The lawsuit brought by a Boston College alumnus against the University for allegedly interfering in his 2012 disciplinary hearing over sexual assault accusations went to jury trial on Monday.
The alumnus—identified only as “John Doe” in court documents—brought the lawsuit after the University found him responsible for sexually assaulting a fellow student on the annual AHANA+ Leadership Council Boat Cruise in 2012. Doe was covering the cruise for The Heights when the incident occurred. The University suspended him for three semesters, and he initially sought $3 million in damages and an expunged disciplinary record.
Doe was arrested the night of the cruise and charged with indecent assault and battery, but forensic evidence and video analysis released in early 2013 suggested that Doe did not commit the alleged assault. Prosecutors officially dropped the charges in May 2014.
The scope of the trial had been limited significantly—per presiding District Court Judge Denise Casper’s instructions, jurors were to consider only whether administrators improperly interfered in the hearings through two key communications, violating the Student Code of Conduct and the implied promise of basic fairness.
Although the jurors heard testimonies related to Doe’s claim that another student—identified in court as “JK”—committed the alleged sexual assault and the hearing process itself, such information was only used to establish background surrounding the case.
Casper instructed the jury to consider only three questions: whether a contract—both explicit and implicit—existed in the student guide, whether there was a breach of contract, and whether Doe is owed damages.
The jury could not determine whether the board gave enough consideration to Doe’s alternate culprit defense or if it should have waited for the potentially exculpatory evidence to surface in the criminal investigation.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”Casper instructed the jury to consider only three questions: whether a contract—both explicit and implicit—existed in the student guide, whether there was a breach of contract, and whether Doe is owed damages.” parallax=”off” direction=”left” revealfx=”off”]
In the months leading up to the trial, Casper ruled out the testimony of several witnesses who would have testified about whether BC violated Title IX, the role of the University’s general counsel in the disciplinary process, and Doe’s emotional state around the time of the disciplinary process, as well as in the years that followed.
Opening Arguments Leads to Questions Over Scope
Doe’s lawyers began opening arguments by detailing the sequence of events surrounding the alleged sexual assault, including the criminal procedings and the prosecutors’ decision to drop to charges—which drew admonishment from Casper after the jury had left them room.
Doe’s lawyers closed their opening arguments Monday by asking the jury to consider the “promises broken” by the University, both with regard to the alternate culprit defense and the alleged interference by the Dean of Students office.
BC used its opening argument to remind the jurors of the narrow scope of the case, emphasizing that their eventual verdict could only address the accusation of improper interference through the two communications in question. The University made a special point of noting that the criminal proceedings, the evidence that ultimately ended them, the hearing process, and its outcome were not to be considered.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”Doe’s lawyers closed their opening arguments Monday by asking the jury to consider the “promises broken” by the University.” parallax=”off” direction=”left” revealfx=”off”]
The University also brought up damages, saying that, even if the jury is to rule in favor of Doe, there is no evidence of economic harm—Doe successfully returned and graduated from BC and is currently enrolled in law school.
Testimonies Sketch the Events of the Cruise
“Witnesses and Doe’s lawyers recreated the events of the boat cruise for the jury.”
On the night of the boat cruise—Oct. 20, 2012—Doe made his way across the dance floor with JK, an acquaintance of his. At one point, the victim—identified in court as “AB”—turned around and yelled something at Doe, believing him to have just sexually assaulted her.
Doe would later tell the board that JK—who had been drinking that night—turned to him moments after the alleged sexual assault occured to say, “Sorry dude, that was my bad.” Throughout the trial, Doe’s lawyers emphasized that JK texted Doe and several of his friends, concerned about the events of that night—which Doe’s lawyers presented as the effects of a guilty conscience and severe intoxication.
Later in the trial, Doe’s lawyers presented a text JK had sent Doe the next morning in which he admitted to having “0 recollection of the boat cruise… What did they say they took u in for?”
Shortly afterward, security guards found Doe and brought him to state police, who put bags over his hands in order to perform forensic testing. Doe spent the night in jail and a family friend bailed him out early the next morning.
In his own testimony at the trial, Doe said that he had consumed two beers and no drugs that night, and was sober by the time of the alleged assault.
Pre-Hearing Meetings Set the Stage
Later that October, Doe had three meetings with then-Senior Associate Dean of Students Carol Hughes, whom his lawyers allegedly refused to wait for forensic evidence to return, preferring a two-week timeline.
A particular point of interest for Doe’s representatives was how much Hughes knew about Doe’s alternative culprit defense before the hearing began. Hughes testified that Doe told her at their initial meeting that he had not committed the assault and that it was a case of mistaken identity. She was not informed, however, that Doe was accusing JK of committing the assault until Doe’s attorney informed BC General Counsel Joseph Herlihy of that fact only days before the disciplinary proceedings were set to begin.
Hughes also testified that she was “concerned” about the new allegation. She initially did not recall, but Doe’s lawyers directed her to a 2015 sworn deposition she gave. She then confirmed that she did express concern over the new allegation because she did not know what it would mean for the case when Doe named JK as the alternative culprit at the hearing.
