University Title IX coordinator Sarah Affel presents at a Student Assembly meeting in Willard Straight Hall on Thursday, April 20.

Michael Suguitan / Sun Staff Photographer

University Title IX coordinator Sarah Affel presents at a Student Assembly meeting in Willard Straight Hall on Thursday, April 20.

May 7, 2017

8 Texts, 2 Stories, 1 Investigator: Inside a Cornell Title IX Case

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Hours before the moment in 2015 that sparked a Cornell Title IX investigation and two lawsuits, Sally Roe and James Doe began their nights as many students do in college towns across the country, by leaving a fraternity house and venturing off campus to locate a party.

The two students, whose real names The Sun is withholding, spent about an hour in Ithaca’s Collegetown before returning to the fraternity house — Doe’s — and receding to Doe’s bedroom alone.

What happened next was the subject of a nearly five-month-long Cornell Title IX Office investigation based largely on text messages, a friend who spoke to Roe later that night and a Title IX investigator’s assessment of each student’s credibility. The investigator’s ultimate decision that Doe should be suspended for at least a year was later overturned by the University’s highest appellate panel for Title IX investigations, and Doe is suing the University for what he says was a “fatally flawed” investigation.

Cornell requires all parties to keep confidential anything they learn in the course of Title IX investigations, meaning the Title IX Office’s inner workings are rarely exposed to the public. Court documents from one of Doe’s two lawsuits give an inside look at how the University’s Title IX Office handled the complex case, shedding light on how at least one Title IX investigator came to a conclusion.

Elizabeth McGrath, the Title IX investigator whose investigative report happened to become public record, attempted to handle a difficult charge: to find the truth between two irreconcilable narratives.

Both Doe and Roe agree that when they got back to Doe’s room, they began to kiss consensually. Their stories diverge from there, with Roe alleging that Doe took things too far by trying to unhook her bra despite her repeated demands that he not.

Doe ignored her protests and became even more aggressive, Roe alleges, violently yanking her hair, lacing his fingers around her neck and choking her for about five seconds. As a matter of self-defense, Roe says, she punched Doe’s genitals and left the room.

Doe’s story is different.

After kissing consensually, Doe says Roe pinned his wrists to his bed, sat on top of him and began kissing him aggressively, gestures that made Doe uncomfortable since he had been sexually assaulted in the past, he said.

Doe says he asked Roe to be more gentle, but, when she refused, tried to shift Roe off his body by placing his hand on her collarbone and firmly pushing. Less than half a second after he put his hand on Roe’s collarbone, Roe punched him in the genitals, he says.

Elizabeth McGrath (left) investigated the claims of Doe and Roe before making a recommendation that was later overturned. Sarah Affel (right) is the University's current Title IX coordinator.

Cornell Marketing Group

Elizabeth McGrath (left) investigated the claims of Doe and Roe before making a recommendation that was later overturned. Sarah Affel (right) is the University’s current Title IX coordinator.

Tasked with determining which of the two accounts was “more likely than not” to have been true — a standard of proof required by the Department of Education’s Office for Civil Rights — McGrath had little to work with. There were the two competing reports, interviews with several people who spoke to one or both of the students afterward, and other evidence, like text messages between Doe and Roe on the morning after the incident and a picture of Doe’s bedroom.

As is typical in Title IX cases handled by universities across the country, neither Roe nor Doe had the right to cross examine the other, to confront witnesses or to be represented by an attorney.

Cornell’s Title IX Office received 32 formal complaints of sexual violence or sexual harassment during the 2014-15 and 2015-16 academic years under Policy 6.4, the University’s statute governing procedures for those allegations, according to the office’s statistics.

Investigators found 20 students responsible, 11 not responsible and dismissed one complaint, and of the 20 found responsible, eight were dismissed, 10 suspended and two placed on probation.

Appearance, Demeanor and Frankness

The evidence in the case of Doe and Roe did not point overwhelmingly to one conclusion. Asked which party they thought was more truthful, most witnesses — including the two closest to the situation — said they did not know.

McGrath, who no longer works at Cornell, wrote in the investigative report that she would have to rely on her own “commonsense [sic], life experience, knowledge of human nature, and good judgment” to render a decision.

The investigator began her report by considering the parties’ “general credibility and character,” including “appearance, demeanor and frankness.”

Asked how investigators assess such characteristics, Title IX Coordinator Sarah B. Affel told The Sun that “Cornell provides extensive internal and external training” to investigators “on all aspects of their jobs, and consistent with federal and state laws, regulations and guidance on training.”

After discussing her impressions of the parties — including her feeling that Doe was socially awkward — McGrath’s credibility analysis involved looking for inconsistencies in their stories.

The investigator found several inconsistencies in Roe’s account. Roe originally said she met Doe in Collegetown rather than in his fraternity house, falsely said she had never been to Doe’s fraternity house before that night, and initially failed to tell McGrath that she was friends with one of Doe’s fraternity brothers, a relevant detail because he was one of the witnesses.

McGrath also noted that Roe asked the University to extend Doe’s interim suspension, saying his presence at Cornell gave her anxiety, but returned to Doe’s fraternity house less than 24 hours after their initial encounter and several more times later that week, although she did not interact with Doe during these subsequent visits.

