Suing over Tawdry Campus Sex in Houston

The latest due process lawsuit—albeit one with quite unsympathetic defendants—has been filed, this one against the University of Houston. You can read the complaint here, and the motion for a preliminary injunction here.

The specifics of this case are tawdry. A male Houston student named Ryan McConnell, after a night of drinking heavily, hooked up with a female Houston undergrad, who also had been drinking heavily. They returned to his dorm room, had sexual intercourse, and fell asleep. At some point thereafter, McConnell’s girlfriend, Natalie Plummer, entered the room, found the two asleep and without clothes. Apparently enraged, she videotaped the duo with her phone, then awakened the accuser, kicked her out of the room (still, it seems, without clothes) and videotaped the accuser in the elevator. She then shared that video with a friend—apparently again out of anger with McConnell.

A case could be made, certainly, that Plummer was guilty of an invasion of privacy, by recording a fellow student without her consent and then disseminating the video. But according to the complaint, the local police investigated the issue and declined to pursue charges. McConnell, meanwhile, was certainly guilty of behaving in a caddish fashion. But even in today’s neo-Victorian academy, caddish behavior and criminal behavior are two separate things.

More than three months after the episode, the accuser filed a sexual assault complaint against both Plummer and McConnell. Yet the complaint (at least as described in the lawsuit) alleges only that McConnell guided the equally drunk accuser into his dorm room. (The accuser, inebriated, said she couldn’t remember what happened in the encounter itself.) The videotape appears to have been the prime evidence against Plummer. A month later, the school’s Equal Opportunity Services officer, Richard Baker, interviewed both Plummer and McConnell. Then, for eighteen months, nothing happened, until Baker obtained the video of the encounter from the UH police. (The complaint doesn’t say why it took Baker so long to get this material; or, indeed, how he obtained it, since his office lacks subpoena power.) On September 30, 2013, Baker informed the two students they were being charged with sexual assault. The school’s apparent theory is that McConnell raped the accuser, Plummer struck the accuser to facilitate the assault, and Plummer for some reason taped herself doing so, thereby creating a hostile environment in violation of Title IX.

Noting that “Dear Colleague” letter says that colleges must provide due process to accused students, the duo’s attorney, Joshua Adam Engel, aggressively defines the concept, arguing that “students facing discipline must be afforded the opportunity to defend, enforce or protect their rights through presentation of their own evidence, confrontation of adverse witnesses, and oral argument.” However unappealing the behavior of McConnell and Plummer might have been, it’s hard to argue that Houston gave them (or for that matter, anyone accused of sexual assault) meaningful due process.

Houston’s policy is a most unusual one, in one critical respect. When a student (described, most revealingly, as the “victim” by UH procedures: if the accuser is automatically a “victim,” what happens if the accuser isn’t telling the truth?) files a complaint, the Title IX office works with the Office of Equal Opportunity Services (EOS) to investigate. The EOS officer interviews the accuser and the accused, witnesses as “appropriate,” and any other information submitted by the two parties. If, on a preponderance (50.01 percent) threshold, the EOS officer believes that the accused student is a rapist, the officer submits a report and recommends sanctions. Even if the accused student is found not culpable, the EOS officer can recommend punishment in the form of “educational initiatives and/or trainings.”

In the McConnell/Plummer case, the EOS claimed the two were culpable. The two students disagreed. That’s when the odd nature of the UH policy kicks in: the EOS officer’s report—in which the accused student can’t cross-examine his accuser, and can’t even see the evidence against him—is the functional equivalent of a trial verdict. If found culpable, the accused student can “appeal” to a three-person hearing—but the hearing panel is “charged with upholding or rejecting EOS’ finding based on the preponderance of the evidence.”

The student thus enters the disciplinary hearing presumed guilty: he must prove that the EOS officer’s report was wrong. At this stage, the accused student can have an attorney—but the attorney can’t participate in the hearing. Since “rules of evidence and courtroom procedures” do not apply, hearsay is allowed. The accused student is guaranteed the right to ask questions only of his own side’s witnesses. He can request, in writing, that the chair of the hearing ask questions of the accuser, but that right isn’t guaranteed. In any event, the accuser isn’t even required to attend the hearing and testify in any way. Instead, her role can be assumed by the EOS officer, who by this point is, obviously, vested in defending his guilty finding. In the Plummer/McConnell case, the accuser didn’t personally appear at the hearing—so they never had a chance to cross-examine her, or even to hear her testimony. Everything instead was filtered through the EOS officer, who could exclude information as he saw fit.

The suit alleges a denial of due process, on grounds that “UH failed to provide Plummer and McConnell with a fair and unbiased investigation; and (2) UH relied solely on hearsay without providing Plummer and McConnell with the opportunity for effective cross-examination.” The suit also claims a Title IX violation, on grounds that McConnell and the accuser were equally drunk, yet only McConnell was charged.

We’ll see how Houston responds.