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King v. Depauw University

United States District Court, S.D. Indiana, Terre Haute Division

August 22, 2014



WILLIAM T. LAWRENCE, District Judge.

This cause is before the Court on the Plaintiff's motion for preliminary injunction (Dkt. No. 33). The motion is fully briefed and a hearing has been held. The Court, having considered the evidence presented at the hearing as well as all of the written submissions of the parties, now GRANTS the Plaintiff's motion for the reasons set forth below.


This case arises out of Defendant DePauw University's handling of a complaint of sexual misconduct against Plaintiff Benjamin King. While King and DePauw disagree about what actually happened on the night in question and whether King violated DePauw's code of conduct, the facts relevant to the instant motion-that is, the facts surrounding DePauw's handling of the complaint-are largely undisputed.

A. The Complaint

On December 8, 2013, a female DePauw student, J.B., reported to DePauw authorities that she had been the victim of sexual misconduct by another DePauw student, King. J.B. stated that she had attended a party at the Delta Tau Delta fraternity house on Friday, December 6, 2013, that she had consumed alcohol during the evening, and that she had awakened the following morning unclothed in King's bed without any memory of what had occurred between the two of them. When she later texted King to ask him what had happened, he told them that they had "tried having sex but it never actually happened." J.B. further reported that she felt pain in her vaginal area and had gone to the emergency room on Saturday evening to have a sexual assault examination performed. She reported that the nurse who performed the exam told her she observed vaginal tearing. J.B. did not, at that time, wish to make a formal complaint to DePauw's Office of Public Safety ("Public Safety") or pursue a police investigation of the incident, but she did want King to be interviewed by the university's Title IX coordinator, Dorian Shager.

Ten days later, Shager met with King, explaining that as the Title IX coordinator he was "conducting an inquiry to see if sexual misconduct may have occurred." Shager summarized King's statement to him as follows:

Ben indicated that he and another student had tried to have sex that night, but they did not end up having sex. Ben stated that they knew each other a little bit from having class together. That they went up to his room and had a drink. That one of her friends called but the female student decided to stay in Ben's room. Ben indicated that they got naked and were making out. He stated they did not have verbal communication at this point. Then he fingered her. I inquired if Ben had asked for verbal consent before doing this, and he indicated no. They tried to have sex but it was not working. He said he was too drunk to keep it up. He stated that she asked him to try again multiple times. He also stated that it was too dark in the room to see what was going on and she did not want the lights on.

Dkt. No. 37-4.

DePauw's holiday recess was from December 20, 2013, through January 6, 2014. The next two weeks were DePauw's "winter term, " during which approximately 70% of students are off campus. At the end of winter term, on January 22, 2014, J.B. informed DePauw that she wanted to pursue a charge of sexual misconduct against King.

B. The Investigation

Pursuant to DePauw's policy, a formal report was filed with Public Safety and an investigation was begun that day by Captain Charlene Shrewsbury of that office, who is a sworn police officer. One of her first steps was to call King in for an interview. Because DePauw has an agreement with the county prosecutor's office that it will forward the results of any sexual misconduct investigations it conducts to the prosecutor for review, Captain Shrewsbury began the interview by advising King of his Miranda rights and informing him that the interview would be videotaped. Not surprisingly, King declined to be interviewed at that point.

The remainder of Captain Shrewsbury's investigation consisted of an interview of J.B. and several DePauw students who had been at the same fraternity party; she later explained that she interviewed the students that J.B. remembered having the most contact with at the party. J.B. gave a lengthy statement to Captain Shrewsbury on January 22, 2014. She described first drinking at a party prior to going to the fraternity house. She consumed at least two "Peppermint Patties, " which involved someone pouring peppermint flavored vodka into her mouth followed by chocolate syrup. She also consumed one, or perhaps two, mixed drinks that likely contained about two shots of liquor each. She reported that she remembered drinking at least three cups full of the cider punch that was being served at the fraternity party, which she learned later was made with Everclear, a particularly potent form of alcohol. Her reported memory of what occurred in the basement of the fraternity house was spotty, although she remembered that about midnight she was talked out of leaving the party by some freshman girls. She stated that she did not remember the phone conversation or going upstairs with King; indeed, the next thing she reported remembering was waking up in King's bed the next morning. She explained that she was very embarrassed to find herself in that situation, particularly because she was on her menstrual cycle and no longer had a tampon inserted, although she did not remember what had happened to it. She reported that she recognized King but could not remember his name. She described him as throwing her clothes at her and acting "put off" when she asked him to take her to the room where she had left her coat. She stated that King acted "very rude and weird" and did not show her how to get out of the fraternity house. Finally, she emphasized that she did not typically attend parties, that she was a virgin, and that spending the night in a fraternity house was not something she would typically do.