These discrepancies were not significant, McGrath said, because they did not “concern the incident at hand” and were “likely a result of [Roe’s] wish to keep details of her life private.”

Day Hall, home to Cornell's central administration and its Title IX compliance office.

Omar Abdul-Rahim / Sun Staff Photographer

Day Hall, home to Cornell’s central administration and its Title IX compliance office.

As for Doe, McGrath said some of his comments “seemed incredible or were inconsistent,” such as when he took off his own shirt and asked Roe to take hers off, in spite of his discomfort with Roe’s allegedly aggressive behavior.

Doe also admitted to modifying his own written reports of the incident after speaking with his lawyer, McGrath said. It was not clear what changed between Doe’s initial and final drafts, but Doe’s testimony was “consistent with a document he admittedly changed after he first wrote it,” the investigator said.

A text message conversation between Doe and Roe the morning after their encounter, McGrath said, was “the clearest record of their feelings toward one another after the incident and before there was a suggestion of an investigation or complaint.”

Doe initiated the exchange, screenshots of which were filed in Tompkins County Court, six or seven hours after the incident in his bedroom:

Doe: I have no interest in you, but I don’t like to leave bad feelings to ferment. If you would like to calmly talk sometime, I feel like it would clarify any misunderstandings.

Roe: I’m honestly scared to be around you now.

D: That’s exactly why I think there’s a misunderstanding. The moment you implied you weren’t having fun I implored you to leave.

R: BS you did

D: Fine, don’t talk it out with me. If you want to let your own insecurities control you, it’s your problem, not mine.

R: I’m sorry I told you to stop multiple times and yet you decided to choke me

D: Now I’m starting to realize the misunderstanding. I, possibly as my own fault, never understood you telling me this. I apologize.

R: I hate talking about this over txt

McGrath trained her sights on Doe’s final text, writing,“The investigator considers this final message to be an admission of some type of unwanted conduct on his behavior.” The texts, in part, led to her conclusion that Roe’s allegation that Doe choked her was more likely than not to be true.

‘Motive and Opportunity to Lie’

As part of the investigation, McGrath then assessed each party’s “motive and opportunity to lie.” She found that Doe had a possible reason and opportunity to lie, noting that he only complained of being punched in the testicles after the Office of the Judicial Administrator issued him a temporary suspension due to Roe’s initial complaint under the Campus Code of Conduct.

The “timing and nature” of Doe’s complaint “supports an inference that it was part of a strategy to lift the [interim] suspension rather than a good faith belief that he was the victim of sexual violence,” McGrath wrote in the Motive to Lie section of the report.

McGrath also thought it odd that when Doe’s fraternity brothers confronted him about the choking allegations, Doe responded by saying that Roe should not have considered his actions choking because he is practiced in BDSM. McGrath thought Doe’s reaction in this “unguarded” moment belied his candid thoughts since he, directly confronted by this fraternity brothers, had no opportunity to conjure a fake story.

The investigator said Doe’s allegedly candid response was “a bizarre response to make while also maintaining that he was the victim.”

Doe’s attorney maintains in the federal lawsuit that Doe was never interviewed prior to being given the interim suspension, a claim that court documents support.

G10 Biotech, where OCR attorneys held three public focus groups in March.

Adrian Boteanu / Sun Staff Photographer

G10 Biotech, where OCR attorneys held three public focus groups in March.

McGrath said Roe, on the other hand, “seemed to disclose the alleged sexual assault in an effort to get help from friends and the University.” After Roe filed the initial complaint with the OJA, Doe filed a report of his own, as well as a complaint under Policy 6.4. Roe then filed a Policy 6.4 complaint as well.

McGrath also said Roe had no opportunity to lie because, according to one of the witnesses, Roe walked out of Doe’s room and immediately said she had been choked, indicating that the story was true and not contrived.

McGrath wrote that one witness “described Roe’s face as red and said she looked disheveled as though she had been crying” when she left Doe’s room.

The investigator’s comments were based on a witness who said “[Roe’s] cheeks were flushed. I don’t really recall much more. Maybe her hair was a little bit disheveled” and that Roe “seemed like she was tearing. Wait was she? I feel like it was more like very flustered and not really — maybe her eyes looked red, but it might not have been from tears.”

The same witness said he did not see any finger marks or bruises appear on or around Roe’s neck, according to McGrath’s summary of her interview with the witness.

Taking all the evidence together, McGrath found it “more likely than not” that Doe choked Roe in the fraternity that night in 2015. She said she gave “great weight” to Roe’s conversation with the witness after leaving Doe’s room, the text messages and Doe’s “claim about being skilled in the art of BDSM when first told about the investigation.”

McGrath’s decision was that since Roe’s story was “more likely than not” to be true, Doe was guilty of sexual assault under Policy 6.4 — the only violent offense federally-funded universities are required to adjudicate.

Doe should be suspended indefinitely, but at least for one year, McGrath determined, saying the sanction “attempts to balance Cornell’s interest in keeping members of [the] Cornell community safe, while remaining fair to [Doe].”

The University’s highest appeal board under Policy 6.4 — simply called the “Appeal Panel” — struck down McGrath’s suggested suspension nine months later, placing Doe on probation instead.

Representatives for Doe and Roe were each contacted for this story and declined to comment.

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