Washington and Lee denies it acted with anti-male bias in 2017 sexual misconduct case

The former male student is suing the university after he was suspended for non-consensual sexual penetration of a female student, denied readmission

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Washington and Lee denies it acted with anti-male bias in 2017 sexual misconduct case

Photo courtesy of Hannah Denham

Photo courtesy of Hannah Denham

Photo courtesy of Hannah Denham

Photo courtesy of Hannah Denham

Hannah Denham and Maya Lora

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Washington and Lee University denies it is discriminating against a former male student, who was suspended in 2017 for non-consensual sexual penetration of a female student, according to filings in a federal lawsuit.  

 The university moved to dismiss the lawsuit on July 15. The male student filed suit in April in the U.S. District Court in Lynchburg, accusing the university of anti-male discrimination, retaliation, negligence and breach of implied contract.

“I filed this lawsuit to ask the Court to order my disciplinary record at W&L expunged and to order my reinstatement,” the male student said in an affidavit filed in the case.

The male student claims that he and the female student had a consensual sexual encounter and that she made a false accusation against him. 

But a three-member Harassment and Sexual Misconduct Board held a hearing and decided unanimously on April 25, 2017, to suspend him for the subsequent fall term. The board found him responsible of non-consensual sexual penetration. The board allowed him to finish spring term as long as he avoided contact with his accuser. 

The board’s decision said his “earliest opportunity to apply for readmission/reinstatement” would be winter term 2018, according to the hearing decision document obtained by the Ring-tum Phi. The decision also set a condition for readmission: he “must successfully complete counseling for both sexual abuse and substance abuse,” according to the board’s decision.

The male student is asking U.S. District Judge Norman Moon to allow him to proceed with the case by using pseudonyms: John Doe for him and Jane Roe for the female student who accused him. Washington and Lee is supporting the request, which is pending before the judge. 

Lawyers for the male student and Washington and Lee warned the Phi against publishing the male student’s name. On July 12, the Phi contacted David G. Harrison, the lawyer who filed the lawsuit. At that time the Phi was unsure of whether it had enough information to publish the male student’s name. Since then, the Phi gathered the information it needed to do so.

The Phi contacted Harrison again on July 18, leaving a voicemail seeking comment. He responded via text: “I am responding to your telephone message this morning advising me that contrary to your previous assurance, the W&L student newspaper intends to identify by name the respondent in a sexual misconduct claim brought against him and which is the subject of pending litigation in US District Court. You are advised that doing so subjects each student who is involved in any story to potential legal liability for intentional infliction of emotional distress and also potentially for defamation. Each student involved in the story is strongly encouraged to consult with your personal legal counsel and with your parents to determine the financial resources you will have available to defend any litigation brought against you. The male student’s parents have the financial resources and the determination to sue each of you individually. I write so all of you will understand the personal risk you assume by publishing his name. David G. Harrison, The Harrison Firm, PC, Roanoke.”

Within minutes, the Phi reporters were contacted via email by the university’s legal counsel, Jennifer Kirkland, who said: “We have been advised by outside counsel for John Doe in the pending Title IX litigation that you intend to use at least one name of a former W&L student in a piece you plan to run today in the Phi about the litigation.  You should be advised that there is a court order in effect that the plaintiff in the lawsuit, as well as all other students who were involved in any capacity in the underlying campus sexual misconduct proceedings related to the pending litigation, are to be referred to by pseudonyms.  Outside counsel for John Doe has made it clear that if John Doe’s identity is released, they intend to pursue legal action immediately. 

 “Please be advised that if you publish the name of any current or former students involved in this matter in contravention to the court order, thereby potentially placing yourselves and/or the university at legal risk, the University will not indemnify or defend you from litigation brought as a result of the publication of such names. You should govern yourselves accordingly.”

The case docket contains no such order signed by the judge. The proposed orders submitted by Harrison are unsigned, according to the docket. They also do not ask the judge to bar the press from using the students’ names.

Kirkland, in a follow-up email, said the Phi was correct that the judge has not issued a “gag order” on the press.  But she added, the University is strongly advising against your use of any student names in any future articles. If you do so, you do so at your own personal risk.”

Attorney R. Craig Wood, who represents Washington and Lee University, confirmed that the university agreed to use pseudonyms for both students in the filings. He declined to comment further on the lawsuit.

The Ring-tum Phi obtained the following records generated during the university’s sexual misconduct investigation in 2017: the HSMB hearing decision form; the HSMB appeal panel decision form for the female student’s appeal; a letter from university psychologist Janet Boller to the HSMB; and the typewritten notes of the university’s investigators, Title IX Coordinator Lauren Kozak and Assistant Dean of Students Jason Rodocker, from two interviews they conducted with the female student. The records repeatedly identified the male student as Anthony Ruvo of Essex County, New Jersey. 

