UNIVERS ITY OF M INNESOTA Office• fl~r Stlllil'lll Cmulllt'l all(/,\ rademk lufcgrlty Tll'ill Cities CIIIIIJIIU (~l)it'•·.tiw Swdi•ut,\Ditil:< 211 tlppld•Y /lull /28 P/ea.', MN 55455 Ofjice: 612-62-1·6073 Fox: 612-626·22YS \\~/J.~i/l'.' 11'\I'II! J/Illll,l't/JJ/{1.\' I'({i PERSONAL AND CONFIDENTIAL Regarding Case Dear The Office of Equal Opportunity and Affirmative Action (EOAA) has concluded the investigation regarding incidents which occurred on September 2 involving several other students. The EOAA report states you engaged in sexual misconduct by sexually assaulting and harassing another University of Minnesota student. This incident involved several University of Minnesota students and a football recruit. In order to determine a possible violation of the Student Conduct Code, EOAA conducted a thorough investigation which included interviews with you, the reporting student and witnesses. They considered all of the evidence and the credibility of witnesses in their investigation. Upon completion of the investigation, EOAA forwarded the report to our office. Attached you will find ~t. In order to protect the identity of the parties involved, this repotted is redacted and you are identified as Reading through this report may cause unexpected emotions or reactions. You may want to consider reading this letter and the EOAA repott with a support person to help you process your reactions and/or help explain next steps of the process or what options may be available to you at this point. If you would like support while you read this report, I encourage you to make an appointment with the Student Counseling Services or the Student Confl ict Resolution Center. As the result of the investigation completed by EOAA you have been found responsible for violating the University of Minnesota Student Conduct Code, specifically: Subd. 6. Harm to Person. Harm to person means engaging in conduct that endangers or threatens to endanger the physical and/or mental health, safety, or welfare of another person, including, but not limited to, threatening, stalking, harassing, intimidating, or assaulting behavior. Subd. 8. Sexual Misconduct. Sexual misconduct means any non-?consensual behavior of a sexual nature that is committed by force or intimidation, or that is otherwise unwelcome. Sexual misconduct includes the following behaviors: sexual assault, relationship violence, stalking, and sexual or gender-based harassment. Subd. 19. Violation of University Rules. Violation of University rules means engaging in conduct that violates University, collegiate, or deparimental regulations that have been posted or publicized, including provisions contained in University contracts with students. Specifically you were found to have violated the following: Administrative Policv· Sexual Harassment Stalkin~ Administrative Policy: Sexyal Assault and Relationship Violence Subd. 21. Persistent Violations. Persistent Violations means engaging in repeated conduct or action in violation of this Code. As a result of these violations, you are being offered the following sanctions to resolve this matter informally: EXPULSION: Effective immediately your University of Minnesota studentship will be ended with resultant loss of all student rights and privileges. A disciplinary hold will be placed on your record. The hold will prever1t you from registering at the University and from obtaining your records through routine channels. Driven to Discovers~· Both you and the reporting student are being notified of this outcome at the same time. Each party has the option to request a formal hearing by the Student Sexual Misconduct Subcommittee (SSMS) if the outcome is unacceptable. If I have not heard from either party within five business days (by December 20, 2016) of sending this letter, then the decision will stand. If you have any questions about this matter, please make an appointment to see me. You can reach me by calling (612) 624-6073. Sincerely, Sharon Dzik Director CC: Mark Coyle, Department of Athletics Tina Marisam, Equal Opportunity and Affirmative Action Julie Manning, Department of Athletics UNIVERSITY OF MINNESOTA Office of Equal Opporlttlllty and A.fflmmtlve Act/ott Office for Equity and Diversity 1\vln C/tfes C(lmpus 274 McNamaraAlttmni Canter :HJO Oak Street S.E. Minneapolis, MN 55455 Office: 612-624-9547 F'm: 612-624-5223 https:lldiver,rity.umn.edu/eaaa/ Email: (l()no@umn.edu December 7, 2016 Sharon Dzik, Director Office of Student Conduct and Academic Integrity (sent via Maxient] Re: Case number: 7360 Reporting student: Accused students: RS A1 A2 A3 A4 A5 A6 A7 AS A9 A10 A11 A12 Dear Ms. Dzik: The University's Office of Equal Opportunity and Affirmative Action ("EOAA") has completed its investigation of RS . report that she was sexually assaulted and sexually harassed by numerous students in apartment B in the Radius at 15th apartment complex ("Radius") between approximately 3:15am and 4:20am on ~eptember 2, 2016. Given RS rep01t that she cannot identify all of the men who engaged in this sexual misconduct, we included in the group of "accused students" all students about whom there is evidence that they were present in apartment B dw·ing the relevant time period. EOAA investigated to determine whether any of the accused students, conduct violated the Administrative Policy: Sexual Harassment, the sexual assault portion of the Administrative Policy: Sexual As.~ault; Stalking and Relationship Violence and/or related provisions of the Board of Regents Policy: Student Conduct Code. This letter proceeds as follows: Relevant Policies ..................................................................................................................... ,....... 2 Standard of Evidence ...................................................................................................................... 3 Driven to DiscoversM 1 Summary of Evidence Collected .................................................................................................... 3 RS Allegations .......................................................................................................................... 4 RS Com1nunications About Relevant Events ......................................................................... 14 Description of Apartment B ......................................................................... ............................. 16 Empire Messaging Group .................................. ,...................... ,................................................... 16 Evidence Related to RS Phone ............................................................................................... 17 Credibility of the Parties ............................................................................................................... 18 Finding on Incapacitation ............................................................................................................. 20 Evidence, Analyses and Conclusions Related to Each Accused Student ..................................... 20 I. ll. Ill. IV. V. VI. vn. Vlll. rx. X. XL XU. XIU. A2 ................................................................,... _.............................................................. 