Upon learning this information, Hughes asked Doe to meet with her again to discuss the new allegation. Doe initially agreed, but called her back and informed her that he wanted his lawyer present. Hughes testified that she responded by saying she needed to talk to Doe, not his lawyer. Doe then, with the advice of his lawyer, declined to meet with Hughes and asked her to call his lawyer. Hughes responded by saying that was not necessary.
Doe’s lawyers asked Hughes if Doe was allowed to defend himself using an alternative culprit defense. She answered yes, but that the hearing board had to rule on the current complaint—AB’s accusation that Doe had assaulted her—before taking any other action.
Hughes confirmed previous testimony that AB’s family was willing to sue BC if Doe was not brought to justice. Herlihy also testified that AB’s father would occasionally make allusions to suing the University to him during phone calls about academic accommodations.
Doe’s lawyers suggested that administrators who interacted with AB’s father may have been motivated to see Doe found responsible.
The Disciplinary Hearing Begins
The board, led by Catherine-Mary Rivera, then-program manager in the Office of Residential Life, convened on Nov. 8. There were four other people on the board: Brian Fishman, BC ’13 and BC Law ’16; William Mills Jr., then-director of community affairs; Norah Wylie, a BC Law professor who had previously served in an administrative role; and Robert Darrell Peterson, then-director of the Office of Graduate Students.
Hughes testified that she never erroneously told the board that either AB or two witnesses had actually seen Doe commit the assault ahead of the hearing. Doe’s attorneys asked Hughes if she believed those things to be true after meeting with AB initially to take her statement, which Hughes denied. She also denied believing Doe was guilty before the disciplinary proceedings began.
In her testimony before the jury, Rivera said that the hearing board did not see the disciplinary hearing “as a search for truth.” Instead, she said that the hearing board was supposed to determine whether there was a violation of the Student Code of Conduct and whether such a violation was more likely than not to have occurred, citing the “preponderance of evidence” standard the hearing board uses as a basis for decisions. The preponderance of evidence standard is a decision based on whether evidence points to at least a 51 percent chance a violation occurred.
Doe’s lawyers told the jury that that no evidence of the crime came up on the first day of hearings, nor did the board call JK as a witness. Doe, who also testified at the trial, said that his primary defense before the board was the alternate culprit defense.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”In her testimony before the jury, Rivera said that the hearing board did not see the disciplinary hearing “as a search for truth.” ” parallax=”off” direction=”left” revealfx=”off”]
Doe went on to list the three witnesses he brought before the panel: Tom, a friend present at the cruise who testified he never saw Doe touch anyone; Randy, who was on a different part of the dance floor and also testified to Doe’s behavior; and Joseph, Doe’s roommate at the time, who spoke about Doe’s alternate culprit defense. Doe also submitted several written character references, including one from a law firm he had worked at one summer.
Hughes met with JK the following day to assure him that he would appear only as a witness and not a suspect.
On Nov. 11, Hughes sent an email to Herlihy and Assistant Dean for Conduct Christine Davis about JK’s upcoming appearance. In it, Hughes said that “[she] was very clear with JK that he was coming as a witness and not being charged with anything. I think it might be good to talk to Catherine-Mary [Rivera] about how the board might put him at ease.”
This email is one of two communications that Doe’s lawyers claim interfere with the alternate culprit defense. Davis had held her position at BC for just six days and reported directly to Hughes.
Davis—who was called as the University’s first witness—testified that she did not pass the message on to Rivera, as she didn’t take it as an order. Doe’s lawyers pressed her on this claim, casting doubt on the likelihood that Davis interpreted the email as a casual observation after just six days on the job.
Rivera told the jury that she did not recall Davis passing this message to her. Fishman, Mills, Wylie, and Peterson all testified that Rivera did not tell them to put JK “at ease” and that they did not give JK special treatment.
JK offered testimony to the board on the second day of the hearing. He testified that he had not said “Sorry dude, that was my bad,” and had not assaulted AB, according to multiple people at the hearings. JK also claimed that while he had been drinking the night of the cruise, he had lied to Doe when he claimed to have no recollection of that night.
Rivera and the other four members of the board all told the jury that the board had questions about JK’s honesty due to his story changing in regard to whether or not he blacked out on the night of the cruise and his claim of lying to Doe that he blacked out. Altogether, concerns over how drunk JK—and other witnesses—were on the cruise cast doubt on the legitimacy of each witness’ testimony, they said.
Another witness that day was “Betsy,” a friend of the victim who was present at the time of the assault.
Betsy told the board that she did not see the alleged sexual assault and that three or four people stood between AB and Doe at the time of the sexual assault. Rivera recalled that no witnesses told the board that they saw Doe touch AB or bend over near here. She also noted that no witnesses placed JK within the immediate vicinity of Doe.
