published Wednesday, August 24th, 2011

Sewanee $3 million breach-of-contract lawsuit trial begins

"John Doe" exits the Joel W. Solomon Federal Building for lunch on Tuesday.
"John Doe" exits the Joel W. Solomon Federal Building for lunch on Tuesday.
Photo by Dan Henry /Chattanooga Times Free Press.

A $3 million breach-of-contract lawsuit trial against Sewanee: The University of the South enters its second day today with lawyers questioning an expert witness on college sexual harassment and assault policies.

The plaintiff, identified only as John Doe in court documents, is suing the school in federal court for negligence and breach of contract, claiming he received no due process when forced to leave following a rape accusation by another student. The female student later left the school for drug and alcohol treatment and did not pursue criminal charges against Doe.

"Instead of being careful with their conduct, the university chose to rush to judgment," Doe's attorney Charles Wayne told jurors in his opening statement Tuesday afternoon.

Doe seeks money for damage to his reputation and loss of future earnings.

"Any harm to his reputation came from his actions and the consequences of his actions," Sewanee's attorney, Rosemarie Bryan, said in court.

Bryan told jurors that Doe's attorneys would "nitpick" the process of how Sewanee officials decided to expel Doe, a freshman at the time of the incident, but the university followed procedures nearly perfectly and Doe simply didn't like the result.

Attorneys on both sides declined to comment on the case outside the courtroom.

U.S. District Judge Harry "Sandy" Mattice told the court that the trial could last until Aug. 31.

Sewanee spokeswoman Laurie Saxton offered a written statement, which said the university aims to treat all students fairly, has confidence in its disciplinary process and looks forward to presenting its case.

Wayne and his co-counsel, Elisha King, called Brett Sokolow as their first witness Tuesday afternoon. Sokolow is considered an expert witness on sexual harassment and assault policies. He is the president of the National Center for Higher Education Risk Management and consults hundreds of colleges on their policies related to sexual harassment.

Sokolow testified this was the first time he has worked as a witness on behalf of someone accused in a sexual assault. In all other instances, he has testified on behalf of the university or the victim of a sexual assault.

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Wayne asked Sokolow for his opinion on how Sewanee handled Doe's case.

"The university did not satisfy the standard of care," Sokolow responded.

On Aug. 29, 2008, Doe and an 18-year-old female freshman had sexual intercourse in his dorm room, according to court documents. The woman, identified as A.B., stayed for a few hours after the act, left about 7 a.m. and called police to report she had been raped by Doe.

In court, Wayne laid out the timeline of events Doe faced.

On Sept. 16, 2008, A.B. met with Sewanee Dean Eric Hartman, who handles student disciplinary actions. A.B. related her memory of the alleged rape and made a written statement detailing the incident.

Based on her statement, Hartman categorized the allegation as rape and contacted faculty to begin an investigation.

Two days later, Hartman spoke with Doe, informing him that he had been charged with violating the school's sexual harassment and assault policy and that there would be a hearing by the faculty committee the following day.

Wayne told jurors that Hartman told Doe to bring a character witness and talk with his faculty-appointed advocate before the committee meeting. Doe also was told that he would not be allowed into the proceedings except for when he was called to testify, Wayne said.

Doe said Hartman asked for a written statement and advised Doe to say he was too drunk to know what was going on the night of the incident and that he is sorry.

The committee met the next day and, within a few hours, found Doe guilty and told him he had two days to leave campus.

Hartman told Doe to "destroy" all related materials and that appealing the decision could increase his punishment and possibly cause A.B. to pursue criminal charges, Wayne told the jury. Doe's options, according to Hartman, were to leave school for one semester, reapply for admission with the incident remaining on his student record or withdraw for a year and reapply for the next fall with a clean record.

Doe left campus and decided on the one-year option, but later decided not to return. In June 2009, he and his parents, identified as James and Mary Doe, filed the lawsuit.

Jury selection took the entire morning Tuesday. Seven women and two men comprise the nine-member jury.

about Todd South...

Todd South covers courts, poverty, technology, military and veterans for the Times Free Press. He has worked at the paper since 2008 and previously covered crime and safety in Southeast Tennessee and North Georgia. Todd’s hometown is Dodge City, Kan. He served five years in the U.S. Marine Corps and deployed to Iraq before returning to school for his journalism degree from the University of Georgia. Todd previously worked at the Anniston (Ala.) Star. Contact ...

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gator said...

Not taking his side over hers (because I detest rape or rapists), but he DOES deserve to face his accuser, and if not, then her testimony should be thrown out.

August 24, 2011 at 8:35 a.m.
Humphrey said...

Sewanee is a private institution. They can put a sexual harassment policy in place and enforce it as they see fit. If the sexual harassment policy states that this type of conduct can lead to expulsion, then the school does not need to establish that a rape occurred beyond a shadow of a doubt; they need only establish that the sexual harassment policy of the school was violated.

August 24, 2011 at 9:38 a.m.
rolando said...

As I understand the original charges against Doe, Humph, there was no general violation of the school's policy -- other than he was accused of rape, falsely or not. The charge was rather uniquely applied...and therein lies the problem. If the University's policy states that complaints of sexual harassment are to be taken as face value -- as this one apparently was -- and the "rapist/abuser" expelled, they acted correctly...provided they always do that to rapists/abusers. Same thing with the Dean advising the accused to make apparent/possible false statements, thereby ensuring the expulsion.

An expert witness on sexual harassment/abuse said, "The university did not satisfy the standard of care".

August 24, 2011 at 10:07 a.m.
Humphrey said...

Rolando I'm just saying its their school, their rules, they can kick out who they want.

August 24, 2011 at 1:46 p.m.
Trez said...

Humphrey, I agree wholeheartedly. It is both a private institution, as well as in concert with Tennessee state law. As per TN law, after having one alcoholic drink, no individual can consent to sexual intercourse (which is defined as penetration of an orifice).

Seems like a no-brainer to me.

August 24, 2011 at 2:20 p.m.
Cannon said...

Trez: By your logic, if he had an alcoholic drink he could not consent. In that case maybe it was her who raped him, correct?

August 24, 2011 at 4:44 p.m.
hcirehttae said...

"As per TN law, after having one alcoholic drink, no individual can consent to sexual intercourse"

Huh? You can't be serious that's the law in Tennessee, or anywhere on this planet.

August 24, 2011 at 11:09 p.m.
TXAG72 said...

Gator, his accuser has nothing to do with this trial. This is not a rape trial. The trial is about whether or not John Doe's rights as a student were violated. There was NO rape charge.

August 25, 2011 at 9:16 p.m.
markj said...

Humphrey: Just because an organization writes down on a piece of paper that this is their policy doesn't mean that they have no legal liability. To take an extreme example: Suppose the university decided that to prevent thefts, they will establish a policy declaring the right to strip-search any student before he or she is permitted to leave the building. School officials start regularly strip-searching all attractive young women. Would you seriously say that because this is a written policy, that that makes it okay? Do you think a court would reject a law suit from an offended student on the grounds that the university followed the written policy?

Businesses are sued over their company policies all the time. Some of these lawsuits I find reasonable and some I don't: You would probably say the same. But a little thought will show that you can't give yourself legal privileges just by writing on a piece of paper that you want them or make yourself immune from lawsuits just by saying you want to be. If you could, every company would just write, "We can do whatever we want to any employee, customer, or any other person at any time for any reason," and then all law suits would be forever banned.

September 7, 2011 at 1:44 a.m.
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