IUPUI male student loses bid to stop 2-year suspension based on sexual harassment

Editor’s note: This story contains sexually explicit content.

An Indianapolis college student suspended for an act of sexual misconduct has lost his bid to stop the two-year suspension from taking effect. The ruling also implicates the student’s immigration status.

Indiana Southern District Judge James R. Sweeney declined to enter a preliminary injunction against Indiana University after John Doe, a student at Indiana University Purdue University – Indianapolis, was suspended in April through May 2023. The judge also declined to prohibit the school from seeking to revoke Doe’s student visa immigration status.

Doe was suspended on April 19 after a university hearing panel determined he had violated the Indiana University Code of Student Rights, Responsibilities, and Conduct by committing harassment, including sexual harassment, and non-consensual sexual penetration against fellow student Jane Roe.

According to Sweeney — who said his recitation of facts was taken largely from Doe’s brief in support of his preliminary injunction motion — Doe and Roe met in a class in 2019, spent time together and engaged in one consensual sexual encounter that year. The two reconnected in mid-2020, and on Sept. 11, 2020, Roe invited Doe to her apartment.

When Doe arrived, the two began a consensual sexual encounter. Roe informed Doe that she had not had sex before but wanted to that night. However, Roe later told Doe three times that she was experiencing discomfort and asked Doe to stop penetrating her. The two reengaged in sexual intercourse after Roe’s first two requests to stop but did not reengage after the third.

According to Sweeney, Roe cried after the encounter and alleged she had cried during it. Also, Doe’s hands were interlocked with Roe’s above her head before she said “stop.”

Roe reported the incident to IU police the next day, claiming Doe had burglarized her apartment, confined her and sexually assaulted her. IUPUI began an investigation, and investigator Kailey Rigdon told Doe only firsthand witnesses would be allowed to testify at a hearing on the matter.

Doe did not call any witnesses, but Roe did. One witness testified that she received a video call from Roe, who was “crying hysterically” and said, “I think I was just raped.”

“Moreover,” Sweeney wrote, “based on the undisputed facts, including that [R]oe’s ‘hands were held above her head, she was crying after penetration and [her] distress immediately after the encounter,’ the Hearing Panel concluded ‘that it is more likely than not that [Roe] did not consent to vaginal penetration.’ As a result, IUPUI suspended Doe effective immediately and until May 21, 2023.”

Doe’s appeal to the dean of students was denied. He filed a Title IX complaint against IUPUI and the trustees of IU, then filed a motion for a temporary restraining order that Sweeney treated as a motion for preliminary injunction.

In his motion, Doe made allegations of sex-based bias and a conflict of interest on the hearing panel. He challenged the way the hearing was conducted and the panel’s weighing of the evidence, describing the disciplinary action as being a case of “he-said-she-said.”

“Thus, Doe essentially concedes that in order to resolve the charges against him, the Hearing Panel had to find that either Doe or Roe was credible and that the other was not,” Sweeney wrote in a Thursday order. “The mere fact that the Hearing Panel ultimately found Roe more credible than Doe does not reasonably suggest a bias against him because of his sex.

“Doe simply takes issue with the Hearing Panel’s weighing of the evidence before it,” the judge continued. “Based on the record before the Court, a different view as to how the evidence should have been weighed by the Hearing Panel does not reasonably suggest a bias against Doe based on his sex.”

The IU policy provides that consent can be withdrawn at any time, Sweeney noted, and Doe complained that the burden was placed on him to prove consent. Even if that were true, Sweeney held, that would “amount() to a challenge to a bias in favor of alleged sexual-assault victims,” not a bias based on sex.

Doe also alleged that, had Rigdon not told him he could only call firsthand witnesses, he would have called a professor who could have “testified about Doe’s and Roe’s interactions in the classroom in 2019 … .” But Sweeney said that testimony would not have been relevant, because “any interactions between Doe and Roe ‘long before’ the incident would have little to no bearing on what did or did not happen the night in question.”

Doe’s conflict-of-interest claim was based on hearing panel chair Jose Magallon, IUPUI’s assistant director of the Office of Student Conduct. Doe argued Magallon and Rigdon could have reviewed documents and discussed the matter together before the hearing, but Sweeney said there was uncontradicted evidence to the contrary.

Doe himself made contradictory statements during the hearing, Sweeney continued. Specifically, Doe initially said he believed Roe was experiencing discomfort because she had not had sex before, and that she had verbally and physically expressed her desire to continue even after asking him to stop. But later, he said he did not believe that Roe had never had sex.

“While under the Policy, ‘Consent cannot be assumed based on … the absence of ‘no’ or ‘stop,’ no persuasive argument can be made that the complainant’s assertion of ‘stop’ during sexual penetration is not a withdrawal of consent,” the judge wrote.

Finally, Doe argued his two-year suspension was too severe, claiming the panel had not considered the absence of aggravators and the presence of mitigators. But Sweeney disagreed, writing that the panel “did consider Doe’s lack of understanding of the events with Roe … and the absence of premeditation or other forms of physical violence as mitigating factors.”

“While a two-year suspension is serious for any student on the brink of graduation, and even more so given Doe’s immigrations status, the Hearing Panel could have imposed the sanction of expulsion for the conduct for which it found Doe responsible,” Sweeney wrote. “Indeed, that is the typical sanction for the conduct for which the Hearing Panel found Doe responsible.”

Sweeney said the two cases Doe relied on to support his motion for an injunction — Doe v. University of Notre Dame, 3:17-cv-298, 2017 WL 183693 (N.D. Ind. 2017), and Joll v. Valparaiso Community Schools, 953 F.3d 923, 929 (7th Cir. 2020) — were inapposite.

“Because Doe cannot raise a reasonable inference that his suspension was because of his sex, he has not shown some likelihood of success on the merits of his Title IX claim,” Sweeney concluded in John Doe v. Trustees of Indiana University, Indiana University Purdue University – Indianapolis, 1:21-cv-973. “Therefore, the Court’s analysis ends, and the Court finds that the motion for preliminary injunction must be denied.”

Doe is represented by lawyers Jonathan Bont and Ian Goodman with Paganelli Law Group in Indianapolis. In a statement to Indiana Lawyer, Bont said, “We are disappointed with the decision and are discussing it with our client.”

The IU defendants are represented by a team from Hoover Hull Turner LLP in Indianapolis. An IU spokesman declined to comment.

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