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Doe v. Emerson College

United States District Court, D. Massachusetts

September 26, 2017

JANE DOE, Plaintiff,


          F. Dennis Saylor IV United States District Judge.

         This is an action arising out of a college's response to claims of alleged sexual assault.

         Plaintiff “Jane Doe” was a student at Emerson College in Boston. In October 2012, she alleged that she was raped by a male MIT student at an off-campus party in Cambridge. The incident was investigated by the Cambridge Police Department; Emerson itself did not conduct an investigation, because the alleged perpetrator was not an Emerson student and the incident did not occur on campus. Emerson, however, immediately offered or provided Doe a variety of counseling and other support services.

         In November 2012, the Cambridge Police determined that there was no probable cause to bring charges against the MIT Student when the forensic evidence and witness testimony did not appear to support Doe's allegations.

         In December 2012, Doe alleged for the first time that a female Emerson student had also participated in the off-campus sexual assault. Emerson officials again provided support resources, and-because an Emerson student had now been accused-began conducting its own investigation. Emerson eventually determined that there was insufficient evidence to bring disciplinary charges against the accused female student.

         In March 2013, Doe made a new allegation of sexual assault. She reported that the male MIT student and the female Emerson student had together assaulted her in an alleyway off a Boston street in the middle of the afternoon. The two alleged perpetrators, however, produced substantial evidence that they had not been in Boston at the time of the second claimed assault: the male MIT student was in a university infirmary in Cambridge, and the female Emerson student was in Connecticut on a bus to New York. Moreover, there was no forensic, eyewitness, or street-video evidence to support the allegation. The Boston Police Department conducted an investigation and concluded that there was no probable cause to bring criminal charges. Emerson officials similarly investigated and determined that there was insufficient evidence to bring disciplinary charges against the female Emerson student.

         Doe has now filed this action against Emerson, asserting claims under Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681. In substance, Doe alleges that the manner in which Emerson handled her allegations of sexual assault constituted deliberate indifference amounting to gender discrimination in violation of Title IX.

         The proper resolution of this case turns on its facts-not on conclusory statements or arguments, not on politics or rhetoric, and not on generalities or stereotypes. The issue is not how other sexual assault cases have been handled in other jurisdictions under other circumstances. Nor is it how college administrators typically respond to allegations of sexual assault, if there is such a typical case. It is how this college responded in this case to these specific allegations, as they unfolded over the course of many months.

         Furthermore, the resolution of this case does not require a determination as to exactly what happened to Doe, if indeed anything happened at all. This is not a lawsuit against the male MIT Student, or the female Emerson student. It is a lawsuit against Emerson. The only question presented is whether the college violated any of its duties or obligations under the law: more precisely, whether it was deliberately indifferent to Doe's allegations.

         The evidence shows that Emerson responded immediately to all three of Doe's reports of sexual assault; offered and provided her counseling and other support and assistance; permitted her to take a leave of absence; assisted her in cooperating with the police; and (as to the allegations against an Emerson student) conducted its own investigations. The investigations were conducted by individuals who had been trained in handling issues of sexual assault under Title IX. None of those facts, in their principal details, are disputed.

         Nonetheless, Doe argues that certain Emerson administrators were not appropriately sensitive during that process, discouraged her from reporting, were skeptical of her claims, or were otherwise insufficiently supportive. The administrators in question vigorously deny Doe's claims. And Doe often conflates what happened at the beginning of the process with what happened later on, when some Emerson administrators indeed came to doubt at least some aspects of her story. But those disputes are not material to the resolution of this case.

         Even assuming Doe's version of events is accurate, the undisputed evidence is more than sufficient to show that Emerson fulfilled its obligations under the law. Emerson administrators were required to respond in a timely and reasonable manner. They did so. They were not required to react exactly as Doe might have preferred, either at the time or with the benefit of hindsight. Nor were they required to accept all of her allegations in every detail, and at every stage of the proceedings-particularly as they began to obtain substantial countervailing evidence that her allegations may not have been true. And, of course, Emerson was obligated to protect the rights of the accused female Emerson student, and to treat her fairly, as well.

         In short, the question is not whether Emerson's response was perfect in all respects, or whether it could have been improved upon; it is whether the college violated its obligations under Title IX. Emerson has moved for summary judgment, contending that the undisputed evidence shows that it did not violate those obligations. For the following reasons, that motion will be granted.

