Protect us from those who disregard us, who do not care whether they harm us.
Even families must shun members who abuse.
You are the head of this Trojan family. Protect your children as a parent must.
. . . . . .
The University of Southern California
Student Judicial Affairs and Community Standards
Student Union 206
Los Angeles, CA 90089
To Whom It May Concern:
Enclosed herewith is my appeal from the 9 May 2013 “findings” of Student Judicial Affairs and Community Standards panelists Lindsey Goldstein and Raquel Torres-Retana.
The attached will document in detail the adjudicators’ multiple violations of federal and University policy, together with the affronts Ms. Reed was forced to endure throughout this process, which betray the ignorance, incompetence and bias of the adjudicators and consequently render any “findings” of the adjudicators null and void.
Because (1) the adjudicatory panel committed multiple federal civil rights violations during the course of the adjudication; (2) the adjudicatory panel engaged in a documented pattern of bias, ignorance and deliberate indifference during the adjudication; (3) the full body of evidence was not factored into a logical decision and further is not even represented in the “letter of findings” submitted by the adjudicatory body; (4) the adjudicators considered as dispositive a number of “facts” that the University’s own standards and procedures disallow as part of an adjudication on sexual assault; and (5) the findings made by the panel are unsupported by the evidence, Reed hereby formally demands that this investigation be remanded to its beginning stages with a panel of adjudicators who are free from bias, ignorance and misogyny.
. . . . . .
The adjudication of Ms. Reed’s sexual misconduct report against accused Andrew Paul Bean was prejudicially mishandled over a period of six months. The actions of adjudicators Raquel Torres-Retana and Lindsey Goldstein were negligent to a degree of deliberate indifference to Reed’s rights and Reed’s suffering, and further, were in direct violation of national standards set forth by both Title IX and the Obama Administration’s 2011 and 2013 “Dear Colleague” letters, as well as the University of Southern California’s own policy, which exists as a contractually-founded special duty of care between the institution and its students (Peterson v. San Francisco Community College District, 39 Cal.3d 799 (1984); Duarte v. State, 84 Cal.App.3d 729 (1978); Miller v. State New York, 62 N.Y.2d 506 (1984)). Further, the decision was predicated upon grossly misstated reports of the evidence submitted to the adjudicators, which misstatements serve as further evidence of bias, indifference, hostility, and disparate treatment of the parties. As a result, the University is obliged to set aside the “findings” of Goldstein and Torres-Retana in their entirety and to initiate a hearing de novo of Reed’s grievance against Andrew (“Andy”) Bean.
VIOLATIONS OF FEDERAL POLICIES AND STANDARDS
Torres-Retana and Goldstein committed numerous violations of laws set forth by Title IX of the Education Amendments of 1972, Title VII of the Civil Rights Act of 1964, Title II of the Americans with Disabilities Act, the 2010, 2011 and 2013 “Dear Colleague” letters, and the Campus Sexual Assault Victims’ Bill of Rights, including, but not limited to the following:
A. The Victim Reed Was Not Afforded the Same Treatment as the Accused
Torres-Retana and Goldstein failed to accord the same treatment to both the accused and complainant in violation of the Title IX of the Education Amendments of 1972 “prompt and equitable” provision that schools must treat the accused and complainant equally and provide equal rights to both. See, generally, “Dear Colleague” letter of April 4, 2011, pp. 11-12, specifying “the parties must have an equal opportunity to present relevant witnesses and other evidence;” “[t]he complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing;” “a school should not allow the alleged perpetrator to review the complainant’s statement without also allowing the complainant to review the alleged perpetrator’s statement;” “[i]f a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties.”
1. In this adjudication, from the beginning to the end, Reed was not afforded the same rights as the accused. At the inception of the case, SJACS made only a cursory effort to contact Ms. Reed by sending two emails to her university-assigned email address even though Reed had alerted DPS that she would be leaving town and had provided DPS (and thus SJACS) with alternate means of contact; SJACS knew or should have known that Reed had withdrawn from school during that semester for medical reasons and therefore had no reason to be regularly checking her University email address. When Reed learned by accidental means that an SJACS investigation had likely been opened because of her complaint to DPS, she immediately contacted SJACS, only to be informed that if SJACS had not heard from her that same day, her adjudication would have “move[d] forward without [her] input.” Declaration of Appellant Aisling Tucker Moore Reed (“Reed Decl.”), para. 2.
2. Thereafter, the SJACS adjudicators repeatedly emphasized to Reed that the accused, Bean, would be given full access to everything Reed submitted to that office as evidence in support of her complaint, but failed and refused to provide her the same access to materials and statements supplied by the accused and his witnesses. Reed Decl., para. 3; Declaration of Kelly Moore (“Moore Decl.”), para. 2. Indeed, Reed only learned of several material allegations made by the accused when she read them for the first time in the “findings” contained in the final decision rendered by SJACS — in other words, Reed was never given the opportunity to refute a number of allegations that were considered by the adjudicators to be so significant that these allegations were included in their final summary of the case.