In their testimonies, all five members of the board said that they found Betsy, who was sober the night of the cruise, to be very credible.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”The five members of the board all told the jury that they had questions about JK’s honesty due to his story changing in regard to whether or not he blacked out on the night of the cruise.” parallax=”off” direction=”left” revealfx=”off”]
In her final statement, AB told the board that nobody would be safe on campus if the University did not expel Doe, according to the testimony of Conrad Bletzer Jr., the attorney who represented Doe throughout the disciplinary process.
The Board Weights Its Options
On Nov. 16, the panel had still not come to any conclusions. In an email to Hughes, Rivera said that they were not leaning toward either “responsible” or “not responsible” due to the difficulty of making a decision of such magnitude on the basis of the preponderance of evidence standard. She then asked Hughes if “no finding” was an option. In addition, Rivera wrote that she was operating under the notion that the board should not come to a no finding conclusion.
Hughes later allegedly told Rivera to say that then-Dean of Students Paul Chebator said such a result would be “discouraged,” according to Doe’s lawyers—the second key communication.
At the trial, Rivera testified that she had no recollection of that communication, while Hughes confirmed both the conversation with Chebator and the one with Rivera.
The other four members of the board said in their testimonies that Rivera said nothing to suggest a no finding ruling would be “discouraged.”
On Nov. 19, the panel found Doe responsible for indecent assault and battery—a lesser finding than the penetrative assault that had been alleged. The board came to this conclusion based on the theory that the alleged time frame—a matter of seconds—in which this occurred, combined with the fact that AB’s initial feeling after the assault was not pain, meant that it was less likely than not that penetration had occurred, according to Rivera’s testimony.
In her testimony, Rivera said that although no witness—including the victim, AB—told the board that someone had touched her either on the outside of her clothing or on the inside of her clothing without penetrating her, the ultimate decision by the hearing board was to find Doe guilty of only touching AB under her skirt.
Peterson revealed in his testimony that while he initially harbored doubts about Doe’s guilt and JK’s innocence, his concerns were addressed during deliberations.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”The other four members of the board said in their testimonies that Rivera said nothing to suggest a no finding ruling would be “discouraged.” ” parallax=”off” direction=”left” revealfx=”off”]
Doe’s lawyers asked several witnesses if anybody outside the board contributed to the finding or the explanation of the rationale behind the lesser charge.
Rivera testified that Chebator helped the board put into words what the new, lesser charge they had found Doe guilty of was: indecent assault and battery. She also said that Herlihy helped her write a bullet point explaining the rationale behind the board’s decision that no penetration occurred. Herlihy made the same claim in his own testimony.
The charge they settled on—responsible but with a lesser charge—was in large part due to the fact that Doe was the only witness to place JK at the scene of the assault, according to the four panelists.
Doe’s Lawyers Push for Damages
Doe’s testimony also included information regarding his activities following suspension from BC. Doe said he moved back home with plans to transfer to another university after his suspension but claimed that he was not accepted due to the investigation at BC. The University’s lawyers objected, citing scope and hearsay, but Casper struck only the comment on the reasoning.
Doe returned to BC for one semester and graduated in May 2014, delaying his application to law school by one year, he said. Building the case for damages, Doe said that he did not get course credit for the fall 2012 semester, nor did he receive reimbursement for his student activity fee, meal plan, or housing payments.
Despite BC’s objection, Doe also explained that the stigma attached to BC’s finding will affect his employment, although he said he has passed the character and fitness test portion of the bar exam.
The cross-examination opened with a series of questions about Doe’s post-graduation plans—although he had taken the LSAT, he was waiting to see his results before making any decision about applying. BC’s lawyers asked about alternative plans but Doe said he did not remember.
The next line of questioning concerned his employment prospects—BC suggested that Doe would have no trouble finding jobs or obtaining references with the law firms and lawyers with which he had personal connections.
[aesop_quote type=”block” background=”#502118″ text=”#ffffff” width=”100%” align=”left” size=”2″ quote=”Despite the University’s objection, Doe also explained that the stigma attached to BC’s finding will affect his employment.” parallax=”off” direction=”left” revealfx=”off”]
Doe’s lawyers brought in Steven Shedlin, a vocational expert, and Joel Morse, a professor of financial economics at the University of Baltimore, to speak on potential damages.
Shedlin testified first and presented the jury with data on the average income for an associate attorney from their first year on. He also showed another set of estimated earnings for Doe, lowered to account for his delayed entry into the job market. Morse, drawing on Shedlin’s models, estimated that Doe would lose a total of $498,877 in earnings from his entry into the workforce to retirement.
The Jury Decides for Doe
The jury ruled in favor of Doe on Monday, Sept. 23, a week after the trial began. Doe received $102,426.50 in damages: $24,819.50 for tuition and fees for the semester he was suspended and $77,607 for one year of lost income as a result of his delayed graduation from BC.
Colleen Martin, Scott Baker, and Gavin Zhang contributed reporting.
Featured Image by Colleen Martin / Heights Editor