21 A6 ........................................................................................................................... 31 A10 A4 A1 .......................................................................................................... .................. 36 ............................................................................................................................... 39 ..................................................................................................................................... 46 A5 ................................................................................................................................. 53 A12 ...................................................................................................................... 60 A7 ................................................ ........................................................................... ... 64 A3 ..................................................................................................................................... 66 A8 ...........................................•., ...... ,.... ,.............. ,................... ,............... ," ............... ,. 70 A11 ............................................................................................................................... 73 A9 .......................................................................................................................... 77 Summary ofFindings ................................................................................................................. 79 Conclusion ........................ ,........................................................................................................... 80 REL.EV ANT POLICIES Sexual Assault The University's Administrative Policy: Sexual Assault, Stalking and Relationship Violence defines sexual assault as "[a]ctual, attempted or threatened sexual contact with another person without that pe1·son,s affirmative consent." Affirmative consent is an "[i]nformed, freely and affirmatively communicated willingness to patticipate in sexual activity that is expressed by clear and unambiguous words o.r actions." Clear and unambiguous words or actions are those that are freely and actively given by informed individuals and that a reasonable person in the circumstances would believe communicate a willingness to pruticipate in a mutually agreed upon sexual activity. Sexual Harassment The University's Administrative Policy: Sexual Harassment defines sexual harassment as "[u]nwelcome sexual advances, requests for sexual favors, and/or other verbal or physical conduct of a sexual nature when: (1) [s]ubmission to such conduct is made either explicitly or implicitly a te1m or condition of an individual's employment or academic advancement in. any 2 University activity or program; (2) [s]ubmission to or rejection of such conduct by an individual is used as the basis of employment or academic decisions affecting this individual in any University activity or probrram; or (3) [s]uch conduct has the purpose or effect ofumeasonably interfering w.ith an individuaPs work or academic performance or creating an intimidating, hostile, or offensive work or academic environment in any University activity of program." STANDARD OF EVIDENCE EOAA determines whether sex\1al assault or harassment occurred using a preponderance of the evidence standard. In other words, EOAA determines whether it is more likely than not that the alleged sexual assault or harassment occtrrred. SUMMARY OF EVIDENCE COLLECTED EOAA collected infotmation from the following sources. 1. Interviews: EOAA conducted interviews with RS the 12 accused students and 16 other students who were identified as potentially having relevant information. 2. Electronic messages: EOAA reviewed electronic messages to and from RS related to the events that occurred on September 2 in the Radius. EOAA also reviewed electronic messages sent on September 1~2 to the Empire messaging gro·1.1p, which consists of first-year members of the University's football team. 3. Police investigation materials: EOAA reviewed a redacted version of the Minneapolis Police Department's Case Report and Supplements related to RS allegations ("Police Case Report"). The University requested all notes~ docwnents, recordings, videos and other information from the Hennepin County Police 'Department investigation. However, the Hennepin County Attorney's office did not share this evidence with the University. 4. Radius security camera footage: EOAA pl'omptly requested security camera fDotage from the Radius after receiving RS report on September 23. However, the Radius had already recorded over the relevant footage at the time ofEOAA's request. According to the Police Case Report, the police reviewed the Radius security camera footage and found nothing of evidentiary value. 5. Videos: EOAA reviewed two videos taken in the Radius on September 2. The first is an approximately four-second video showing RS , A2 and a University football recruit on a couch in apattment A . The second is an eight-second video showing RS and the recruit on a bed in aprutment B . In addition, EOAA is aware of, but was unable to obtain, a third approximately ninety-second video showing A2 RS and the recruit engaged in sexual contact in apartment B . 6. Photographs: EOAA reviewed two photographs taken in the Radius on September 2. The first depicts the above-mentioned recruit with his shht off and both middle fingers raised. A2 sent this photograph to first-year football players sometime between 3:05am and 3 3:25am on September 2. The second photograph depicts A2 on a couch in apartment A at 3:05am. RS RS RS '• the football recruit and ALLEGATIONS reported the following: Background On Thursday, September 1, RS the first University football game of the season. After the game, RS returned to her apartment in the Radius apartment building with her two roommates. They spent approximately 30 minutes getting l'eady to go out. During that time, RS took 4-5 shots of 100-proof vodka. RS had not dnmk alcohol in several months and was dehydrated from so the alcohol impacted her more than she had intended. She became "very drunk to a level she doesn't reach often." However, she does not believe that she was so drunk that she was stumbling or falling down. RS does not believe that she had any additional alcohol that night. RS left her apartment around 12:30am on September 2. She first went to a party at the Venue apartment building. RS declined to take shots of hard alcohol at this pa1ty because she was already feeling drunk. Around 2:00am, she and approximately eight other women and two football players·went to the Radius apartment building. Upon entering the Radius, · RS group encmmtered a large group of football players in the first floor hallway. RS group went with some of these football players into apartment A where foul' football players live. RS and her friends spent some time in room A , and also went to other gatherings in football players' rooms on the third floor and in room 605. However, RS group of il:iends ultimately returned to room A A2 and the recruit' After returning to room A , RS spoke with A2 and the recruit. RS had never met either man before that night. At the time, RS