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Federal judge questions Fenves ruling in UT sex assault case


Judge Sparks didn’t rule on a motion for temporary injunction, meaning student’s suspension continues this fall.

Sparks called UT president’s statement equating intoxication to incapacitation “absurd.”

A federal judge questioned a decision by University of Texas President Gregory L. Fenves to overturn a hearing officer’s ruling and punish a male student accused of assault for having sex with a drunk female student after a sorority formal in 2016.

Judge Sam Sparks declined to rule on a motion for temporary injunction Friday in U.S. Western District Court, meaning the student’s five-semester suspension will continue through the fall. The student had hoped the judge would block Fenves’ decision as classes begin on Aug. 30.

But Sparks did suggest Fenves overreached in April by setting aside the hearing officer’s ruling that the student didn’t commit sexual assault, and removing the student from campus.

“It would appear the hearing is just a facade if the president makes the decision,” Sparks said.

Fenves didn’t appear in court Friday, just days after the student’s attorney filed a lawsuit that says the president should never have entered into the case.

The lawsuit details a drunken night in April 2016 when the man and the woman left a sorority formal and went back to his place.

UT records included in the court file say the woman agreed to have sex with him, but filed a complaint against him days later. They both had been drinking; the woman told investigators she had five cups of sangria on a boat ride that afternoon, but had stopped drinking four hours before sex.

The man told investigators the woman was stumbling and slurring her words on the walk back to his place.

“When did she become incapacitated?” Sparks said.

UT’s attorney, Sean Flammer, said he didn’t know.

The hearing officer found that the woman had made rational decisions both before and after sex. She appealed the decision to Fenves, who overruled the hearing officer and suspended the man, starting with the current summer session.

“Your hearing officer found she consented, and he just reverses that?” Sparks said. “Tell me that’s due process.”

The judge also expressed bewilderment that Fenves — or at least someone in his office — gets the final word on all appeals in cases of misconduct.

“He doesn’t delegate at all?” Sparks said.

In paperwork explaining his decision that the woman was too intoxicated to consent to sex, Fenves cited testimony from a witness who attended the formal. “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.”

In that same explanation, Fenves said “someone who is intoxicated cannot give consent to sexual activity because they are incapacitated.” Sparks called that assertion “absurd.” UT’s attorney said the comment was “a mistake” that didn’t represent the basis of Fenves’ decision.

“That was a poorly worded sentence,” Flammer said.

Flammer, of the Texas attorney general’s office, declined to comment outside of court.

The student’s attorney, Brian Roark, released a statement: “The hearing today was preliminary for the judge to hear from the parties and narrow the issues as the lawsuit moves forward. We were encouraged by comments made from all participants in the hearing and look forward to proceeding on the merits.”

Sparks said he’ll do his best to find time for a more thorough hearing before the start of the spring semester. He said he’d like to hear testimony from Fenves.

Roark was on the wrong end of some tough words from Sparks, who said his 37-page suit contained more information — and opinions — than he would’ve preferred.

“More editorializing than a man at a bar,” Sparks said.

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