         I. Background

         Unless otherwise noted, the following facts are undisputed.

         A. Factual Background

         Emerson College is a private college located in Boston, Massachusetts. (Compl. ¶ 2). “Jane Doe” is a former Emerson undergraduate student. (Def. Tab 1 at 31-32, 343).[1]

         In the fall of 2012, Doe enrolled at Emerson as a freshman. (Id. at 31-32). Shortly after arriving on campus, she attended Emerson's orientation and received a copy of the student handbook and undergraduate rules, regulations, and policies guide. (Id. at 33-34). Among other things, the handbook states that the school “will not tolerate any form of sexual violence.” (Def. Tab 6 at 94). It also defines unlawful sexual conduct and describes the process for filing a complaint against the perpetrator of a sexual assault. (Id. at 60-61, 69-72, 95).[2] In addition to receiving that information, Doe attended an orientation program shortly after enrolling that addressed sexual harassment and sexual assault and also addressed health risks associated with consuming alcohol. (Def. Tab 1 at 32).

         1. The October 2012 Incident

         During her freshman year, Doe lived in an Emerson residence hall called the Little Building. (Id. at 40-41). Shortly after moving in, she became acquainted with “Student A, ” who was another female student living on her floor at the time. (Id. at 41-42).

         On Saturday, October 13, 2012, Doe attended a “social event” in Student A's room along with a male Emerson student. (Id. at 44-45). Student A prepared a cocktail for Doe. (Id. at 45-46). When the male student tried to drink some of Doe's cocktail, Student A told him that she could make him his own drink. (Id. at 46-47). Student A told Doe that there was a party that night at a fraternity at the Massachusetts Institute of Technology in Cambridge. (Id. at 49).

         Later that night, Doe, Student A, and a group of other students traveled to the MIT party together. (Id. at 47-48). When they arrived, they discovered that the building was crowded and that there was a line to enter. (Id. at 50-51). While standing in line, Doe was approached by a man who was working as a doorman at the party, allowing people to enter and exit the building. (Id. at 52-53). The man told her that she could go into the party, and she entered alone. (Id.).

         Doe contends that shortly after entering the building, she was sexually assaulted. (Def. Tabs 18, 29). Her account of how that alleged sexual assault occurred has changed over time, and will be described in more detail below.

         a. The Initial Allegation of Rape Against MIT Student

         Doe returned to Emerson at approximately 12:30 a.m. on Sunday, October 14, and asked a friend to come over. (Def. Tab 1 at 56-57). She told her friend that she had been sexually assaulted. (Id. at 57). Doe's friend encouraged her to report the assault, but when she declined to do so, the friend reported her allegations to Doe's resident assistant. (Id. at 57-60). That report was made at about 1:20 a.m. (Def. Tab 10 Ex. 2). The resident assistant met with Doe the same night and asked if she wanted to speak with a therapist or report the incident to the Emerson College Police Department (“ECPD”). (Def. Tab 1 at 59-62). Doe declined the offers of assistance and said she “wasn't interested” in reporting the incident to the police. (Id. at 61-62).

         The resident assistant told Doe that she was obligated to report the incident to a resident director. (Id.). Later that night, the resident assistant called the resident director on call, Danielle Mastronardi, and sent an e-mail at 2:30 a.m. to Doe's own resident director, Caitlin Courtney, to inform them of the allegations. (Def. Tab 11 at 84; Def. Tab 10 ¶ 13).

         Mastronardi visited Doe that morning. (Def. Tab 1 at 63).[3] Doe contends that they spoke in the doorway of her suite; Mastronardi contends that the two went to a private area in Doe's bedroom and shut the door. (Id. at 64-65; Def. Tab 11 at 89-90, 92). Doe told Mastronardi that she had been raped at a party at MIT. (Def. Tab 11 at 90). Mastronardi gave her pamphlets and other paper materials concerning sexual assault, and asked if Doe would like to go to the hospital or speak with a counselor or ECPD. (Def. Tab 1 at 66; Def. Tab 11 at 91). Doe declined. (Def. Tab 1 at 66).[4]

         After receiving further encouragement from her friend, Doe reported the incident to ECPD on the night of Sunday, October 14. (Def. Tab 1 at 86-87). She told an ECPD officer that a man at the MIT party had raped her. (Def. Tab 16 at 4). She stated that the man had invited her into a back room. (Id.). He then “threw [her] against the wall and told her she was going to have sex.” (Id.). She said that “she began screaming, but due to the loud music no one could hear her.” (Id.). He then “pushed her to the ground[, ] striking her in the face[, ] and began pulling off her clothing to have sexual intercourse.” (Id.). She told the officer that the man had “put his penis in [her] vagina.” (Id.). She did not say anything about anyone else participating in the assault, or being present in the room. (See id.).