believed that they were both University football players. (She later learned that the recruit was a high school student who was visiting the team as a possible recruit.) RS provided a photograph taken at 3:05am showing her, A2 and the recruit partially lying down on a couch in apartment A . RS is between A2 and the recruit. TI1e recruit's head appears to be resting on RS shoulder, A2 and the recruit flirted with RS .. They began discussing that apartments in the Radius have different floor plans. A2 asked whether RS wanted to' see his apartment on the fifth floor. RS had her period at the time, was wearing a tampon and did not plan to engage in any sexual.activity. She felt that she would be safe going to A2 room given that she was going 1 "The recruit" refers to a University football recruit who was visiting the University on September 1·2, anp with whom RS had sexual contact in apartment B • We attempted to contact the recruit to gather information for this inv.est!gntion, but he did not respond. We are not currently investigating the recruit's sexual contact with RS because he is not a current University member. · 4 with two men rather than with a single man. with the two men and would be right back. RS told her friend Witness-1 that she was going and the recruit entered apartment B . (Based on time-stamped photographs and electronic messages, it appears that RS . was in apartment B from approximately 3:15am until A2 4:20am.2) The apartment was quiet and RS asked whether anyone was there. · answered that one roommate was sleeping and that another roommate was having sex with his girlfriend in one of the bedrooms. A2 and the recruit tool< RS into a bedroom and shut the door, without showing her any other part of the apartment. RS immediately felt uncomfortable that ' A2 1ad shut the bedroom door, so she asked to use the bathroom. RS , A2 A2 led RS to a bathroom by the front door. RS stayed in the bathroom for a while. She began "to panic." She still felt very drunk. She removed her tampon while using the bathroom. She did not have another tampon with her, but her period was light ru.1.d she planned to return to her apartment shortly so she thought she would be okay not wearing one. She was trying to make a plan about how to leave the situation when one of the men knocked on the door. A2 then said she was taking too long and needed to come out of the bathroom. When RS opened the door, A2 was standing between her and the front door in a way that made her A2 walked behind feel unable to leave. RS felt "kind of shocked" and did not resist. RS back into the bedroom. When RS re~ntered the bedroom, the recruit had already taken some of his clothes off. RS recalls the following occmTences but not the exact order in which they took place: ·A2 and the recruit repeatedly tried to unzip RS : bodysuit that bad a zipper that could unzip to about A2 kept saying that he wanted to figure out RS bodysuit. RS her belly button. repeatedly zipped it back up and said no, but in a "light-hearted manner." Both men repeatedly said, "come on." RS felt overpowered and repeatedly asked what they were doing. The recruit and A2 took their clothes off. They may have put on condoms. RS remained fully clothed. She felt confused, isolated and trapped. RS telt that she was in a situation that she did not want to be in. However, she did not communicate this to 1 A2 and the' recruit at that time. RS felt like she could not stop what was happening. She telt that the men would either ignore any resistance or would make her feel bad about it or "cause a scene., - A2 unzipped her body suit and unbuttoned her shorts. The recruit waited nearby awkwardly. RS does not recall exactly how her clothes came off after that point. RS next remembers • A2 laying or sitting on the ·edge of the bed. He either used words ol' gestured for RS t9 give him oral sex. RS did not want to do this, but felt com.pelled. RS bent over the bed and began giving A2 oral sex. The recruit began having vaginal sex with RS from behind her. RS kept taking her mouth away from A2 penis. He repeatedly responded with something like, "What are you doing? Keep going." At this point, RS was just trying to get the men to ejaculat7 so that she could leave. However, neither man could 2 A time-stamped photograph shows RS in apartment A with the recruit and A2 at 3:05am. While in apartment B with RS and the recruit, A2 sent 11 message to the Empire group at 3:25am. A2 sent a message to the Empire group stating that RS was currently having sex with multiple rpen at 4:11am. Shortly after returning to her apartment in the Radius, RS sent a message to her friend Witness-! at 4:28am. · 5 ejaculate in this position. A2 left the bedroom and shut the door. RS believes that A2 instructed her not to come out until she had sex with the recmit, although RS does not recall the exact words used. A2 shut the bedroom door with RS and the recruit inside. The recruit laid down on the bed and motioned for RS to give him oral sex. He was not wearing a condom. RS was focused on the strong and bad smell of the recruit's penis. The recruit repeatedly encouraged RS to "come on·. " RS recalls that the recruit might have tried vaginal sex again. The recruit eventually said that he was too drunk and was not going to ejaculate. RS remembers feeling anxious t.hat it was taking so long because she was trying to get out of the situation. A2 reentered the bedroom and the recruit sta1ted to get dressed. A2 apperu·ed disappointed that the recruit did not ejaculate. A2 referred to the recruit as a "recruit." RS asked what A2 meant by "recruit.~> · A2 explained that the recruit was a football recruit visiting for the weekend. RS was taken aback and asked the recruit if he was in high schoo~. The recruit said yes and that he was not going to come to the University because "it was too fucked up." RS did not see the recruit again. RS also recalled that 1 A2 returned and had vaginal intercourse with her at some point. She remembers both the recruit and · A2 wearing condoms that had yellow/gold wrappers during vaginal intercourse. At some point that night, A2 . and the recruit used RS phone; A2 followed RS on Instagtam and the recruit added himself to RS Snapchat. RS reported that she did not want to engage in sexual activity with A2 ::>r the recruit, but felt pressured to do so and afraid to resist. RS reported that she did not know that A2 had taken a video of her having sex with him and the recruit until she was later told by the district attorney. The next day, RS recalled · · A2 name and participation in the above·described sexual activity. RS · General Recollections As discussed above, RS specifically recalls having sex with the recruit and A2 shortly after she entered apartment 8 . As discussed below, RS also speCifically recalls having sexual contact with four other men while in apartment 8 A6 ., A4 A1 and A5 ln. addition, RS recalls that numerous other men who she is unable to identify had sex with her. RS believes that a total of ten to twenty men had sex with her in A2 bedroom, RS cannot provide an exact number because she has limited memory of that tune period and because she .is unclear whether some of the men had multiple sexual encounters with her. RS recalls that some of these men held her down by her shoulders during sex. RS also ·recalls that, on multiple occasions, more than one man had sex with her at once. RS ' cannot remember details about these ~ituations or the identitjes of the individuals involved. However, based on reports from individuals present in aprutment A that night, RS believes that some of the men may have come to aprutment 8 from the gathering in apartment A 3 3 According to Witness-5, at some point after RS left apartment A , Witness-5 saw some of the men in apartment A repeatedly enter and exit a bedroom and become excited. Five or six men huddled around a cellphone. 