3. During the adjudication, an advocate of Reed’s challenged this one-sided sharing of testimony and evidence in an email to SJACS dated 4 March 2013, and attached hereto as Exhibit A. Moore Decl., para. 3. (Notably, although SJACS replied to the 4 March email with a promise to address Reed’s concerns, the concerns were not addressed in the email and were further not addressed in a meeting (a full two weeks later) specifically scheduled to focus on these concerns; this is further documented by a 28 March email from Reed to University staff member Danielle Lancon, attached hereto as Exhibit B.) Reed Decl., para. 3. Moore Decl., para. 4.
4. Also, although the accused in all SJACS proceedings are afforded the constant right to have an advisor present during all interviews by and conversations with the SJACS adjudicators (“A student who is named in a report of sexual misconduct against an individual is entitled to an adviser … The adviser may accompany the named student to all proceedings of the Office of Student Judicial Affairs and Community Standards.”), Reed was specifically denied her right to have her choice of advocate present during a conversation with the adjudicators on 2 April 2013. Reed Decl., para 4; Declaration of Alexa Schwartz (“Schwartz Decl.”), unnumbered para. 1. The absence of Reed’s chosen advocate caused significant prejudice to Reed because during this interview, adjudicator Torres-Retana became hostile and abusive to Reed while Reed had no one present to witness this behavior or shelter Reed from its effects. Reed Decl., para 5.
This unequal treatment of the parties is by itself sufficient to warrant setting aside the decision of the adjudicators and granting Appellant Reed a hearing de novo.
B. The Investigation Was Conducted by Hostile Adjudicators
Torres-Retana and Goldstein further violated Title IX of the Education Amendments of 1972, in its requirement that a university provide an “adequate, reliable, impartial investigation” which requirement is further delineated in the “Dear Colleague” letter of April 4, 2011.
1. The adjudicators violated the “impartial investigation” requirement first by the abuse of Reed by Torres-Retana during the single interview conducted by the adjudicators when Reed had no advocate in the room to protect her. During the interview conducted on 2 April 2013, Reed was reduced to tears by Torres-Retana’s abusive treatment and disdain, and by Torres-Retana’s hostile invitation to Reed to “leave” before Reed was finished presenting her evidence. This behavior by Torres-Retana further violated federal law, specifically Title II’s requirements that special accommodations be afforded to students suffering known disabilities, as Torres-Retana was specifically aware that Reed was suffering from extreme depression and anxiety to the point of suicidal ideation. Reed Decl., paras. 5 and 6. Reed was visibly upset and weeping when she left the interview and immediately informed her excluded advocate about the harassment she had suffered during the interview. Schwartz Decl., unnumbered para. 2; Reed Decl., para. 5.
2. In addition, the adjudicators violated the “impartial investigation” requirement by failing to inform Reed of her right to seek removal and replacement of either adjudicator. Reed Decl., para. 6.
Because Torres-Retana exhibited clear hostility to Reed and because Reed was not informed of her right to remove Torres-Retana from the panel, Reed is for this reason also entitled to a hearing de novo.
C. The Adjudication Process Was Not “Fair and Unbiased”
The adjudicators also demonstrated bias in a number of ways, violating specific school policy as well as rendering the adjudication in violation of Title IX of the Education Amendments of 1972, requiring an “adequate, reliable, and impartial investigation”, as specified in the “Dear Colleague” letter of April 4, 2011, page 9.
1. Adjudicator Torres-Retana stated that the adjudicators knew that both parties were “good people,” and further, “that all our students are good people; that’s why they’re here.” Reed challenged this assertion as clear evidence of bias in an email sent to her advocate Danielle Lancon — a counselor provided by the Center for Women and Men — on 28 March 2013. She further challenged this assumption as bias in a letter supplied to SJACS on 2 April 2013, pointing out that the assumption that the accused is a “good person” predisposes the adjudicators to find that the accused acted from mistake or confusion instead of a premeditated intent to commit rape. Reed Decl., para. 5; Moore Decl. para. 5; Exh. C, copy of 1 April 2013 letter delivered to SJACS 2 April 2013.
2. The adjudicators consistently referred to the act complained-of as “sexual intercourse” even though Reed insisted that the action was not “intercourse” (implying a voluntary interchange), but “sexual penetration” without consent. The use of the word “intercourse” betrayed a predisposition to regard the act as non-violent in intent and effect, and the use of this word to describe the action is contrary to the University’s own practice in defining rape as a “sexual act, either attempted or completed, when vaginal, anal or oral penetration takes place without the consent of the person penetrated …” Indeed, Goldstein falsely states in her decision “They [accused and victim] agreed they had sexual intercourse.” Reed has never agreed and will never concede that she and her rapist had “sexual intercourse” on the morning of 4 December 2010. Goldstein’s disregard of Reed’s position on this point demonstrates bias.