The relevant information from Captain Shrewsbury's summaries of the remaining witness's statements and the written statements provided by some of the witnesses after their interviews is as follows:[1]

• Student M.B., who was interviewed on January 24, 2014, was not aware of how much alcohol J.B. had consumed, but believed that she was "very drunk" because she was exhibiting "uncharacteristic behavior" when she saw her in the basement of the fraternity house. When asked to describe that behavior, M.B. stated that J.B. was talking about how wonderful her sorority was when she typically "is very reserved on the topic of her sorority as she wants everyone to make their own decision."[2]
• F.J., who was interviewed on January 27, 2014, was one of J.B.'s roommates.
F.J. also was not aware of how much J.B. had to drink on the night in question. She stated that J.B. appeared "kind of intoxicated" and "past the point of tipsy" at the party. She described J.B. as someone who did not "go out" very often and typically drank in moderation. She explained that when she and her friend, E.C., were ready to leave the party, J.B. was no longer in the basement of the fraternity house. E.C. called J.B., but J.B. was not ready to leave and told E.C. that she was "fine and not to worry as she was with friends." E.C. told F.J. that J.B. "did not sound too drunk."
• E.C., another of J.B.'s roommates, was also interviewed on January 27, 2014, and gave a statement that was consistent with that of F.J. with regard to her call with J.B. E.C. reported that J.B. "seemed very coherent and [was] speaking clearly. She did not see her falling or stumbling and [she] was not showing any typical signs of intoxication." She reported seeing J.B. "tak[e] two pulls of a handle" while they were dancing in the basement of the fraternity house. In her written statement, she recalled that J.B. drank at least two cups of the cider being served at the party and she described J.B. as seeming "ever so slightly drunk... but very coherent" toward the end of the night.
• M.T., who was interviewed on January 29, 2014, reported that she saw J.B. at another party before they went to the fraternity party. She described J.B. as "already intoxicated as she was dancing very animatedly and was very lovey dovey' with everyone, " although she did not see her consume alcohol at that location. She did see her take "at least two fairly large pulls from handles" while in the basement of the fraternity house. She described J.B. as acting out of character at the party-taking someone's glasses off and putting them on and putting her arms around people-something the normally reserved J.B. would not typically do. She also reported that J.B. was slurring her words and that she fell in the basement of the fraternity house, although she could not say whether she fell due to being intoxicated or because of the slippery floor. She thought it was odd that J.B. did not seem embarrassed by the fact that she fell. She described her as dancing "all over the place" as if she did not have "complete control over her limbs." In her written statement, she said she could tell she was "very intoxicated... by her lack of control over her body-very wild and lanky movements and just constantly running around people." M.T. saw King briefly at the party, but she did not see him interact with J.B.
• J.D. reported to Captain Shrewsbury on February 4, 2014, that she was extremely intoxicated on the night in question and had no memory of what had occurred.

By letter dated February 12, 2014, DePauw notified King that it was charging him with nonconsensual sexual contact and sexual harassment. Captain Shrewsbury conducted two more interviews after that date:

• D.H., a member of King's fraternity, reported to Captain Shrewsbury on February 17, 2014, that he saw J.B. when she arrived at the fraternity house and that she was "a little buzzed" at that point. About an hour later he saw her in the basement of the fraternity house; at that point she was "more drunk" than before but "able to stand without swaying, make eye contact, and carry on a conversation." He saw her later in the evening, at which point she "seemed a little more intoxicated... but was still able to have a decent conversation." He did not see her again until the next morning when she and King came to his room to retrieve J.B.'s coat. He described J.B. as "not acting herself, " but he does not remember her crying. He described King as "hung over and possibly still intoxicated."
• J.W., the fraternity member who had invited J.B. (and three other girls) to attend the party, reported on February 18, 2014, that he did not know how much alcohol J.B. had consumed. He observed her "dancing and having fun" at the party and described her as "obviously drunk, " but he could not "judge her level of intoxication as he does not spend enough time with her when she's drinking alcohol."

Another witness, W.W., provided a short written statement at the request of King in which he recalled seeing King "interacting and talking to a young women [sic] who looked to be in good spirits" near one of the entrances to the fraternity house. He believed that King was "walking her to the door after she had spent the night" at the house.

C. The Hearing and the Board's Decision

Pursuant to DePauw's policy, complaints of sexual misconduct are heard by a panel of three members of a seven-member Sexual Misconduct Hearing Board ("the Board"). Both complainants and accused students are entitled to have an advisor to help them through the hearing process. J.B.'s advisor was Sarah Ryan, Director of the Women's Center and DePauw's Sexual Assault Survivor's Advocate. Ryan is married to Title IX coordinator Dorian Shager. DePauw suggested that King use J.C. Lopez, a member of the Board who was not on the panel for King's case, or PJ Mitchell from the Fraternity Life Department, as his advisor, but also advised him that he should choose a faculty member he knew and felt comfortable with. King therefore chose another advisor, a professor with whom he was familiar but who had no experience dealing with sexual misconduct complaints.

The hearing originally was scheduled for February 20, 2014. King requested a one-week delay because he needed additional time to prepare; his request was denied. The hearing was then delayed until February 24, 2014, to accommodate another scheduling issue.

At the hearing, both King and J.B. were permitted to give opening statements and to ask questions of the witnesses if they wished. Captain Shrewsbury testified briefly about her investigation and then several of the students whom she had interviewed testified. Each student was asked a few questions-mostly tracking his or her previous statements-and, with the exception of W.W., who indicated he had not seen J.B. during the party-each also was asked to indicate, "on a scale of 1 to 10, with 1 being not drunk at all and 10 being very drunk, " how intoxicated she was on the night in question and how intoxicated she believed J.B. had been.[3] The hearing testimony consisted of the following:

• M.T. testified that she was "probably a 6" herself and J.B. was "maybe a 7." She was not asked to discuss or elaborate on her descriptions of J.B.'s behavior contained in her previous statements, other than to describe how J.B. reacted when she fell; she stated that "[s]he was just laughing and I helped her back up."
• M.B. testified that she was "maybe like a 5" and J.B. was "very drunk, like closer to the 9 area." When asked what made her think that J.B. was that intoxicated, she said that she "was screaming and jumping up and down" and again reiterated that she had violated the rule against ...

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