         The ECPD officer told Doe that she could speak with a counselor, confirmed that she felt safe, and told her of her option to seek medical care. (Def. Tab 17). The officer also noted that Doe “had some swelling about the right eye with redness to the inner part of the right eye, ” and that there also “appeared to be some slight discoloration about the left forehead area above the left eye.” (Def. Tab 16 at 4).[5] Doe testified that she was also told that rape is a serious accusation, and that she “better be sure” of what happened. (Def. Tab 1 at 96). According to her, the officer also informed her that she had been violating Emerson's drinking policies because she had been drinking underage. (Id. at 96-97).

         The MIT party did not take place on the Emerson campus. ECPD accordingly referred the matter to the Cambridge Police Department (“CPD”) as the authority with jurisdiction over the incident. (Def. Tab 16 at 4). Cambridge police officers interviewed Doe that evening. (Id.). Doe gave a further statement to the CPD, in which she added a few details, including a description of her attacker. (Def. Tab 18 at 2).[6] The CPD officers took custody of the clothing she had been wearing that night. (Id. at 3).

         On Monday, October 15, Doe went to Tufts Medical Center for a medical examination. Among other things, the examination included the collection of evidence of sexual assault, using vaginal swabs and other standard methods of evidence collection. (Def. Tab 22; Def. Tab 1 at 102-04). A pelvic examination revealed “no obvious trauma.” (Def. Tab 22 at 5).[7] She declined an offer of counseling and other services from the Boston Area Rape Crisis Center. (Id. at 9).

         Later that day, Student A visited Doe in her room and told her the name of the fraternity they had visited. (Def. Tab 1 at 122-23). Student A suggested that they look at online photographs of members of the fraternity to identify the attacker. (Id. at 123). The two started reviewing photographs together, and Doe came across a picture of “MIT Student, ” who was listed as a member of the fraternity. (Id.). When she saw the photo, Doe was “100 percent” certain that MIT Student was the person who had raped her. (Id. at 123). She informed her resident assistant that she had identified MIT Student as her attacker. (Id. at 124). The resident assistant then informed the CPD. (Id.).

         The CPD conducted an investigation into the alleged rape.[8] As part of its investigation, the CPD interviewed MIT Student, whom they described as cooperative. (Def. Tab 19 at 13, 28). He told the CPD investigator that he had been working as a doorman at the fraternity on the night of the party. (Id. at 14). He expressed shock at the accusation and denied assaulting Doe. (Def. Tab 24 at 4-5).[9] He agreed to provide a DNA sample “to prove his innocence” and permitted the CPD to search his room and to collect the underwear he wore that evening for examination and testing. (Id. at 5; Def. Tab 19 at 28). He also agreed to submit to a CPD booking photograph in order to include a new photograph in an array to be shown to Doe. (Def. Tab 24 at 12; Def. Tab 19 at 42-43).

         The CPD also interviewed Student A, who said that she never entered the fraternity party on the night of the incident; she told the police that she left the line to use the bathroom before gaining entrance and then decided to attend a different party. (Def. Tab 24 at 8).

         Doe and Student A had corresponded by text message after Doe left the party. (Def. Tab 59). The text messages indicate that Doe was in a cab, and was asking where Student A was; the messages appear to be about the possibility of attending another party. (Id.). There was no mention of a sexual assault. (Id.; Pl. Resp. to Def. SMF ¶ 151).[10]

         On October 22, the CPD showed Doe a photo array that included the new photo of MIT Student. She identified MIT Student from the array “with 80% certainty.” (Def. Tab 24 at 13; Def. Tab 19 at 42).

