A University of Texas student claims in a lawsuit that UT President Gregory L. Fenves misapplied the school’s sexual assault policy and suspended him for five semesters even though his accuser agreed to have sex after a sorority formal in spring 2016.
The case, which raises questions about the rights of the accused, comes amid national and local concern over the prevalence of campus sexual assault.
According to the lawsuit filed Monday in U.S. District Court in Austin, Fenves on April 12 overruled a university hearing officer who determined that there had been no assault. In a letter informing the student of his suspension, Fenves asserted that the woman was highly intoxicated and “someone who is intoxicated cannot give consent to sexual activity because they are incapacitated.”
Fenves, citing testimony by a witness who attended the formal, added, “While parties may disagree as to whether intoxication and incapacitation are synonymous, certainly, someone described as: ‘incredibly intoxicated, no longer coherent, at a point where she needed to be taken home away from the event because she couldn’t form sentences,’ meets the definition of incapacitated.”
The lawsuit accuses Fenves of coming up with his own standard for incapacitation and ignoring the university’s standard, which defines it as “a state of being that prevents an individual from having the capacity to give consent” and “could result from the use of drugs or alcohol.”
The lawsuit also says Fenves has a possible conflict of interest because the father of the woman is a university donor who gave a significant sum within a month of her allegations. And, while the school’s investigation was ongoing, the lawsuit says the university brought on the father to be an adviser at the school.
Brian Roark, the attorney who filed the suit, said in a statement to the American-Statesman that if Fenves’ decision stands, it would subject “thousands of innocent students to being kicked out of school for engaging in behavior that is both legal and within the acceptable norm for many, if not most, Americans of college age, whether they are students or not.”
It’s unclear whether Fenves, who has been president since June 2015, has overruled a hearing examiner’s decision in any other sexual assault cases.
UT spokesman J.B. Bird said the university generally does not comment on pending litigation and, due to federal privacy laws, does not comment on student disciplinary measures.
“Our policies and procedures in such cases are followed and applied with care and diligence at all levels, including appeals to the president during which he makes decisions only based upon the record in the case,” Bird said. “It is common for students to appeal cases to the president and for him to exercise his role of responding to their appeals.”
A survey of UT undergraduates released in March found that 15 percent of women reported that they had been raped, through force, threat of force, incapacitation or other forms of coercion such as lies and verbal pressure. A White House task force concluded that 1 in 5 women is sexually assaulted while in college. And Baylor University is facing a cascade of lawsuits by women who claim they were attacked and their cases ignored or bungled by the university for years; the scandal led to the firing of the football coach and the demotion and eventual departure of the school’s president.
Students drank on boat
The lawsuit does not identify either of the students, calling him John Doe and her Jane Roe.
The lawsuit says the two students were nearing the end of their sophomore years on April 16, 2016, when the woman invited the man to her sorority’s boat party on Lake Austin. The woman told investigators she had five cups of sangria — a drink that contains red wine, fruit and sometimes brandy. She said she consumed no more alcohol the rest of the day and night. The man said he also had been drinking. After the boat party ended, the two of them took a bus to her sorority’s formal and stayed there for about 90 minutes before returning to her sorority’s house to check in and get something to eat.
Then, according to the lawsuit, they walked to the man’s apartment where, the woman later told investigators, she verbally agreed to have sex. It had been more than four hours since her last drink, according to the lawsuit. By asking the woman for consent, the lawsuit says the man adhered to UT advice to students, “Yes Means Yes.” The slogan is visible on campus flyers posted by the group Voices Against Violence.
“A few days later, Jane decided that she had actually been too intoxicated to make a good decision about whether or not she wanted to have sex with John that night,” the lawsuit reads.
On Feb. 24, hearing officer Conrad Fjetland, a chemistry lecturer at UT, ruled in favor of the man, concluding that “the complainant made rational decisions throughout much of the evening prior to and after the sexual intercourse.”
But in reversing the decision, Fenves drew on comments the male student made about his accuser “stumbling” on the walk to his apartment. “Under these conditions, an inebriated party has no ability to consent to sex,” Fenves wrote.
Reinstatement, damages sought
Roark, the attorney who filed the suit, formerly taught law at UT and has a history of battling the school on sexual assault matters. In February 2016, he filed a lawsuit on behalf of two male students who faced disciplinary action for sexual assault. A Travis County judge dismissed the suit, letting the university hearing process play out. Roark said the hearing officer in both cases ruled in favor of his client.
In October 2015, Roark successfully defended Longhorns football player Kendall Sanders in a sexual assault case that went to trial in Travis County. A female student accused Sanders and teammate Montrel Meander of rape after a night out downtown in June 2014. A jury acquitted Sanders; the district attorney then dropped Meander’s charges. UT had previously expelled both men and dismissed them from the football team.
In the lawsuit, Roark accuses Fenves of bowing to public pressure, citing an April 22 story in The Dallas Morning News in which UT System Chancellor Bill McRaven says donors praised him for the survey that revealed 15 percent of female undergraduates have been raped. Too, the lawsuit says, by so strongly speaking out against campus sexual assault, Fenves “allows advocacy to leak into what should be neutral decision-making.”
The suspended student wants a jury to order his reinstatement to UT and to award damages, including past and future economic losses and loss of educational and career opportunities.
“If parents have a child attending the university, they should now be worried about their child potentially being branded as a rapist and forced out of school for actions that consenting adults have been doing for thousands of years — drinking alcohol and having consensual sex,” Roark said.
NEW LAWS ADDRESS SEXUAL ASSAULT ON CAMPUS
State lawmakers this year passed, and Gov. Greg Abbott signed, legislation giving sexual assault victims and witnesses an easier path to report such incidents to law enforcement and campus authorities. The legislation grants amnesty against prosecution and student conduct code sanctions for underage drinking by victims or witnesses of sexual assault who report such incidents. It also requires public and private schools to offer online reporting, including anonymous reporting, of sexual assault, sexual harassment, dating violence and stalking.