6 At times during the sexual enc01mters that occuned after A2 and the recruit left the bedroom, RS became aware that other men were inside the bedroom and clustered around the open doorway of the bedroom. There were initially around five onlookers, but the crowd grew as time went on. RS did not recognize these men at the time and still cannot identify most of them. Several of the men had their phones out and may have been taking photos or videos. The onlookers were chanting, laughing, cheering and jostling for a position in the line to have sex with RS RS . remembers that the men were arguing over whose "turn" it was to have sex with her. RS does not recall the onlookers speaking much to het. Sometimes the crowd would open the bedroom dool' and watch men have sex with RS '· Other times the bedroom door was shut. Sometimes RS would be alone in the room with one man. Other times, other people would also be in the room. RS : repeatedly wrapped herself in a blanket to try to shield her body fi·om the men, who she did not want to see her naked. RS does not recall ever being in the bedroom alone; there were always men in the bedroom or at the doorway to the bedroom. RS became increasingly confused and repeatedly asked where all of the people were coming from. She repeatedly yelled at the crowd to stop sending people in the bedroom. She repeatedly yelled, "I can't handle this many people" and "1 don' t want this to happen." She yelled several times that she hated the onlookers, to which they laughed and someone responded, "ha ha, why?" At one point, RS asked the onlookers to "get A2 ., because she thought that he would help her. In response, someone said that "he has had his turn and you ha\le a lot more to go." RS recalls that he'r clothes and phone were in the corner of the room next to a white plastic shelf. They were too far away for RS to reach and RS did not want to expose her body to get them. She recalls asking for her clothes. At one point, someone responded that she "had a lot more to do" before sh~ could get dressed. She recalls that she tried to retrieve her clothes on multiple occasions, and then someone took the clothes from her and tossed them back into the corner. Other times, there were men betwee11 her and her clothes and she did not feel that she could safely leave the bed to retrieve them. After her sexual contact with /!\2 and the recruit, RS told evety man who !tied to have sex with her that she did not want to engage in sexual activity with them. She felt unable to leave the situation because there were so many guys by the door and she could not get her clothes. At times, she believes that she was being held down or that her fear was preventing her from moving. RS recalls focusing on the ceiling and on the television (which was tumed. off), and feeling unaware or confused about what was happening. RS recalls that, on multiple occasions, she suddenly realized what was happening to her and tried to push the men off of her. She remembers pushing men's stomachs in: an attempt to get them off of her. Witncss-5 believes that the party in apartment A dled down soon afterwards. According to Witness-3, A 1 and other men left apartment A shortly after A1 ·eceived a Facetitne call about someone being A4 reported that men in apartment A discussed A2 message that he and the recruit were in f!\2 apartment with the woman, and talked about going to /!\2 apartment. 7 A6 AB entered the bedroom while A2 and RS were in the room. RS had never met A6 in person before. However, during the previous week, they had matched on Tinder an online application that is often used for dating and meeting new people. After they matched, A6 had invited RS to his room but RS had not responded to the invitation. RS had messaged A6 through Tinder earlier that evening because she was hoping to learn where the football parties were happening. A6 said he had '~heard the conunotion" and "wanted to see Upon entering the bedroom, what RS was all about." A6 and RS briefly talked about having matched on Tinder. At that time, RS was sitting on the bed wrapped up in a blanket. Her clothes were too far A6 was standing on the long side of the bed. away to grab without exposing her body. RS recalls that he began bending over her and she felt completely overpowered. At some point before or after this conversation about Tinder, A2 told A6 to leave or take RS to his own bedroom. A2 said that he did not "want this all happening in his room." A6 told A2 to calm down and "shut the door and leave." A2 . left the room. RS did not see A2 again until later when he helped her to leave the apartment. RS and A6 were then alone in the bedroom with the door shut. RS told A6 that A6 responded, "you are too sexy. I need my she did not understand what was going on. turn." A6 grabbed her hair and forced her to give him oral sex. RS ' repeatedly told A6 that she was going to thmw up. also had vaginal sex with RS :, although RS does not recall exactly how it began. A6 was penetrating her vaginally, RS ' felt pain and began staring intently at the ceiling and wall. ,While sex with A2 and fue recmit had been uncomfortable, A6 vaginal penetration was forceful and rough and caused RS pain. RS repeatedly said that they needed to stop because it hurt her. A6 either did not respond or said that he was almost finished. RS also remembers trying to push A6 off of her. While A6 was penetrating her, RS became confused and disoriented. At some point, she recalls that other men were knocking and opening the door and that A6 repeatedly told them to "get out" and that he needed to "finish" first. A6 While After A6 finished having sex with RS :, another man entered the room. RS . believes that it might have been A10 '· Both men eventually left the bedroom and another man or men entered. The next day, RS . recalled A6 name and participatio11 in the above-described sexual activity. A10 At some point, A10 . entered the bedroon1 and introduced himself. RS . responded that she would probably not xemember his name since there were several men present in Rooms A and B with "K" names, referring to A7 and: A4 A10 . responded that it was probably good if she d~d not remember his name. RS does not specifically recall having any sexual 8 contact with A 10 :. RS later recalled A4 name and confirmed that he was the individual who she had met i~ apartment B by viewing his online football photograph. A4 At some point near the begim1ing of her time in apartment B , A4 entered the bedroom. had wrapped herself in a blanket to cover her body. The bedroom lights were turned on. Around that time, RS yelled to the crowd of onlookers to get 1 A2 as she thought