The male student applied for reinstatement in November 2017 and July 2018 and was denied both times, the lawsuit said. Sidney Evans, vice president for Student Affairs and dean of students, declined to answer when asked whether Ruvo has a pending application for reinstatement. 

Ruvo did not respond to requests for comment. 

The lawsuit said the university’s disciplinary records noted that the male student was “suspended for a violation of W&L’s set of standards.” The university said in its response to the lawsuit that the note was removed after the fall suspension ended and the student became eligible for reinstatement. 

The female student who accused Ruvo told the Phi that she does not believe he should be readmitted to the university, even though she has graduated. She said she would find it “sketchy” if the university admitted him now that she is no longer there to raise concerns or speak out against it. 

“I think he should have been expelled when it happened,” she told the Phi. “I don’t think he actually has learned from it.” 

The Phi is not naming the female student because it does not disclose the identities of people who allege they are victims of sexual assault.

In its response to the lawsuit, the university insisted the process was fair to the male student and unbiased because:  

  • He participated in the investigation;
  • He reviewed the investigators’ report;
  • He testified at the hearing;
  • He had the opportunity to appeal, which he did;
  • He was not guaranteed reinstatement after the one-term suspension but could apply for reinstatement if he met the university’s criteria.

“W&L avers that its reinstatement criteria are multifaceted and holistic and that Plaintiff’s applications for reinstatement did not satisfy these criteria,” the university said in its filings.

Both students were members of the class of 2019. At issue is what happened between them in the early morning hours of March 11, 2017. 

The lawsuit gave an account of what happened between the two students that is at odds with the female student’s version and, in some parts, with the university’s. 

The lawsuit provided the following version: he said she sent him flirty Snapchats and initiated a text conversation with him on the night of March 10. After he met up with her, they walked to the Pi Kappa Alpha (Pike) fraternity house and went inside to his room. They watched television on his laptop until the female student said she was no longer interested in watching. The two then got under his duvet covers, and the female student started kissing him. He reciprocated, and the two made out before the female student performed oral sex on him. He said it felt “weird.” The female student asked several times if it would jeopardize their friendship for them to have sex, before they had what he said was consensual sex that she was fully engaged in. 

Kozak and Rodocker’s investigative notes provide the following version of the encounter between the two students: The female student told the investigators that her Snapchats to Ruvo weren’t suggestive. In its filings, the university said the male student initiated the text, not the female. She said she told Ruvo to put the laptop away because she was tired. She also said she expected that they would then go to sleep. Instead, he started kissing her, and she kissed him back.

She recalled seeing Ruvo’s penis but did not vividly remember performing oral sex on him, according to the university investigators’ notes. She told the university investigators that Ruvo asked multiple times if they could have sex, and she said no each time. She told Kozak and Rodocker that she didn’t realize they had had sex until she saw a used condom on the floor the next morning. She told them that she would’ve been unconscious when penetration occurred. 

“The hard thing for her right now is she doesn’t remember having sex,” Kozak and Rodocker wrote in their notes. “She remembers going to sleep, but she does not remember penetration. She could have left the room in the morning and never known it had happened if she hadn’t seen the condom.” 

The female student told the university’s investigators that she remembers asking for water before she fell asleep. The lawsuit and the university’s investigative records said the male student gave her a can of coconut La Croix. 

The university said in its July 15 filing that investigators did not find evidence that the female student had been drugged. 

The investigators’ notes say the female student told them that Ruvo got the can from the fridge and opened it for her while the room was dark. She said it happened around 1:30 in the morning, hours after she’d stopped drinking alcohol, according to the investigators’ notes. 

The lawsuit questioned why the female student didn’t wake up during sex, if she claims to have been “asleep or nearly asleep.” 

“Oh, you don’t remember?” she recalled Ruvo saying in response to her asking if they had sex, according to Kozak and Rodocker’s notes. She told them she was shocked by his response and left his room and the fraternity house quickly after.

The lawsuit says the male student’s life has been ruined. “As a result of W&L’s wrongful conduct in the disciplinary proceeding and the unconscionably prolonged reinstatement period … [he] has lost his reputation, his ability to complete his undergraduate degree, his post-graduate opportunities, and his employment and career prospects,” the lawsuit said.

On July 16, Moon assigned a magistrate judge to oversee preparation for a possible jury trial, but no date has been set. 

The lawsuit singled out Kozak and accused her of bias. She declined to comment, citing the pending litigation. This is not the first time Kozak or the university has been accused of anti-male gender bias in Title IX cases. 