         In the course of the investigation, CPD officers interviewed various other MIT and Emerson students. (Def. Tab 24; Def. Tab 19 at 12-13, 19-22, 120-21, 140). There were “no witnesses to any type of struggle or dispute within the frat house, ” which was very crowded at the time. (Def. Tab 19 at 27).

         The CPD also sent various items to the State Police Crime Laboratory for analysis, including evidence from the examination performed at Tufts, clothes collected from Doe and MIT Student, and a portion of the carpet from the place where she was alleged to have been raped. (Def. Tab 24 at 13; Def. Tab 19 at 28). The State Police laboratory performed a variety of tests on the evidence, including searching for traces of seminal fluid, saliva, and blood. (Def. Tabs 25, 26). None of MIT Student's DNA was found on Doe's clothing or in the samples taken in the examination at Tufts. (Id.; Def. Tab 19 at 16-17). The report was also negative for the presence of semen and blood. (Def. Tab 26; Def. Tab 19 at 16-17).[11] The analysis did, however, reveal the presence of female saliva on the vaginal swab, although there was insufficient DNA on the swab to match the sample to a particular individual. (Def. Tab 26; Def. Tab 19 at 17-18). The laboratory report was provided to the CPD on October 25. (Def. Tab 27).

         Doe had stated that her clothing had been forcefully pulled off her in the course of the assault. (Def. Tab 16 at 4; Def. Tab 18 at 2). The CPD, however, determined that her clothing “wasn't ripped or torn or stretched.” (Def. Tab 19 at 27).

         On November 15, Doe met with investigators from the CPD on the Emerson campus. (Def. Tab 1 at 126; Def. Tab 19 at 140-41; Def. Tab 24 at 13). The investigators informed Doe that there was “no evidence or DNA located on either her Sexual Assault Kit [from the Tufts examination] or clothing that matched with [MIT student's] DNA.” (Def. Tab 24 at 13). The investigators also informed Doe that “the laboratory did not locate any seminal fluid enzyme or the presence of sperm cells in any o[f] the evidence collected” and that “none of the clothing was noted as being torn or stretched.” (Id.). The investigators discussed the lack of DNA evidence from either Doe or MIT student, for which Doe “did not have an explanation.” (Def. Tab 19 at 29). They also asked her about the presence of female saliva, as to which she could not “provide any explanation of why or how that got there.” (Id. at 30-31).

         The investigators advised Doe that “[their] job [was] to establish probable cause before someone can be charged, ” and explained to her that “[they] were not quite there.” (Id. at 30). In the words of the lead investigator, “A lot of the things that she had alleged we couldn't confirm. The lab reports had no DNA transfer from either party, and we were at a standstill because there wasn't probable cause to charge [MIT Student].” (Id.).[12]

         Doe testified that later that night she began having suicidal thoughts. (Def. Tab 1 at 128-29).[13] She was transported to Tufts Medical Center, where she was admitted for three days. (Id. at 133). Thereafter, she requested, and was granted, a leave of absence from Emerson. (Id. at 149-50). She then flew home to Florida to be with her parents. (Id.).

         On November 19, the Office of the Dean of Students sent an e-mail to Doe's professors informing them that she would be out of class from November 15 through November 26, 2012, for personal reasons. (Id. at 151; Def. Tab 31). The e-mail instructed her professors: “Under the circumstances, please give [Doe] reasonable consideration to make up any work that is missed. Should you have any questions about what is reasonable from an academic perspective please consult your Department Chair.” (Def. Tab 31).[14]

         b. The New Allegation Against Student A

         Doe returned to class as scheduled in late November to complete the semester. (Id. at 151-52). After she returned to campus, she met with David Haden, the Associate Dean and Director of the Office of Housing and Residence Life. (Def. SMF ¶ 9; Def. Tab 32 at 42-43). The purpose of the meeting was to discuss Doe's hospitalization for suicidal ideation and Emerson's policy on medical leave. (Def. Tab 1 at 155).

         According to Haden, he referred Doe for mandatory counseling through Emerson's counseling program and encouraged her to take advantage of the opportunity to speak with a professional counselor. (Def. Tab 32 at 43-44).[15] Haden contends that the conversation focused exclusively on Doe's hospitalization and leave. (Id. at 43). He contends that Doe “made it very clear” ...

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