With the initial facts (she had oral sex with him while he was in a blackout state) it could potentially have been the case that he raped her, by forcing her to give him oral sex. A blackout state means that he didn’t remember afterwards what he did; it doesn’t mean he was unconscious.
The investigator did a terrible, biased job of investigating this case, and an innocent guy was punished. But there are cases where a guy who is in a blackout state rapes a person.
According to the following article, the woman initiated the sexual contact.
http://www.mindingthecampus.org/2015/06/amhersts-version-of-kafkas-the-trial/
Here is the original complaint:
https://kcjohnson.files.■■■■■■■■■■■■■/2013/08/amherst-complaint.pdf
I think you are preaching to the choir - if you go back and read the thread where we discussed the Amherst case I don’t think anyone agreed with the result reached in that case.
@ bluebayou
The Yale case was filed by the Title IX administrator in mid November. As of that date, nobody at Yale but the members of the basketball team and its coach was thinking of a possible trip to the NCAA. Sports aren’t a big deal at Yale. There are only a few sporting events most Yalies care about, most notably the Harvard-Yale football game. Among the sports, IME hockey and football are more important than basketball. Heck, I think a lot of people would claim squash is more important than basketball. While Montague was captain, he was far from Yale’s best player. I’m just trying to explain that he really wasn’t the equivalent of the captain of the basketball team at Ohio State or Duke.
Yale’s rules provide that investigations are supposed to wrap up in 60 days. That’s exactly what happened here. Now by the time the 60 days ended AND the time to appeal ended, the basketball team was in the limelight. But at the BEGINNING of the process nobody would have predicted that.
Step one is filing a complaint. I’d be stunned if Yale didn’t make a motion to dismiss. Based on the decision in Doe v. Columbia University, 101 F. Supp. 3d 356 - Dist. Court, SD New York 2015 it’s obvious that withstanding that motion to dismiss will be an uphill battle. (If you’re interested, you can read the decision here. https://scholar.google.com/scholar_case?case=283545233125128217&q=doe+v+columbia+u&hl=en&as_sdt=6,33 ) The court might give leave to replead. Yale will probably renew its motion to dismiss. This could easily take a year or two. (In Doe v Columbia U, two years elapsed between Doe’s expulsion and the court’s holding that he failed to state a claim. ) Personally, I think Yale will probably win a motion to dismiss a Title IX claim and we’ll never get to the discovery stage.
So, then it will be a breach of contract. I think that’s tough to win too.
The “minor” show of support hurt Montague because it “outed” him. Before it, though there were rumors, nobody knew why Montague had left. He could have had a brain tumor for all anyone knew. He could have sued Yale as John Doe and Yale might have settled.
But thanks to his teammates and his dad, the world now knows why he left. And, from what I know of Yale, the way Montague & Co. have spun this in the media makes it extremely unlikely Yale will settle.
And, @Ohiodad51 it’s not as though discovery only hurts Yale. If this gets beyond a motion to dismiss, we are going to hear what Montague did that lead Yale to expel him. And odds are Yale’s version won’t be as sympathetic to Montague as his attorney’s PR release is.
In retrospect the “outing” has worked in Montague’s favor as there is very little if any media coverage that portrays him in a bad light. Montague and his family have nothing to lose by pursuing a lawsuit if after whatever investigation and strategy the legal team is working on does not discover something that would not work in his favor and if they uncover something that would be so egregious as to taint a potential suit I’m sure we will find that they never file. So I don’t see a downside. It is an uphill battle as most of the lawsuits to date have shown, but also the benefit of previous suits is the judicial rulings which will guide how they craft this lawsuit…but really can’t think of a down-side to attempting to recover his diploma. The young man is working somewhere…which is what he probably would have been doing a couple months from now anyway post graduation - his loss is the diploma and the potential career in a European basketball league - and even that doesn’t require a diploma.
@jonri, true, discovery cuts both ways. But I am not sure how much worse he can look, if the goal is to “muddy the waters” sufficient to give him plausible deniability of having committed sexual assault. I know that personally if someone did not fight an expulsion that close to graduation I would assume that ether the charges were true or that there were other less than savory things in that applicant’s background. In that sense, the fact that the expulsion happens so close to graduation really puts the kid in a bind. Had he been expelled as a sophomore say it might have been possible to convince a future employer that you just wanted to “put it all behind him” or some such, and allow the general distrust over what is going on on campuses to carry him through. Harder to make that argument during your last semester.