Title IX is a federal law that applies to educational institutions that receive federal funding. It prohibits gender and sex discrimination, including sexual harassment and sexual assault of students and employees. 

In November 2014, a male student was expelled after being found responsible for non-consensual sexual intercourse, according to the student conduct decision. His accuser, a female student who graduated in 2017, served as an advisor of the female student during the 2019 HSMB hearing, according to the lawsuit and university response. The university said in its response that both complainants and respondents in Title IX cases are free to choose their advisors for hearings.

Cliff Jarrett, the assistant dean of career strategy, selected the HSMB hearing panel’s members: Lindsey Nair, the director of content development in the university’s Office of Communications and Public Affairs; Steve McAllister, the treasurer and vice president for finance and administration; and Mary Main, the executive director of human resources, according to the lawsuit and university response. 

The lawsuit claims the male student was blindsided with a copy of a letter written by Janet Boller, a university clinical psychologist, on the eve of the hearing. But the university said it was given to him a week ahead of time by the chair of the HSMB.

In the April 13, 2017, letter, Boller said the female student showed signs of Acute Stress Disorder, a precursor for Post-traumatic Stress Disorder (PTSD), which includes the following symptoms: “emotional numbing, fear/anxiety (including racing heart), recurring nightmares, emotional overwhelm, fear of being alone or with unknown people, hypervigilance, intense apathy and self-doubt.” 

“In my professional, clinical opinion, [the female student] experienced a traumatic event, as she described when interviewed,” Boller wrote.

Later on March 11, the female student went to the health center and told a nurse that she believed she had been assaulted, according to the investigators’ notes. The female student told Kozak and Rodocker that the nurse did not perform a physical exam. 

The nurse referred the female student to Project Horizon, a Lexington center that offers shelter and counseling to victims of domestic and sexual violence. The student took the nurse’s advice and went to Project Horizon the following Wednesday, according to the investigators’ notes. 

Dr. Jane Horton, director of student health and counseling services, said nurses at the health center are not authorized to perform physical examinations when patients say they’ve been sexually assaulted. They also cannot collect evidence for sexual assault claims, Horton said. She said students must go to Augusta Health in Fishersville or Roanoke Memorial Hospital for such examinations. 

Horton declined to comment on a specific case. But she said protocol requires the nurses to offer to call Project Horizon for students who want evidence collected. She said Project Horizon will provide transportation to area hospitals. The female student told the Phi that the nurse did not offer to call Project Horizon for her. 

After hearing testimony from the male and female students, the HSMB reached a decision: “The panel believes the Complainant [the female student] was not capable of providing consent because she was either asleep or nearly asleep, and that a sober, reasonable person should have known that proceeding with sexual intercourse under those circumstances was in violation of the university policy on consent,” according to the document obtained by the Phi. 

The panel imposed the following sanction on Ruvo, according to the HSMB hearing panel decision: 

  • suspension for the fall 2017 term, with the opportunity to apply for reinstatement in winter term 2018 if he completed counseling for sexual and substance abuse
  • probation through the 2017-18 academic year 
  • a no-contact order in regards to the female student, including avoiding any social events she might attend.

Ruvo appealed the panel’s decision and the sanction. The female student also appealed the sanction. The appeal panel upheld the HSMB decision and sanction in May 2017, according to the lawsuit and university response. 

 The female student told the Ring-tum Phi that she appealed the sanction because she didn’t feel safe after he was allowed to stay on campus for the remainder of spring term. She also said she wanted him expelled or at least barred from reinstatement until after she had graduated. 

The board denied her appeal, saying that a one-term suspension was in the range of available sanctions for the offense, according to the appeal decision document. 

According to the university’s Title IX policy, Ruvo could only have been expelled if he were found responsible “beyond a reasonable doubt.” Instead, Ruvo was found responsible based on “preponderance of the evidence,” meaning it was more likely than not he was responsible, according to university policy. 

The lawsuit accuses the university of changing the conditions for his reinstatement. He and the university are at odds over whether he could strengthen his application by completing coursework at an accredited college or university and volunteer work specifically dealing with substance and/or sexual abuse. He says he can’t take a course because he can’t get into another school. The university says his volunteer work wasn’t good enough because it did not deal with substance abuse or sexual assault. 

“[The male student] would have to disclose to any prospective supervisor that he had been suspended from W&L due to a finding of sexual assault with a sanction that also included mandatory counseling sessions for substance and sexual abuse,” the lawsuit said. “That truthful disclosure would almost certainly foreclose his acceptance for this category of volunteer work.”

In its filings, the university denied that it imposed additional mandatory hurdles for the male student to overcome to earn reinstatement. 

The lawsuit said the male student has since applied for admission to four universities. He was rejected by all of them, according to the lawsuit. 

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