United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
Dennis Saylor IV United States District Judge.
an action arising out of a college's response to claims
of alleged sexual assault.
“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.
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.
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
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
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.
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.
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.
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
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
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.
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.
otherwise noted, the following facts are undisputed.
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,
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,
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
The October 2012 Incident
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).
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).
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
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.
The Initial Allegation of Rape Against MIT
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).
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).
visited Doe that morning. (Def. Tab 1 at 63). 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).
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.).
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). 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).
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). The CPD officers took custody of the
clothing she had been wearing that night. (Id. at
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). She declined an offer of counseling and
other services from the Boston Area Rape Crisis Center.
(Id. at 9).
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.).
conducted an investigation into the alleged
rape. 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). 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
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).
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 ¶
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).
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
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). 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).
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).
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).
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
testified that later that night she began having suicidal
thoughts. (Def. Tab 1 at 128-29). 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
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).
The New Allegation Against Student A
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).
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). Haden contends that the
conversation focused exclusively on Doe's hospitalization
and leave. (Id. at 43). He contends that Doe
“made it very clear” ...