3. Further evidence of the adjudicators’ bias and unfair treatment can be found in the adjudicators’ treatment of Reed’s witnesses. Reed supplied witness contact info on 1 February 2013, and again in March after the SJACS adjudicators reported the witnesses on Reed’s list were “not cooperating.” When Reed contacted the witnesses herself, each claimed they had not been contacted via email by SJACS (although some later did locate SJACS emails in their spam folders). SJACS never made any attempt to follow-up with these witnesses via the telephone numbers Reed had provided. Further, when SJACS scheduled meetings with witnesses, the meetings were scheduled weeks in advance, with no attempt on the part of the adjudicators to prevent the adjudication process from dragging out unduly long (a violation of federal law). In fact, because SJACS waited so long to schedule meetings with witnesses, a key witness to Reed’s testimony became unavailable due to family-related trauma, prejudicing findings in the accused’s favor.
Reed also discovered in early May 2013 that SJACS had never contacted certain witnesses at all. In addition, several witnesses were contacted in-bulk in early May, during the second-to-last week of the semester while students were readying for finals. (Reed Decl., para 7.) (Exh. D, Moore email to alert Goldstein of witness unavailability.)
Reed was alerted to further adjudicator bias when [REDACTED], one of Reed’s corroborative witnesses, texted Reed out of the blue to discuss how “weird” Murphy’s experience serving as Reed’s witness was. [REDACTED] explained via text that Torres-Retana and Goldstein informed [REDACTED]: “[W]e can’t tell you anything about what’s going on and we can’t ask you questions [s]o just tell us what you think we should know.” Additionally, [REDACTED] stated that the adjudicators “were barely listening or caring and didn’t even really write anything I said down.” (Exh. E, screenshots of [REDACTED] texts.)
Because the adjudicators were predisposed to regard the accused as “a good person” and to regard the rape as “sexual intercourse,” they were not capable of rendering an unbiased decision in this adjudication. Their bias was further demonstrated by their lackadaisical efforts to contact and interview Reed’s witnesses. The adjudicators’ bias and unfairness provides another ground under Federal statutes upon which Reed is entitled to a hearing de novo.
D. The Investigation Was Excessively Prolonged
In addition, the entire adjudication violated Reed’s right under Title IX of the Education Amendments of 1972 to a “prompt and equitable” adjudication because of the length of the adjudication. As explained in the Dear Colleague letter of 2011, pp. 12-13, schools must “designate and provide prompt time frames for the major stages of the complaint process”:
Grievance procedures should specify the time frame within which: (1) the school will conduct a full investigation of the complaint; (2) both parties receive a response regarding the outcome of the complaint; and (3) the parties may file an appeal, if applicable. Both parties should be given periodic status updates. Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint.
In Reed’s case, no time frames were provided, vague updates were provided only when specifically requested by Reed, and the adjudication lasted 186 days, or more than three times the duration recommended by OCR. Reed Decl., para. 7.
The above-enumerated violations of Reed’s federal civil rights were prejudicial to her ability to present her case and to obtain a fair and unbiased hearing of her complaint against Andrew Paul Bean for rape. For this reason, the adjudicator’s decision must be set aside and Reed must be afforded a hearing de novo.
VIOLATIONS OF UNIVERSITY POLICIES AND STANDARDS
Torres-Retana and Goldstein also committed numerous violations of standards imposed by the University’s own policies and procedures, all and each of which entitled Appellant Reed to a hearing de novo.
A. The Victim Was Denied Her Choice of Advocate During a Critical Interview
In addition to the a fundamental right provided by federal law (the violation of which was cited hereinabove in section I, subsection B.1), the University’s own policy promises that a victim is entitled to have her (or his) choice of advocate present with her (or him) at every interview. This policy is apparent in the joint operation of two policy statements of the University:
1. “A student who is named in a report of sexual misconduct against an individual is entitled to an adviser… . The adviser may accompany the named student to all proceedings of the Office of Student Judicial Affairs and Community Standards.”
2. “Students who are survivors of sexual misconduct or assault or attempted assault … are entitled to certain rights that include, but are not limited to, the following: The right to the same level of support at any proceeding of the Office of Student Judicial Affairs and Community Standards as is permitted to both the reporting student and the named student(s); and the right to be notified in a timely manner of the outcome of such proceeding.”
As detailed hereinabove, Reed was specifically denied her right to have her choice of advocate present during a conversation with the adjudicators on 2 April 2013. Reed Decl., para 4, 5 and 6; Schwartz Decl., unnumbered paragraph 1. This caused prejudice to Reed because during this interview, adjudicator Torres-Retana became hostile and abusive to Reed while Reed had no one present to witness this behavior or shelter Reed from its effects. Reed Decl., supra. For this reason also, Reed is entitled to a hearing de novo.
B. The Adjudicators Failed to Treat Reed at all Times with Dignity and Respect
The University’s policy further provides, first and foremost, as follows:
“Students who are survivors of sexual misconduct or assault or attempted assault … are entitled to certain rights that … include, but are not limited to, the following: The right to be treated with respect and dignity by university officials.”