he might help her. Men in the crowd told her that A2 had left. RS repeatedly told the onlookers that she hated them. She repeatedly told them to stop sending people into the room and that she did not want any more people. RS repeatedly asked where are all these people coming from. RS believes that she communicated that she needed help, but the onlookers continued to laugh and discuss who would have sex with RS next. RS RS repeatedly told A4 that she did not want to do anything sexual with him. A4 repeatedly told RS that it was not fair and that he did not understand why she would have sex with everyone but him. He took off his pants. RS also recalls that his shirt was of£ A4 said that she could "only do a blowjob'' and that it was "no big deal." A4 grabbed RS head, led it to his penis and told her something like it would be over soon. RS = felt that she had no choice but to comply, as she felt unable to leave. RS did not initiate or willingly engage in any sexual activity with A4 RS does not remember exactly how this sexual contact with A4 ended. RS later recalled A4 name and confirmed that he was the individual who engaged in this conduct by viewing his onllne football photograph. A12 At some point> A12 entered the bedroom. The lights were on and few people, if any, were in the room at this point. A12 told RS to "do the same thing that A4 got." RS repeatedly told him no. She repeatedly told him that she did not want to have sex with so many people. RS cannot recall whether she had any sexual contact with A12 :. However, she does remember A12 standing in front of her with his shht off. The next day, RS identified A12 as the individual who engaged in this conduct his online football ~particularly identifiable because of his - - - - than many of the other men who were present. A1 and A5 Toward the end of RS time in apattment B , A1 A5 and two other men were in the bedroom. RS had tightly wrapped herself in the blanket on the bed and the bedroom light was on. RS wanted to leave but was too scared. Among other things, she feared that if she tried to leave, the men would realize the severity of what had happened lto her and harm her further or refuse to let her loave. 9 A1 girl." RS had met A1 on two prior occasions because ·Since RS knew A1 she felt some t'elief because she to the situation. RS asked how long she had been in the room and someone answered that it had been around 50 minutes. While RS cannot recall many events that occurred in the bedroom, a few events brought her back to reality. Seeing A1 who she had met before, was one of those times when she was functioning better mentally and that she can remember fairly clearly, At this point, the men were sitting on the bed and talking with the lights on. RS felt a bit safer. There was no one between RS and her belongings and she felt able to retrieve her phone for the .first time. Just as RS unlocked her phone, A1 took it from her and said that he was adding himself as a Snapchat ii'iend. A1 then gave the phone to A5 At that point, or some other point, A5 added himself to RS Instagram account. Then, A5 or someone else must have returned RS phone to the floor near her pile of clothes because that is where she next saw it when she was finally able to get dressed. RS does not believe that the men present took her phone because they were worried that she would call for help. RS believes that, at that point, the men may have thought that their conduct was okay. I All of a sudden, A1 told someone to turn off the bedroom light and shut the door, The next thing RS . knew, A1 A5 and another unknown man were jostling to shove their penises into RS mouth. They took turns and pushed each other out ofthe way. They were forceful. At some point, A1 was trying to put his penis into her mouth from the left side, another man was doin·g the same from the right side and A5 was above this other man on the tight side masturbating above RS head. At the same time, another person who RS cannot identify was having vaginal sex with her. During much of this encounter, RS could not talk because one ofthe men's penises was in her mouth. However, at other times, RS . was able to say that it hurt and she wanted to stop. The men repeatedly responded by flipping her into a different position, telling her it would be over soon and being more forceful. RS believed that she may have tTied to shove the men away from her. Then, A1 took control and began having fast, rough and hard vaginal sex with RS :, RS . found it very painful. RS repeatedly told A1 to stop. He responded by saying "be quiet" or "shush" or something similar and flipping her to another position and becoming more forceful. A1 held RS down by her shoulders and upper arms when he was on top of her during vaginal sex. At some point) he flipped her onto her hands and knees and had vaginal sex with her from behind her. RS believes that A5 and/or other men may have remained in the bedroom. In particular, she recalls someone standing in the corner near her clothes. At some point, A1 and the two unknown men left the room. A5 stayed bel1ind. A5 forced RS to give him oral sex. He controlled RS head by pulling on her hair. RS remembers thinking that her hair was going to rip out of her head. A5 ejaculated from oral sex and RS remembers that there was semen all over her and his hands. 10 Then, A 5 began having vaginal sex with RS He was on top of RS :. RS tTied to push A5 off of her. In doing so, RS lipped A5 condom with her fingernails. A5 said something like, "Oh my god you ripped the condom. Damn, you've got some sharp nails." A5 shoved his penis back into RS vagina with the ripped condom still on and resumed rough sexual intercourse. At some point, A5 had sex with RS from behind her, with RS . on her hands and knees. A5 ejaculated again. RS was covered with semen, which she tried to wipe onto A5 body. A5 then sat up or kneeled in the bed with a look of shock on his face. At this point, the bedroom light was on. RS watched : A5 tace as he looked around the room. He began swearing under his breath as he looked at the mess in A2 bedroom. The approximately two·foot strip of floor between the bed and television stand was covered with yellow/gold condom wrappers and used condoms. There was a pile of around 12 used condoms on top of a white plastic set of drawers next to the television stand. Semen was dripping down the drawers. RS was shocked and horrified to see so many used condoms and condom wrappers. There were far more than ten condom wrappers. She could only remember bits and pieces of what had just happened. She had no sense of how long she had been in A2 bedroom or of how many men had had sex with her. She remembers wondering, oh my god, how can I not remembet what just happened. A5 left the bed and began cleaning up the condoms and condom wrappers from the bedroom RS saw that A5 was floor. He looked concerned and kept muttering, ''ob my god." distracted with cleaning and she rett.ieved her clothes from beneath condom wrappers on the floor and began to get dressed. The next day, RS recalled A1 and A5 names and participation in the above-described sexual activity. A2 Returns and RS Leaves A2 entered the bedroom when RS was nearly dressed. A2 told A5 to leave the A2 led RS to the bedroom. A5 responded