spokesperson Brian Clark rejected the plaintiff’s claims of wrongdoing on the part of the University. “We strongly dispute the plaintiff’s allegations,” he wrote. “We have conducted the investigation and disciplinary process in accordance with Brown’s policies, which are in place to address complaints of sexual misconduct in a prompt, impartial and unbiased manner and are grounded in fairness and support to both complainants and respondents. We will present the facts and our legal arguments in court.”

In an Oct. 13 court filing, Steven Richard, the University’s attorney, criticized Smith for what he characterized as unfair treatment of Roe. “The Court should not condone nor permit Plaintiff’s transparently improper agenda to use this litigation as his public platform to disparage Jane Roe, a non-party to this litigation who remains an undergraduate at Brown and is not before the Court to defend herself,” he wrote. 

In a separate Oct. 13 court filing, the lawyers for Donna Davis and Davis Consulting Group, LLC, Luana DiSarra Scavone and Joel Fishbein, denied many of the allegations against her. 

They argued that Smith’s suspension did not arise due to misconduct on the part of Davis. Smith “was found responsible because the hearing panel judged his testimony and presentation to lack fundamental credibility, and nothing found in Plaintiff’s 113 page Complaint refutes that obvious conclusion,” they wrote in the filing. 

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Smith “was disciplined because of his own acts, and not as a result of the alleged acts and omissions” of Davis, they added. 

Smith, according to court filings, was investigated under the University’s “Sexual and Gender-based Misconduct Policies,” which his lawyers characterized as a “watered-down” version of the Title IX policy. “This is Brown’s procedure of choice because this process makes it virtually impossible to question accusers (who are overwhelmingly female) while eliminating any semblance of due process and fairness to the accused (who are overwhelmingly male),” Smith’s lawyers wrote. 

In the University’s filing, Richard responded that “contrary to what Plaintiff wrongly pleads, Brown is entitled to and correctly applied its Sexual and Gender-Based Misconduct Policy and the related Sexual and Gender-Based Misconduct Complaint Procedure (which Plaintiff calls the ‘Non-Title IX Policies’) to address alleged student-on-student sexual misconduct that occurred within Plaintiff’s off-campus bedroom outside of Brown’s ‘education program or activity.’”

The University’s Sexual and Gender-based Misconduct Policy addresses sexual violence and harassment that falls outside the legal purview of the Title IX and Gender Equity Office, The Herald previously reported. The policy adds to existing regulations under Title IX, University policy and Rhode Island state law, such as by applying Title IX rules to cases that take place off-campus between Brown-affiliated individuals or during Brown-sponsored programs.

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The policy, which was implemented in March 2021, also does not allow direct questioning of witnesses by the opposing party’s advisor. 

The University hired Davis to head the investigation, who Smith’s lawyers allege has received criticisms for her handling of university investigations in the past, pointing to a Medium article written about an investigation at the University of Texas at Austin. They also claimed that she conducted Smith’s investigation in a biased manner, noting that she only spoke to three witnesses, all of whom they claim were close to or suggested by Roe. 

In a separate court filing, Davis’s lawyers denied the allegations made in the article, claiming that it was written by a “disgruntled” student who was not satisfied with the results of Davis’s investigation. Davis’s lawyers also acknowledged that she only interviewed three witnesses but rejected the claim that this reflected bias in favor of Roe.

The filings also allege that Smith was told not to speak to any possible witnesses, claiming that Davis decided not to interview certain witnesses whose testimony they claim would benefit Smith. Davis’s lawyers noted that while Smith was not allowed to speak to possible witnesses, that did not preclude him from identifying possible witnesses.  

Smith’s lawyers further argued Smith identified one witness who they claim Davis subsequently took measures to discredit by qualifying their testimony in the written report. “In contrast, the investigator accepted statements from Jane’s two witnesses … at face value, without questioning or analyzing their blatantly inconsistent and illogical stories,” they added. 

Davis’s lawyers denied these claims, acknowledging that both Davis and the University individually told Smith not to contact witnesses but noting that Smith and Roe were given the same confidentiality instructions. 

Smith’s lawyers also allege that Davis’s “misrepresentation of the evidence she did obtain, particularly of Smith’s own interview, was egregiously deceptive and malicious.” 

Smith’s lawyers added that because of his dissatisfaction with the investigative process and distrust of Davis, Smith decided to record his interview with her. Smith’s lawyers allege in the filing that the recording revealed discrepancies between what Smith told Davis and what was included in the report. 