Torres-Retana’s abuse and hostility towards Reed, who was known to be suffering severe depression, suicidal ideation and many other indicators of Rape Trauma Syndrome, violated University’s policy preserving to victims “[t]he right to be treated with respect and dignity by university officials.” For this reason also, Reed is entitled to a hearing de novo with different adjudicators.
C. The Adjudicators Ignored the University’s Definition of “Consent”
In the decision reached in this matter, the adjudicators ignored the University’s definition of “consent” in deeming the complained-of rape “consensual sexual intercourse.” As regards “consent”, the University specifically states as follows:
Consent is defined as positive cooperation. Consent is informed, knowing and voluntary. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. When people consent to sexual activity, they will have indicated, verbally or otherwise, that they are participating willingly, freely and voluntarily.
With respect to the issue of consent, the decision notes that Reed asserted that she told the accused that the sexual penetration “hurt” and further notes — falsely — that Reed then asked for lubrication. Reed Decl., para. 8. The decision also notes that after the accused engaged in sexual penetration of Reed for some time, he asked her to change positions and she cooperated. The decision cites both of these behaviors — one partially accurate (that Reed changed positions when she was directed to) and one entirely inaccurate (that Reed asked for lubrication) — as evidence of consent, but the important detail to note about both of these “indicators of consent” is that they occurred substantially after sexual penetration commenced. They cannot be indicators of consent to penetration that already occurred.
If these behaviors are removed from the consideration of indicators of consent to the initial penetration, and even if the adjudicators entirely disregard Reed’s corroborated testimony that she begged Bean to stop, then the adjudicators are still left with no indicator of consent except silence, which, per University standards, “cannot be interpreted as consent.” Therefore, the conclusion that the sex was consensual violates University policy. For this gross error in the application of the University’s own explicit standards, Reed is also entitled to a hearing de novo.
D. The Adjudicators Improperly Ignored the University’s Policy on Intoxication
The University has a clear policy on sexual violations that occur while a victim is intoxicated. The University’s Policy and Procedures on Sexual Misconduct and Sexual Assault states as follows:
For the purposes of this policy, sexual misconduct is defined as any sexual act perpetrated upon a person … where the survivor has an impaired ability to give or withhold consent due to the influence of alcohol or other drugs.
The University Student Conduct Code (section 11.53c) further provides as follows:
In situations where the complainant is incapacitated or incapable of giving consent, which includes but is not limited to when the complainant is unable to consent due to consumption of alcohol or drugs, the accused is responsible for misconduct if the accused sexually violates the complainant.
In addition, the University’s own “Curriculum for Adjudicators of Sexual Misconduct Cases” states, at length, as follows:
Students should understand that the use of alcohol or other drugs in no way diminishes their personal responsibility for acts of sexual misconduct perpetrated while under the influence of such substances.
- Intoxication of the accused does not diminish his or her responsibility for a sexual misconduct act;
- In situations where the complainant is incapacitated or incapable of giving consent, which includes but is not limited to when the complainant is unable to consent due to consumption of alcohol or drugs, the accused is responsible for misconduct if the accused sexually violates the complainant.
The University therefore explicitly and repeatedly identifies sexual violations that occur while the victim is inebriated as sexual assault.
Per all testimony provided, Reed did in fact consume significant amounts of alcohol on the evening in question. Reed testified to consuming in excess of seven shots over a period of two to three hours, which would have amounted to an approximate Blood Alcohol Level of .200 or higher. (Reed Decl., para. 9.)
Testimony provided by Reed and corroborated by Bean also suggests that Reed was not in full control of her faculties; Reed testified to SJACS that after inappropriate touching (including unwanted digital penetration that constitutes rape) occurred on the dance floor at the party Reed and Bean attended that night, Reed walked Bean home. This betrays a lack of awareness (i.e. incapacitation) in the face of escalating stakes.
Further, per the accused’s own admission (in his testimony provided to adjudicators and in audio-records supplied as evidence by Reed), as well as the testimony of Reed and numerous witnesses, Bean was intoxicated at the time of the incident. Evidence that includes Bean’s own verbal admission supports the fact that Bean was indeed inebriated to the point of loss of awareness (“blacking out”). (Id.) Bean was therefore incapacitated, Bean put himself into a position where his actions were no longer protected by University policy, and those actions automatically fall within sanctionable “sexual misconduct.”
The adjudicators’ failure to implement the University’s policy regarding complained-of sexual assault between intoxicated students is a violation of University policy that entitles Ms. Reed to a hearing de novo.
THE DECISION WAS IMPROPERLY PREDICATED ON
BLATANTLY INACCURATE REPORTING OF TESTIMONY AND EVIDENCE,
PROVIDING FURTHER EVIDENCE OF BIAS AND IMPROPER INVESTIGATION
Although the University’s appeal information letter does not provide for an appeal based upon abuse of discretion exercised in reviewing, assessing and reporting the evidence, the abuses detailed hereinbelow are offered as further evidence of bias, deliberate indifference, hostility, improper investigation, and inequitable treatment of the Appellant Reed, all of which entitle Reed to a hearing de novo.