As far as the legal stuff, yep that is a huge hurdle. I would just caution, again, relying on District Court opinions from different districts on cases like this. Yes, Judge Furman’s opinion pretty much shuts the door on any Title IX challenges by men in his Court. But he is not the only District Judge, and as is normal with the law we seem to see some cases make it past the 12(b) dismissal stage, and other like Doe which do not. It is really hard to get a sense where the courts are going to land on these issues until we start to see some Circuit Court opinions in the next couple years.
As far as why we are where we are, in my opinion, Montague’s “worst case” scenario is not too far from where he is right now. He left school a few months before graduation, while the captain of the basketball team. Anyone who ever wants to hire the guy is going to be very curious about that. The idea that in the context of his future professional life, this could be “kept under the radar” is farcical.
From Yale’s perspective though it is hard to see how the publicity doesn’t hurt the school. Leave aside that in pretty much every case that we see which gets to the discovery stage the school looks like the keystone cops at best. Right now, Yale can let the advocacy groups run around and call him a rapist, and intimate that he was a really bad guy and there is more to the story. But if the timeline as set out is even remotely accurate, and this case gets to discovery, some one will have to explain how they found enough evidence to expel a guy about an incident that occurred a year previous. And if there is actual proof of assault, or even if there is proof that he assaulted others, someone is going to have to answer for why the school didn’t go to the police. To me I guess it comes down to as the father of a son, I want to know how the heck they can expel a kid during his last semester based on a year old incident. As the father of a daughter, I want to know why they let this kid run around free on campus if in fact this was a pattern of behavior.
And I think you discount his importance as captain. Maybe not on the larger campus, but within the basketball program, and especially among his teammates being named captain is a huge deal and often has little to do with whether the person selected was the best athlete. The notion that the guys he sweated and puked and struggled with would neither know nor care what was going on is not how it works.
Why can’t Montague play basketball in a European basketball league?
I agree that his team cares about him. It’s just that but for his teammates’ demonstration and Yale’s trip to the NCAA, his departure from the Yale team would not have been national news. After all, he hadn’t been playing for Yale for a couple of weeks before the demonstration and the few news stories about it said nothing about sexual assault. After the demo, his father confirmed it was for sexual assault and said it was “ridiculous.” His childhood friend Blake Thomson has run around giving interviews to Newsweek and other news companies. Thomson or someone else talked to the Daily Mail in the UK.
I think if that hadn’t happened, Yale would be more willing to settle than it is now.
The District of Connecticut and the Southern District of New York are both in the Second Circuit.The Southern District is effectively first among equals. As a practical matter, the District of Connecticut tends to follow SDNY.
I know they are both in the Second Circuit, and I know the Southern District believes itself to be first, although I am not sure about the equal part 
. I still think we need to wait for the Circuit Courts to start weighing in before we start drawing broad conclusions about how these cases are going to be decided.
^^True being named captain is a “leadership” thing at the very core. I recall this year there was much speculation why Michigan State’s quarterback - supposedly one of the best in the nation and a senior was NOT a team captain. In sports, it’s all about leadership and who the teams respects. So yes, Ohiodad, I agree with that counterpoint to Jonri’s post.
It would have come out somehow. The fact that the captain left the school just before the tournament and so close to graduation would have led to questions from the media - Yale wining the league and making the NCAA tournament was big news. Someone would have told or speculated that it was for something bad. If he was ill, he could have been allowed to sit on the bench with the team.
With the tribunal, my understanding is that they vote responsible or not in a “secret ballot”. Does that mean unlike a jury there is no back and forth discussion on whether or not the accused is guilty? Seems like the jury process, for good and bad, does work to clarify issues when the reasons why some say guilty and others do not agree can be determined.
Jonri’s point that nobody had any idea the team would go to the NCAA tourney or get national attention when this was decided, adds an interesting layer.
Actually it is not the panel that makes the final decision. They vote and make a recommendation. That finding is then forwarded to the dean of the school within Yale that the accused is enrolled in. He reviews the recommendation and there is back and forth between the dean and panel about the decision. The dean then renders the final decision.
I think that as things currently stand the version of events put forth by Montague’s attorney give him cover for the future for those who distrust college tribunals and don’t wish to look further. If there are no further disclosures, some Yale alumni who is firmly in his court can employ him, and as time goes by many people will accept the story that he was one of the men unfairly expelled during this period. If there are further disclosures, he’ll have a bigger problem.