Davis’s lawyers responded in a court filing that she “lack(s) knowledge or information sufficient to form a belief about the truth of these quotations” because she was unaware the interview was being recorded and had not been given access to the recording by Smith. 

In the filing, Richard added that Smith “never submitted the tape recording to Brown, while having the right and every opportunity to do so throughout the investigative, hearing and appeal phases of Brown’s procedures.”

Smith’s lawyers allege that Smith described his encounter with Roe as “unambiguously consensual,” according to court filings. They allege that “the investigator decided to replace Smith’s overwhelmingly consistent and clear-headed account of what occurred with her own alternative version of Smith’s account, one in which she changed virtually all of Smith’s words so as to have him admit he never obtained Jane’s affirmative consent for their sexual activity.”

In the responding filing, Davis’s lawyers denied that she misrepresented Smith’s statements in her report. 

As part of the investigative process, Roe submitted photos of what she said were signs of physical trauma. According to the filing, two independent medical experts hired by Smith disputed whether or not the photos showed signs of trauma, but their findings were not included in the final report. Davis’s lawyers denied that she was responsible for the omission. 

Smith’s lawyers additionally allege that Roe “tampered with evidence” and was “unethically assist(ed)” by Davis. According to the filing, Roe secretly recorded a conversation with Smith but only submitted four short excerpts to Davis, who they claim did not ask for the full file. They added that Smith was able to gain access to the full recording after submitting a request to the University’s Title IX coordinator. The lawyers continued that Davis falsely claimed that she asked for the full recording and misrepresented what constituted the full recording, a process that they claim the Title IX coordinator allowed to happen. 

Davis’s lawyers denied these claims in their filing. 

As a result of these alleged acts of misconduct, the University allowed Smith’s “hearing to move ahead based on the false and incomplete record its investigator put forward, … (making) it impossible for (Smith) to defend himself,” Smith’s lawyers claimed in their filing.

The hearing itself, according to Smith’s lawyers, did not treat him fairly, favoring Roe’s testimony and alleging that, in presenting her report the way she did, “the investigator explicitly told the hearing panel that Jane was credible and that they should ignore (Smith’s) defense.”

In response to these allegations, Davis’s lawyers wrote that they “deny that they fabricated anything or that they included inaccuracies to remain in the report.” They also disputed the characterizations of Davis’s statement to the panel as biased and untrue. 

Richard wrote that, despite Smith’s claims, Roe described being sexually assaulted by Smith and “reiterated that she did not consent in any way” to the encounter. 

Smith’s lawyers also claim that Roe’s presence on Tinder undermined her claim that she was sexually assaulted, noting the contents of her account’s bio in the filing. “The panel found Jane’s behavior following the assault to be consistent with trauma, yet Jane was actively seeking matches on Tinder, a site designed specifically to facilitate one-time hook-ups among strangers,” they wrote. 

According to the filing, Smith submitted an appeal Aug. 11 in an effort to rectify what he and his lawyers alleged was a flawed investigative process but was ultimately denied. “His appeal, like all his objections throughout Brown’s Kafkaesque proceeding, fell on deaf ears and Brown’s appeal panel attempted to reshape the record evidence to make (Smith) look culpable and to justify the finding against him,” Smith’s lawyers wrote. 

In response, Richard wrote in the filing that the “hearing panel considered Plaintiff’s contentions concerning the incident and post-incident events and determined that the preponderance of the evidence justified the finding of Plaintiff’s responsibility for sexually assaulting Jane Roe.”

As part of the filing, Smith’s lawyers contend that the University’s Title IX policy and survivor-focused policies dealing with sexual violence in gender are unfair to the accused. At one point in the filing, they write that “pro-‘victim’ bias violates Title IX.” 

“Upon information and belief, Brown’s lack of fairness in its handling of the disciplinary proceeding in (Smith’s) case was intentional and was motivated by institutional gender bias created by a campus climate that supported student ‘survivors’ of sexual assault, who are overwhelmingly female and who are presumed to be victims based on their accusation before an investigation and adjudication even begins, and under pressure from a class action and its associated negative press in which Brown is alleged to have mishandled and failed to prevent systemic sexual assault of its female student population,” they added.

In the court filings, Richard defended Brown’s procedures for responding to accusations of sexual assault. “Brown addresses all allegations of sexual misconduct (in) a gender-neutral manner in accordance with its policies and procedures respecting the rights of both complainants and respondents,” he wrote.


Peter Swope

Peter Swope is the senior editor of digital engagement for The Brown Daily Herald's 133rd Editorial Board. He previously served as a Sports section editor and has also written stories for University News. Peter is a junior from New Jersey studying history. 



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