A. The Adjudicators Misstate the Evidence to Provide the Accused with a Critical “Fact” Necessary to Make his Story Credible
The most egregious abuse committed by the adjudicators in their summary of the evidence is to misstate the content of recordings supplied to them by Reed to provide the accused with a critical “fact” necessary to make his entire fabricated story plausible. The decision states:
Although Ms. Reed can be heard in the recordings that she submitted demanding that Mr. Bean admit that she asked him to stop and that he failed to do so, he denies in the recordings that she asked him to stop.
This assertion is simply inaccurate and false. Nowhere in more than twenty pages of transcriptions of the audio recordings does Bean deny that Reed asked him to stop. What Bean instead lamely asserts is the same fabrication he asserted to Reed all along — that he did not remember whether Reed told him to stop because he did not remember the events of that evening. For nearly two years, Bean took the position that he was too drunk to be aware of or remember Reed’s pleas that he stop raping her. Reed Decl., para. 11. He continued to affirm that position of “no memory” in the taped confessions Reed supplied to SJACS. Curiously, however, when Bean provided his testimony to SJACS, he had a miraculous restoration of his memory, to the extent that he was able to remember vast numbers of details which he insisted confirmed his fabricated story of Reed’s voluntary participation in the sexual assault.
To demonstrate the complete mischaracterization of Bean’s statements in the taped confessions, Reed submits the following portions of the transcripts in which Bean reiterates his claim of “no memory” of the events:
RECORDING NO. 4, from a Joint counseling session before two University staff members (counselors) in the Student Counseling Center:
BEAN: Oh, oh. Um… . But, uh — yeah, it started off like that but it got more physical. And, um … like — I, uh, think three weeks into it, we had sex. And, um … it was December third. We were both … very drunk… . And, um, I, honestly, I don’t remember the night.
COUNSELOR: At all? You have no mem-memory?
BEAN: I remember going to her apartment. [huffs] And, um … and I raped her. I date raped her.
COUNSELOR: I-I’m … okay, with all due respect to — [to REED] I-I see that this is upsetting for you, and, from the time you walked in, that now makes more sense to me, why this is so distressful for you. So I want to respect both of your experience. [to BEAN] But I’m kind of confused in how you — what — how you — I mean, besides her saying something, what was your account of that, if you don’t remember anything besides going there?
BEAN: Um, well, I mean, the next day she confronted me about it, and I knew we had been intimate, you know — I-I knew we had done something, but I wasn’t sure what, exactly, it was. And then, you know, of course the next morning I wake up and I’m like, “Oh, yeah, we had sex. Yeah, it was good, you know, ‘cause … you know, we wanted it, obviously.” And then she told me she didn’t want it —
BEAN: — and I was very, very upset.
BEAN: And, I, uh, I — I kinda didn’t believe it. I wasn’t sure because I couldn’t remember it.
From RECORDING NO. 3 made in Reed’s apartment:
REED: I didn’t — I did not — I went — I had you come in with me, and we were naked, and I was gonna give you a blow job and I thought you were going to eat me out. That’s what I thought was gonna happen. And then all of a sudden you were on top of me, and you had your dick in your hands, and you were putting it in me, and it hurt so much, and I was saying, “Don’t do it.” (several sobs) I was saying, “Don’t! No, no!” (sobbing, sniffling) And you were on me and I was pinned like this. (rustling, gasp) And then I heard those two girls come back, and I — I was so drunk, and (gasp) I thought, “No, don’t, don’t scream, don’t kick him off you —
BEAN: We were — we were both so drunk and —
REED: It will make — it will make noise and they’ll know that you’re a slut and they’ll think that you meant to have sex and I didn’t, I didn’t! And I thought that it would just be better if it was just over, but you have so much fucking stamina, it went on forever.
BEAN: We — we were both really drunk, okay? (she wails) We were both really drunk, and it was a stupid mistake. It was something that was really fucking dumb.
REED: You didn’t listen to me, you didn’t care enough to listen to me, I was just a hole.
BEAN: I was drunk! I didn’t mean to, you’re not a whore, okay?
REED: Hole for you to stick —
BEAN: … oh.
REED: — your dick in. (gasps) I wasn’t a person, I wasn’t talking. Ugh.
BEAN: I’m sorry.
REED: That — the memory of it — the memory of it makes me want — (Reed is wailing.)
BEAN: I don’t — I don’t remember it. I don’t remember anything about it.
The adjudicators’ deliberate misstatement of the evidence demonstrates bias and a preconceived agenda to find Bean innocent of rape. As such, it is ample grounds to invalidate the decision rendered in this matter and grant Reed a hearing de novo.
B. The Decision, Deliberately or Indifferently, Misstates the Appellant’s Testimony
In the decision rendered by SJACS, the adjudicators identify several “facts” as “testified to” or “agreed on” by Appellant Reed which Reed never agreed upon or offered as part of her testimony or evidence. It is worth noting that although Reed requested that her sessions with the adjudicators be tape-recorded, this request was denied by Torres-Retana. Reed Decl., para. 4. Had Reed been able to tape record these sessions, she would now be able to prove definitively that her testimony was mischaracterized in the decision. Because her request for a recording was denied, she has only her own sworn testimony to identify the adjudicators misstatements of “fact.”