that he was only trying to clean the mess. front door. RS remembers that men were in the apartment hallway as she left, but she does not kl1ow who they were. A2 and RS spoke briefly in the hallway outside of the apa1tment. A2 asked RS whether she was okay. RS was confused and "in a daze.'' She did not realize the extent of what had happened. She replied, "I don't know what you mean by okay ." A2 responded, "I am the one who usually has to save gjrls from this situation and I wanted to know whether yo'll were olcay." RS was confused about what had happened and kept repeating, "I don't know." A2 also asked whether RS would tell anyone what had happened. She responded that she would not. Based on her text messages described previously, RS left apartment B around 4:20am. Other Accused Students RS repotted the following information about A7 ., AS '• A 11 , A3 and 11 A9 - RS thinks that A7 introduced himself to her both in apartment A and in bedroom. RS thinks that, when she saw A7 in A2 bedroom, A7 said that they had already met in his apartment downstairs. She does not recall whether A7 engaged in any sexual activity with her. A7 A2 AS - RS remembers AS . very clearly. AS . stood outside of the bedroom door for much of the time that RS was in A2 bedroom. Evety time the door was open, RS saw him laughing and cheering the other men on. She does not recall whether he engaged in any sexual activity with her. RS identified A8 :through his online photograph. A 11 . - After viewing A11 online photograph, RS reported ihat he looks very familiar and was very likely part of the crowd of onlookers. She cannot recall whether he also engaged in any sexual activity with her. . A3 - RS does not specifically recall seeing A3 in A2 apa1tment, but believes that it was possible that he was there. She does not rccaU whether he engaged in any sexual activity with her. A9 - On September 2, RS recalled the name A9 from the prior night. She viewed the online football photograph of A9 and found that he looked familiar. For these reasons, she believes that he was present in apartment B with her that night. However, she does not specifically recall him being in apartment B or whether he engaged in any sexual activity with her. After RS · Left Apartment B : Early morning on September 2 RS left • A2 apartment by herself and immediately started crying. She returned to her room on the 6th floor of the Radius apartment building. She was confused. She realized that she had no idea what had happened to her, except that men had had sex with her, she had been violated and she felt physical pain. She could not recall how many men had had sex with her Ol' who they were. Soon after retuming to her apartment, RS scribbled the following messages on three pieces of paper, which she provided to EOAA: Page 1 Hello it's after the l st game I need help. A6 AS A1 Kalmontay or something A2 - Denonte Idk ·- help Page2 Help I'm scat·ed & hate everyone I need help this isn't okay Page 3 12 (Something unintelligible.) Where is eve1yone PS Help Who are they Also soon after returning to her apartment, RS exchanged messages with her friend Witness-! at 4:28am on September 2. RS provided these messages to EOAA. Among other things) RS wrote to Witness-! that she had been in a hon1ble and scary situation involving twelve Black men, that she did not really know what had bappened, and that she did not know whether she had been raped. RS and Witness~! agreed that they would talk more about wl1at had happened in the morning. RS received an Instagram message from A2 at 4:41am. RS provided the ensuing message exchanges to EOAA. In the course of messages exchanged by RS and • A2 A2 said that he wanted to make sure that RS was "good" and asked to talk to her. RS expressed confusion about what A2 wan.ted to discuss. RS ultimately agreed to talk with A2 at his room after he told her that his roommates had gone to sleep and the visitors had left his apartment. RS reported that she was confused and agreed to meet with A2 because she hoped he would tell her what had happened to her. RS met ' A2 in the hallway outside of his A2 asked her whether she was okay and she responded that apartment shortly after 4:4lam. A2 asked RS whether she would tell anyone and RS responded that she did not know. she would not. RS reported that their meeting was very brief At 4:59am on September 2, A5 sent an Instagram message to RS asking for her phone number so that he could text her. Given her experience with A5 that night, RS was confused about his message. However, RS hoped that A5 would give her some information about what had happened to her in apartment 8 ·. · RS responded, "Oh hi. I know who you are." A5 responded, "Lol you don't want me texting you huh.'' RS did not respond or give A5 her phone number. RS provided these messages to EOAA. After RS · Left Apartment 8 : Afternoon and Evening on September 2 Witness~! visited RS apartment during the day of September 2. RS told Witness-1 and RS roommate Witness-2 generally what had happened to her, but RS could not recall many details. Later that day, RS also told friend Witness~3 and another friend4 what she could remember about what had happened to her. RS reported that she felt "very sore" i:n her pelvic region that day and for several days afterwards. After talking on the phone with her sister, RS : drove herself to a hospital in for a forensic examination by a sexual assault nurse examiner. She drove to she knew she had health insurance coverage there. RS reported that the medical professional who conducted her exam found some in'itation on her breast, but was unsure how or when that 4 EOAA requested a meeting with this individual to gather information for this investigation. However, she did not · respond to IUultiple requests. 13 occurred. The medical professional also found "some kind of injury" 011 her vagina, which could have happened fi:om non~sexual activity. RS reported that the medical professional did not find anything "significant." EOAA requested the results of RS forensic examination, but RS did not provide EOAA with these results, On the afternoon or evening of September 2, RS exchanged additional Instagram messages with A2 RS reported that she reached out to A2 in an attempt to find out what had happened on the prior night. RS provided these messages to EOAA. In these messages, RS asked t A2 to tell her what happened on the previous night, how many men had been involved and how all of those 1nen Iaiew to come to room 8 . Among other things, RS wrote: "I'm not meaning to com·e at you or anything, it>s just you seemed like the most logical one of the bunch and I need to know this for peace of mind." responded that he and another man had sex with her and that he then left the apartment. wrote that he sent a group message telling the new players on the team that RS and the recruit had sex. A2 did not answer RS question about how many men were involved in sexual interactions with RS '· A2 wrote that there were people in his apartment when he returned, but that he did not know how those people wound up in his apartment. A2 also wrote, "I know that shit was not cool I had to wash all my shit I ain't even sleep in there last night." A2 A2 On September 2, football team member WitnessA sent RS a message