By Phoebe Suy | Staff Writer
A new Title IX lawsuit was filed against Baylor on the first day of the new school year. This suit is one of five active Title IX lawsuits against the university.
The Plaintiff, named in the lawsuit as Jane Doe, accused Baylor of having an indifferent response to multiple reports of student-on-student sexual assault and engendering a culture of sex-based harassment.
In April 2017 Doe was sexually assaulted by a Baylor student. After the assault, Doe said she went to the local hospital and a SANE (Sexual Assault Nurse Examiner) exam was completed. The Waco Police Department, Baylor Police Department and Baylor’s Title IX office were notified.
According to Doe, her interactions and interview with the Title IX office contradicted assurances that meaningful change had been made following the implementation of Pepper Hamilton’s 105 Recommendations.
The university hired Pepper Hamilton law firm in fall 2015 to conduct an external review of Baylor’s institutional response to and compliance with Title IX. In response to sexual violence on campus, Baylor began implementing Pepper Hamilton’s 105 Recommendations in June 2016 under the leadership of Interim President David E. Garland.
Doe’s assault occurred nearly one year after the university began implementing the recommendations.
The lawsuit alleges Baylor attempted to shift blame away from the perpetrator. According to the complaint, university personnel asked Doe what type of clothing she was wearing at the time of the assault and interrogated her on alcohol and food consumption.
Despite Doe’s efforts to establish that the assault was not consensual, the lawsuit states Baylor attempted to have Doe say the perpetrator, known as Assailant 12, may have believed he had consent.
Doe and Assailant 12 met the night of the assault and Assailant 12 told Baylor that aside from kissing, “there was just no sexual activity done at all,” the filing states.
Waco Police Department, Baylor Police Department, Baylor investigators and Baylor determined that Doe had no discernible motive to falsely report the assault.
In the filing, Doe reported she consumed two beers and one mixed drink throughout the course of the night but not enough that she experienced severe adverse effects or incapacitation. However, in the lawsuit Doe said she “experienced unexpected and unexplained dizziness and blurry vision and ultimately went in and out of consciousness, during which time the assault occurred.”
Baylor ultimately found Assailant 12 was lying and that sexual activity did occur. The lawsuit states Assailant 12 admitted to texting a witness involved and asking if she would be interested in having a threesome with him.
Although Baylor acknowledged Doe was in and out of consciousness during the assault, the lawsuit states Baylor ultimately found that “‘a sober reasonable person’ would not have believed Jane Doe was incapable of consenting due to incapacitation.” Baylor ultimately found Assailant 12 not responsible for the assault.
When Doe attempted to appeal the Title IX office’s finding, she said the office refused to answer questions until immediately before the appeal’s deadline and then refused to extend the deadline.
The filing alleges Baylor, its staff, and highest officers have permitted a campus condition rife with sexual assault and lacking the basic standards of federally and state-mandated support systems for sexual assault victims. According to Jim Dunnam, one of the attorneys representing Doe, the lack of support systems remained even after Baylor’s reform efforts, specifically the Pepper Hamilton recommendations.
“When we deposed Mr. Garland, he said he didn’t know the basis for the [Pepper Hamilton] recommendations – what they were, what problems specifically they were designed to address. And when pressed about what each implementation meant, he did not know,” Dunnam said.
On May 12, 2017 Baylor announced that the 105 Recommendations had been structurally completed with some ongoing elements to sustain the effort.
“So, having the gentleman who is in charge of implementing these recommendations say he really didn’t know the reason for them and, at the end of the day, he couldn’t actually say what they had done to implement them, that just leaves you with no confidence that anything’s been done,” Dunnam said.
This lawsuit specifically cites that, despite attempting to address the issue of sexual violence on campus, Baylor nevertheless failed a student by not upholding their end of the educational contract.
According to the filing, terms of the educational contract include agreements and duties to provide for student safety and to adequately and in compliance with law report instances of sexual assault and/or harassment.
“Jane Doe’s experience, which post-dates Baylor’s media tour patting itself on the back for ‘complete’ and ‘full’ implementation of Pepper Hamilton’s 105 recommendations, further reveals that the sexually discriminatory education environment and multiple failures, all of which the Baylor Board of Regents acknowledged in their adopted Findings of Fact, persists,” the complaint states.
A statement released by Baylor after the lawsuit was filed stated, “Baylor University takes any allegation of sexual violence within our campus community seriously. We are in the process of reviewing the claims outlined in the lawsuit and will decline to comment further.”
UNDERLYING PEPPER HAMILTON INVESTIGATION RECORDS RELEASED
Specific details regarding the release of information from the Pepper Hamilton investigation were outlined in a joint motion filed Friday night by attorneys representing Baylor and the 10 anonymous women suing the university in a Title IX lawsuit.
On Aug. 11 U.S. District Judge Robert Pitman ruled that Baylor waived attorney-client privilege when it released findings and conclusions from the nine-month Pepper Hamilton investigation. He therefore ordered Baylor to produce “all materials, communications, and information provided to Pepper Hamilton as part of the investigation.”
Both parties participated in no fewer than 3 conference calls, multiple communications and a multi-hour in-person meeting. The joint motion details the areas of agreement and seeks the input of the court for the remaining areas of dispute as outlined in the document.
Pepper Hamilton law firm reviewed 450,000 individual documents (not pages), according to the motion. Pepper Hamilton was also provided 90,000 text messages and an unknown number of tangible materials, the motion states. In the document, Baylor said it would take approximately 60 days to review the information.
Records dating from January 1, 2003 to June 15, 2016 will be preserved and produced as part of the court order. However, if necessary, parties can contend that relevant information exists outside the date limitations.
Jim Dunnam, who represents the 10 women along with Attorney Chad Dunn, said that the process to acquire the electronically stored information is complex.
“Baylor has the information. For example, your email account at Baylor. You’re also a custodian of that account, so that’s why we’re using the term custodians [in the motion],” Dunnam said.
The custodians either agreed upon by both parties or determined by the judge will have their accounts searched for specific keywords that also require consensus. The resulting information will be given to the plaintiffs’ attorneys.
“We are looking to find out the background information that supports these findings that regents made,” Dunnam said. “For example, the regents said there was a fundamental failure to implement Title IX policy at Baylor. So we are wanting to look at the documentation and the emails and the text messages and the other documents and information that supports that finding.”
Some agreed keywords include each of the Plaintiff’s names, each of the alleged assailant’s names, “consent,” “her dress,” “her fault” and “victim blaming.”
Terms in disagreement are “alcohol,” “bury,” “drunk,” “intoxicated,” “racial,” “she dress,” “she expect,” “she wearing,” “wanted it” and others.
“I think that every time that we have more information that comes out, then we are going to get closer to knowing the truth about what exactly happened – who, what, when and where and why. That’s a positive development,” Dunnam said.