1. The adjudicators state: “While at the party, the couple began dancing together and displaying public affection. Both individuals agreed that the public affection included touching and making out.”
Reed categorically denies that she ever agreed that the behavior Bean unilaterally engaged in while they were dancing constituted a display of “public affection” or that it included “making out”. Indeed, in an email from Reed to SJACS on 1 February, she refers to the behavior on the dance floor explicitly, documenting that any such touching was not consensual and was not reciprocated by Reed (“ … after Bean embarrassed me on the dance floor”). Reed consistently reported to the adjudicators that Bean fingered her against her will, pulled her dress top down on the dance floor and “humiliated” her by sticking his hand down the neck of her dress and groping her breast, and then, when she attempted to pull the top of her dress back up, he continued to humiliate her by putting his hand up under her skirt, exposing her underwear and labia. Reed testified that his behavior had thereby escalated to assaultive behavior and Reed thereupon insisted that they leave. Reed Decl., para. 12.
In Reed’s account of this incident, this behavior in no way amounts to a “display of public affection”, in no way involved “making out”, and in no way involved Reed’s participation. For the adjudicators to characterize Reed’s testimony in the manner they did demonstrates gross disregard and disrespect of the victim, as well as bias and dishonesty.
2. The adjudicators state: “They [victim and accused] agreed they had sexual intercourse.”
As stated hereinabove, Reed insisted that the action was not “intercourse” (implying a voluntary interchange), but “sexual penetration” without consent. The use of the word “intercourse” betrayed a predisposition to regard the act as non-violent in intent and effect, and the use of this word to describe the action is contrary to the University’s own practice in defining rape as a “sexual act, either attempted or completed, when vaginal, anal or oral penetration takes place without the consent of the person penetrated …”
The fact that the adjudicators refer to the sex act as “intercourse” and assert that Reed “agreed” to such a characterization is biased, dishonest and negligent.
3. The adjudicators state: “They [victim and accused] agreed that their sexual engagement progressed from making out to performing mutual oral sex in the living room.”
Again, this not a true summary of Reed’s testimony. Reed was and remains adamant that Bean attempted to perform oral sex upon her on her living room couch, at which point she insisted that he desist and that they move to the privacy of her room for such intimate behavior, to which Reed had no particular objection as long as it was not occurring in a public space. Reed Decl., para. 13.
However, the adjudicators’ misstatement of Reed’s testimony again demonstrates their complete disregard of the distinctions drawn in Reed’s testimony and their predisposition to recast the “facts” in ways favorable to the accused and prejudicial to the victim.
4. The adjudicators state: “They agreed that in her bedroom, both individuals were completely undressed by their mutual doing and continued their mutual physical intimacy.”
Reed maintains that she never testified about these specifics or provided such a statement to SJACS because she simply doesn’t remember who did what in this regard. Reed Decl., id.
Again, the adjudicators’ misstatement of Reed’s testimony demonstrates their predisposition to recast the “facts” in ways favorable to the accused and prejudicial to the victim.
5. The adjudicators state: “Ms. Reed recalled telling Mr. Bean that she was not comfortable moving forward and that this would ruin their relationship, as well as saying that it hurt and asking for lubrication.”
To repeat unequivocally, Ms. Reed categorically denies ever “asking for lubrication” — a denial made particularly important because of the fact that the adjudicators relied on this mythical request for lubrication as evidence of Reed’s consent to intercourse. Reed Decl., para. 8.
Reed recalls that she shared with SJACS multiple statements she made to Bean before and after Bean forcibly inserted his penis into her. These statements included her assertion that she attempted to “reason” with Bean, and one of the several reasons she provided him for why they should not engage in sex at that time was her extreme pain, the fact that she was “bone dry” and the fact that neither she nor Bean had lubricant. At no time did Reed “request” lubricant; the absence of lubricant was another reason she supplied to Bean that he should stop because he was hurting her. Reed Decl., para. 8. It is highly significant and interesting to note, however, that had Reed in fact requested lubricant during otherwise consensual intercourse and not received cooperation from Bean, that failure by Bean would constitute a revocation of consent, and evidence that any further sexual activity would have been due to Bean forcing sex upon Reed against her expressed wishes.
This key misstatement of Reed’s testimony is foundational to the adjudicators’ finding of “consent”; it is clear evidence of the adjudicators’ gross indifference to the truth and bias against Reed.
6. The adjudicators state: “Ms. Reed recalled Mr. Bean subsequently asked for her permission to change positions, at which time she got off of the bed and walked over to the desk before re-engaging in intercourse while leaning on the desk. She says she did so out of fear.”