asking what was going on that night RS asked whether Witness-4 had heard about any events involving her in the Radius on the previous night. Witness-4 said that he "heard something about a gil'l" but that it was "a girl in the freshman class." (Witness-4 also told EOAA that the situation that he was speaking about involved a first-year student and not RS :.) RS RS COMMUNICATIONS ABOUT RELEVANT EVENTS communications with her[riends On September 2, RS told several friends about what had happened during the previous night. RS first spoke with her roommate Witness-2 and friend Witness~ l. Then, RS and Witness-1 visited their friend Witness-3 in the hope that Witness-3 may have learned some information about what happened to RS from Witness-3's ex-boyfriend ~ A1 According to Witness-2, RS began crying and said that something really bad had happened to RS : said that she had gone to an apartment with two men, All of a sudden, there were a ton of football players in the room and niore at the door. RS said that she could not move or get up and that more and more men kept coming in the room. RS said that the floor was covered in condom wrappers. At that point, RS knew that A1 had been involved but could not identify any of the other men. RS showed Witness-2 a note that she had written when she returned from aparuuent B ·that looked like a bunch of scribbled names. het· during the previous night. However, RS did not remember many detaiLs. 14 According to Witness~ l, RS was confused and not exactly sure what had happened to her. RS said somethjng like, "I think that 1 was raped but I am not really sure." Witness-1 advised RS not to shower in case she wanted to get a rape examination. According to Witness~3, RS said that she went upstairs with two men and then many more men entered the room. RS "made it seem like [it] started out comfortable with two guys and then it got overwhelming.,, RS also said that she did not want to go to the police "because she felt it was an in-between situation, and she would feel bad for the men if she told the police. RS · communications to the police On September 3, RS . made a report to the M1nneapo1is Police Department. According to the A 1 AS and the recntit5 had sex with her. She police summary, RS reported that A2 also reported that other men had sex with her. At this point, RS recalled some inforn1ation A2 the recruit and her initial conversation with A6 about her sexual contact with The information that RS pro VIdea to the police on September 3 is generally consistent with bel' later .reports to the police and EOAA. However, at that time, her recollection of what occurred duriog and after hel' sexual encounter with A6 was very limited. On September 6, a police officer interviewed RS for the second time. According to the police officer's non-verbatim synopsis, RS memory remained sparse. Among other things, the A4 as another man who may have been in the synopsis stated that: (1) RS identified bedroom in apartment B a11d who may have had sexual contact with her; and (2) RS reported "that the sexual contact between h.er and A2 and [the recruit} may have been consensual, but A6 ., A1 and AS was not consensual (quotation believes that the sexual contact with 6 . marks omitted)." RS reported to EOAA that the police led her to believe that her sexual activity with A2 and the recruit was consensual because she never directly said "no" and because she was not held at gunpoint or under some similar threat. However, she reported to EOAA that she never consented to sex with A2 and the recruit, that she felt pressured and scared, and that she believed that she needed to have.sex with A2 and the recruit in order to leave the situation. On September 14, RS wrote and provided the police with an eleven~page narrative about the A2 bedroqrn. In tlris narrative, RS provided significantJy more events that occurred in detail than in her prior reports to the police, particularly about the events that occun-ed during A6 alleged assault. For the first time, RS also identified A12 :, A7 and and after A10 as other men who had been present in A2 bedroom. In particular, in one section, she identified A10 as the last man to have sex with her. However, she still could not recall many details of her time in A2 bedroom. In some cases, she remembered only snapshots of people and sexual positions. 5 The recruit's name was redacted from the Police Case Report that EOAA received. However, the context of the report made it clear when a redacted name referred to the recruit. 6 According to the police officer's synopsis, in one of her two police interviews, RS stated that she sat on the couch next to A1 and the rec111it in apartment A . . RS reported to EOAA that she told the police, or intended to tell tho police, that she sat next to A2 and the recruit. · 15 RS ·communications to the EOAA On September 23, RS first repmted to EOAA that she had been sexually assaulted. 7 RS verbal reports to EOAA are generally consistent with her September 14 written account. However, there are a few differences. For example, in. her September 14 written account, RS said that A12 "made [her) do the 'same thing that A4 got."' RS clarified to EOAA that A12 requested the "same thing that A4 got," but that she does not recall whether she ultimately had sexual contact with A 12 :. Moreover, on or around October 24, RS . recalled that she had mistakenly identified the last man to have sex with her as A10 ·. As RS recollection of her time in A2 bedroom improved over time, she realized that it was A5 and not A10 :, who last had sex with her. RS informed EOAA and the court fi·om which she had requested an order for protection against A10 . about her mistake. 8 RS · memory believes that her inability to clearly remember all of the events in ·A2 bedroom (and her slow recovery of some additional memories) resulted largely from her expetience of shock, pain and fear, rather than from intoxication. While RS reported that she was "really drunk'' when she left her apartment around midnight, she felt less intoxicated while in A2 bedroom. She remembers the initial interactions with A2 and the recruit fairly clearly, but became disoriented and confused during and after her sexual encounter with A6 RS DESCRIPTION OF APARTMENT 8 RS and the accused students described the layout of apartment 8 as follows: Upon walking in the apartment's front door, one comes into a small entryway. Then one can turn left or right down a hallway or walk nearly straight ahead into A2 bedroom. By turning left, one would access A6 bedroom. By turning right, one would pass a bathroom on the right side of the hallway, pass A11 bedroom on the left side of the hallway and eventually entet the living room and kitchen at·ea at the end of the hallway. In other words, three bedrooms line the side of the hallway opposite the front door - when facing the bedrooms, A11 bedroom is to the right of the front door, A2 bedroom is across the hallway from the front door and A6 bedroom is to the left of the front door. Conversely, A8 ; bedroom is on the front door side of the apartment near the living room/kitchen area. EMPIRE MESSAGING GROUP The Empire group includes first-year members of the University's football team, including eight of the twelve accused students. The