So it would seem to me that the suit being dismissed outright would be the best outcome for him if he is indeed guilty or has a prior negative discipIinary record. If he’s innocent, the reverse is probably true.
Don’t be ridiculous.
Suppose you’re the Yale administrator. Someone comes to you, to the informal proceeding, and says, I was having a consensual sexual relationship with X, then out of the blue he raped me anally. Not much you can do, it’s he said she said. Then six months later, another woman who seems to be unrelated to the first woman says, I was having a consensual sexual relationship with X, and then out of the blue he raped me anally. Whoa, what’s going on here? Then a third woman, seemingly unrelated to the first two, says, I was having a consensual sexual relationship with X, then out of the blue he raped me anally.
(1) There is no way the police are going to listen to this. Not for a millisecond. There is no point going to the police.
(2) Three strikes, he’s out, if Yale is convinced that the women aren’t colluding.
The somebody is going to have to answer to the not going to the police argument is nonsensical.
I like what @jonri wrote a few days earlier about how well the police did in the Duke case, etc.
I like how some DAs and some attorneys say do not push criminal proceedings.
Let’s say I am a junior in college. I am sexually assaulted. I go to the police. It is going to take a couple of years for the criminal justice system to handle the case. What am I supposed to do during those couple of years?
Let’s say I go to civil court? How long can that take? More than 2 years. How much does this cost?
A friend of mine is in court trying to settle a case.
Let’s say each side in my friend’s case has two attorneys. The trial lasts 10 days. How much do those 10 days cost?
One more thing… The effectiveness of the criminal justice system on rapes…
Google Samantha Bee and rape kits.
And if we are going to speculate @“Cardinal Fang” I can add something more. One of these young women, having never experienced anal sex before, is very sore and very frightened. So she goes to a physician. The physician confirms semen in anus…if no condom was used…or other evidence that anal sex occurred. Maybe abrasions in the anus.
A year later, when she does complain about what happened, the Title IX administrator asks her if she told anyone else at the time. She says she told a doctor. She agrees to waive physician-patient privilege for the limited purpose of confirming this. So, Yale gets access to medical records that confirm on the date in question or a day or two later she went to a physician and was treated. Medical records are completely consistent with her current story.
She doesn’t want to go the formal route, but the Title IX administrator is aware of other complaints like those CF IMAGINES. This complainant is the only one who sought medical attention so this is the only one that can be independently corroborated at all. . So Title IX co-ordinator files a formal complaint.
The point is–WE DO NOT KNOW. Lots of worse stuff MIGHT come out if Montague pursues this.
So going to the police is nonsensical? But somehow it is a good look for Yale to say “Yeah, we are convinced we had a serial rapist on our campus, in fact we had several credible accusations made against him, about which we did nothing. But you know what? A lot of local law enforcement offices don’t test all their rape kits (and never mind about the fact that most complaints of rape are withdrawn within days of being made, or that rape kits don’t have much if anything to do with acquaintance rape, we saw a segment on HuffPo about how the police hate women!). So therefore we just let this kid hang around and keep raping women until he hit the magic number then we kicked him out two months before graduation after giving him ten minutes to tell his side of the story. By the way, tuition, room and board next year is $60k. Thanks. PS Connecticut, please don’t tax us”
I edited my post… Maybe you missed my edit.
Reread the first sentence.
One segment? Lol
Stop excusing the lack of testing of rape kits. As the rape kits are tested, do you know what is discovered?
Rapists.
@Ohio but keep in mind that we don’t know that the other suspected offense(s) were in any way related to sexual assault. The latest statement from Conroy alluded to offenses under the student regulations:
There are many things like hazing, physical assault and other offenses under those regs which might have things in common with what the Title IX coordinator brought to the UWC. They could look at everything in its totality and conclude either that it gave credibility to what the Title IX coordinator brought to them, or that the offenses in their totality were worthy of expulsion.
And thinking about this a little more I do not think Yale would have standing to take the report to the police. There are very few states that require that by law and I am pretty sure CT is not one of them. University personnel, as far as I know, are only mandatory reporters for crimes they become aware of against minors, the elderly or mentally impaired persons. Basically individuals who might not have the ability or opportunity to speak for themselves.