Ms. Reed denies ever stating that Bean “asked for her permission” for anything during the penetrative assault. To the contrary, Ms. Reed specifically recalls, and specifically recalls testifying, that she pointed out to Bean that Bean’s thrusting was making her bed squeak, which was horrifyingly humiliating to her. Reed testified that this was another attempt to reason Bean into discontinuing the forcible sex act. At that point, however, Bean told Reed that she should let him “do [her] from behind” over her desk, because it would be “quieter.” After more prolonged squeaking, Reed got down and bent over the desk. Reed Decl., para. 14. As to the adjudicators blithe assertion that she then commenced “re-engaging in intercourse,” Reed reasserts her objection to this characterization—Reed never characterized this as intercourse; Reed’s testimony was that Bean continued to rape her.
Again, this is a key misstatement of Reed’s testimony that is foundational to the adjudicators’ finding of “consent”. Again, this misstatement of the victim’s testimony is clear evidence of the adjudicators’ gross indifference to the truth and bias against Reed.
Reed has herein offered a detailed and credible basis to recognize that the adjudicators freely twisted and rewrote Reed’s testimony in order to support the decision they wished to reach. This close examination of the evidence submitted is significant and a ground for reversal of the decision not because the evidence points to a different verdict (although it does in fact point to a different verdict), but because the adjudicators’ willingness to rewrite Reed’s testimony and force words into her mouth that she never uttered is evidence of bias, deliberate indifference as to the truth, hostility, improper investigation, and inequitable treatment of the Appellant Reed. On this ground also, the adjudicators’ decision must be overturned and Reed given a re-hearing de novo.
C. The Decision Relies on Testimony Provided by the Accused that Was Never Provided to Reed
In the decision rendered by SJACS, the adjudicators identify several inaccurate “facts” which Reed was never informed of or allowed to respond to or rebut. The adjudicators’ reliance on these alleged “facts” in their decision highlights the magnitude of the error they committed by failing to inform Reed of these portions of Bean’s testimony.
1. The adjudicators state: “… the couple met at Ms. Reed’s apartment and consumed a shot of alcohol each. Ms. Reed provided Mr. Bean with alcohol as Ms. Reed was 21 and Mr. Bean 19.”
At no time did Reed testify that she provided Bean shots prior to the party she and Bean attended on 3 December 2010; Reed did not have alcohol at that time, which was indeed why she and Bean attended the “pre-gaming” party at her friend’s apartment that night, where Bean consumed in excess of ten shots, as corroborated by witness testimony. Reed was never informed that Bean testified Reed supplied him with liquor before they went out. Reed Decl., para. 15.
2. The adjudicators state: “Mr. Bean described both parties as … making verbal noises (moaning) …”
Again, SJACS incorporates Bean’s unsubstantiated assertion into their official findings, despite the fact that they never revealed this testimony to Reed and despite the fact that such testimony was flatly refuted by Reed’s testimony. Reed testified that she was, in fact, quiet throughout the duration of the incident because her roommates came home and she was mortified. This testimony is further corroborated by statements made by Reed in the October audio recordings, prior to the incident’s report. Reed Decl., para. 16.
3. The adjudicators state: “After the intercourse was completed, Mr. Bean recalled the two cuddling in Ms. Reed’s bed and continuing to kiss.”
Again, SJACS incorporates Bean’s unsubstantiated assertion into their official findings, despite the fact that they never revealed this testimony to Reed and despite the fact that such testimony was flatly refuted by Reed’s testimony. Reed testified that Bean attempted to cuddle up next to her, but that she turned to face the edge of the bed, that Bean fell asleep beside her in her bed, and that she lay awake for most of the night until he finally left in the morning. Reed Decl., para. 17.
The significance of these items of evidence — relied upon by the adjudicators in their decision — is that none of these allegations were ever revealed to Reed. This provides further evidence that the adjudicators did not provide equal treatment and disclosure to Reed as they did for Bean. On this ground also, the adjudicators’ decision must be overturned and Reed given a re-hearing de novo.
D. The Adjudicators Failed to Reference or Account for the Vast Bulk of Evidence Submitted by Reed in Support of her Assertion that She Was Raped by Bean
As already mentioned, Torres-Retana and Goldstein have further prejudiced Ms. Reed’s grounds for appeal by omitting almost all relevant evidence supplied by Ms. Reed over the six-month period, including but not limited to all of the following.
1. Failure to acknowledge Gmail chat with Moore the same day as the rape, in which Reed recounts her many instances of saying “no” to the penetrative sex act, and which serves as corroboration of Reed’s account of the rape under the “excited utterance” exception to the hearsay rules
2. Failure to reference Student Counseling records and Reed’s cluster of symptoms consistent with Rape Trauma Syndrome, which serve as corroboration that Reed’s perception of the event was that it was indeed rape.
3. Failure to acknowledge witness testimony from Reed’s TA from 2010, who noted that Reed called him “crying” the day of the rape; Hoefer also corroborated the onset of Reed’s RTS, stating Reed’s demeanor in class changed after 4 December 2010.
4. Failure to acknowledge the additional audio recordings in which Bean freely left when he desired, and volunteered the fact that he “raped” Reed in front of two witnesses—two counselors from whom he was asking help and to whom he had no motive to lie.
5. Failure to acknowledge Bean’s diary entry from 2010 in which he states he had engaged in drunken intercourse with Reed that he was aware they had not both wanted (i.e. Bean’s 2010 statement that Bean and Reed had engaged in drunken non-consensual intercourse in December 2010).
6. Failure to acknowledge Reed’s downward trend in grades following the incident, which corroborate the onset of RTS.
7. Failure to acknowledge Reed’s severe medical health issues following the incident, which corroborates the onset of RTS.
The University’s own Curriculum for Adjudicators of Sexual Violence Cases pamphlet instructs adjudicators to consider corroborating evidence, such as the presence of rape trauma syndrome (RTS) in the complainant.
In cases when the accused insists that the sexual intercourse took place but it was a consensual intercourse and, technically, it is a “he said, she said” situation, rape trauma syndrome evidence can be, [sic] a factor, if not corroborating the victim’s credibility, then at the very least, educating the Adjudicating Body about the impact of rape on the victim. (33)
Reed at all times relevant hereto presented as someone who had experienced a profound trauma; further, Reed released her student counseling records to establish the presence of anxiety and stress, clinical depression, and the onset of suicidality over the two-year period following her rape.
The adjudicators failures to reference any of this evidence, even to discount it, further demonstrates the inadequacy of their investigation and the inequity inherent in their decision.
E. The Adjudicators Failed Utterly to Account for the Inconsistencies Between Bean’s Testimony and the Statements He Made in the Audio Records
The Curriculum for Adjudicators of Sexual Violence Cases pamphlet also instructs adjudicators to “[p]ay attention to the inconsistencies in both of the accused person’s and victim’s versions of the events.” Reed attempted at numerous junctures to point out the inconsistencies between Bean’s testimony and his accounts of that evening made on prior occasions. Reed’s efforts in this regard are documented by emails sent throughout the process by Reed to the adjudicators as well as by emails sent by Reed to Reed’s advocate, Danielle Lancon. Most significantly, Bean’s story changed from “no memory” of the event because he was “black-out drunk” (in December 2010, December 2011 and October and November of 2012) to recounting specifics of the incident in testimony provided to Torres-Retana and Goldstein in 2013.
This crucial inconsistency was key not only to establishing Bean’s guilt of the offense, but also to understanding the nearly incomprehensible fact of Reed’s continued relationship with Bean—a fact that the adjudicators do cursorily relate in the predicate to their decision. When the relationship is understood as the response to a lie buttressed by protestations of remorse and love, it is no longer incomprehensible, but if Bean’s inconsistency in this regard is omitted, the omission makes Reed appear either insane or motivated by ill-will.
At all times throughout a two-year period, documented by student counseling records, witness testimony, as well as email and diary entries provided by Reed, Reed’s story has remained consistent. The adjudicators deliberate omission of Bean’s inconsistency again serves to demonstrate their bias, indifference, failures to investigation and unfair treatment of the victim.
F. The Adjudicators Failed Utterly to Account for Bean’s Independent 2010 Admission to Engaging in Drunken Non-consensual Intercourse with Reed
As a final ground of bias, failure to investigate and inequitable treatment, Ms. Reed points to the adjudicators omission from their decision a critical admission Bean made to himself in his own diary which confirms that as early as mid-December 2010, Bean knew his sexual penetration of Ms. Reed on 4 December 2010 complained-of was not consensual.
After SJACS informed Ms. Reed that Bean had testified that the sex was “consensual” — despite his repeated admissions in the audio recordings that he had no memory with which to assert such a claim — Ms. Reed provided SJACS with a 31 October 2012 email in which Bean quoted from his diary for the year 2010. In this diary entry, dated approximately 16 December 2010, Bean wrote:
For the first time made love, not while drunk, in the morning. Maybe noon, and this time we both wanted to be with each other.
This single piece of evidence by itself displays a guilty knowledge that existed long before Reed taped Bean’s confession four separate times. Whatever justification Bean purported to have for repeatedly making a false confession to Ms. Reed and to counselors at the end of his relationship with Ms. Reed, he certainly did not have that justification when writing a private note to himself in his private diary in 2010. Exclusion of Bean’s unprompted personal admission to himself — that he engaged in intoxicated intercourse that he was aware Reed did not “want” — renders any finding against Ms. Reed improper, biased, deliberately indifferent as to the truth, and inequitable in its treatment of Ms. Reed. On this ground as well, the adjudicators’ decision must be overturned and Reed given a re-hearing de novo.
Complainant Reed respectfully asserts that any one of the violations documented hereinabove is sufficient grounds to require that the decision in this matter be set aside for a hearing de novo. Reed further respectfully suggests that the cumulation of abuses and violations by Torres-Retana and Goldstein demonstrates a deliberate indifference toward Reed’s rights and towards the violation of her person such that their performance in this adjudication is shocking to the conscience and should not be countenanced by the University.
. . . . . .
Please note: The “findings” letter to which this appeal refers can be found online at SlideShare. I have never been able to upload it to this blog in full because I don’t know a thing about PDFs.