four accused students not included in the Empire group are second-year students A5 A1 A4 and A9 ·. EOAA obtained messages sent to the Empire group after the first football g;ame. EOAA obtained the times at which some of these 7 EOAA first m~t with RS on September 23. reported that RS told him on September 6 that 20 members of the football team had sexually assaulted her. 8 The EOAA investigator attended the res.training order hearing, and found RS testimony to be largely cons.istent with her reports to EOAA. 16 messages were sent, but did not obtain this information for all of the messages. On the night after the [lrst football game, five of the accused students w.rote messages to the Empire groupA11 :, A2 , A3 , A12 and A6 The Empire group messages obtained by EOAA from that night primarily discuss the locations of parties and the group members' attempts to engage in sexual contact with women. For example, numerous messages discuss finding "hoes" and bringing them to parties. For example: • One Empire group member wrote, "Party at my crib 331 invite hoes!! • • A2 wrote, "I got 4 hoes where the party at'' and "Go to the rail hella hoes" A11 wrote, "i just told some hoes" Other messages discuss potential or actual sexual encounters with unidentified women. For example: • • • Accused student A 11 sent a message about an unidentified woman stating, "if she aint tryna fck imma be pissed." A11 later sent a joking message about an unidentified woman stating, "run her?" -· which generally refers to more than one man having sex with the same woman. A2 sent a message stating, "I'm sliding in some pussy rn lol" about an unidentified woman at l :35am. ("Rn" is an abbreviation for "right now." "Lol" is an abbreviation for "laughing out loud.") Other messages refer to RS :; • • • • At 3:17am, A2 sent a message referring to RS that stated, "Me and the recruit finna double team this bitch.'' ("Finna'' generally means "going to.") At 3:25am, A2 sent another message stating, "Lol we forreal going brazy lol." ("Brazy" generally means "crazy.,) A2 later messaged, "I took good videos." Finally, at 4:17am, A2 messaged, "Damn A10 • all 3 them n****s hitting rn." ("Hitting" generally means "having sex with." A2 used a l'acia} epithet in this message that we do not reproduce in full.) EVIDENCE RELATED TO RS PHONE Based on the following evidence, we find it likeJy that RS briefly had possession of her phone A2 bedroom. This likely occurred around the time that A6 left the while in A4 and A10 entered the bedroom. However, we do not find bedroom, and · A1 AS this evidence about RS , phone to be particularly relevant to our analysis or findings. • RS ·reported that she was able to retrieve her phone while A1 AS and two other men were in the bedroom with her. She reported that A1 took her phone soon after she unlocked it, said that he was adding himself as her Snapchat friend and then gave the phone to A5 She reported that she later found her phone on the floor near her clothes. 17 • • A6 reported that RS retrieved her phone after they had sex. A 10 ., A 1 and A5 each repotted that RS had her phone when they entered the room shortly thereafter. A 10 . reported that RS appeared to be scrolling tlu·ough her Instagrarn account. A1 repmted that RS used her phone's camera to add him as a Snapchat friend. CREDIUILITY OF THE PARTIES RS and the accused students reported divergent and conflicting accounts of the events that occurred in apartment B after the first football game. Among other things, we considered the following evidence and analyses when assessing the credibility of these accounts. Conflicting reports {tmong accused students The accused students provided EOAA with different information from one another about key and notable facts. At times> the accused students p.rovided information that contradicted their own reports to EOAA. Examples of these discrepancies are detailed in the individual accused student's sections below. These discrepancies within and between the accused students' accounts led EOAA to discount their credibility. Nevertheless, we found portions of the accused students' accounts to be credible when they were plausible, detailed, consistent with the accounts of other credible witnesses and/or included statements that were potentially contrary to their own interest, among other things. Accused students' efforts to conceal i1tjormation Some evidence indicates that the accused students deliberately attempted to jmpede the University>s fact-finding efforts. For example, evidence indicates that many accused students deleted relevant messages and videos from their phones upon learning that RS made a report to the police and/or EOAA. Specifically, eight accused students received relevant group messages from A2 However, none of these students had retained those messages on theit phone at the time of their EOAA interviews. One football team member (who is not a11 accused student) reported that he had encouraged team members to delete their Empire group messages ft·om September 1-2. TI1is suggests some degree of a collective, defensive effort to conceal re.levant evidence by the accused students and other members of the football team. It also appears likely that accused students engaged in a collective effort to conceal the identities of men who were present in apartment B , but who RS and EOAA have been unable to identify. During their h1terviews with EOAA, the accused students were generally only willing to identify individuals who were present in apartment B after the EOAA investigator demonstrated that this information had already been provided by other sources. Moreover, A10 volunteered the followi.ng comment about RS in his EOAA interview, "I wish she didn't remember my danm name." This comment suggests his understanding that EOAA would not have known about his presence in apartment B had RS been unable to identify him. This c.omment further suggests that A10 has this understanding because he and 18 other accused students have not disclosed the identities of others who were present in apartment 8 , but who RS and EOAA have been unable to identify. RS · credibility In assessing RS credibilicy, we considered that RS reported· infom1ation to EOAA that did not benefit her sexual misconduct allegations. For example, RS reported that she only initially resisted A2 and the recruit's sexual overtures in a "light-hearted" manner and also attempted to help them ejaculate faster so that she could leave the situation. RS provision of this infonnation (to the possible detriment of her sexual assault complaint) lends credibility to her account. We also considered that, despite the accused students' fl'equent lack of candor, in many cases one or more accused students corroborated portions of RS account. For example, RS distinctly l'ecalls that many men crowded around the bedroom door and turned on and off the light while other men had sex with her. All but one accused student denied taking part in or witnessing such a crowd of onlookers near the bedroom door. However, A12 reported that he and six other men gathered around the bedroom doorway "saying things" and turning on and offthe lights while RS was having sex with A5 Here, A12 report corroborates RS account (and further suggests a collective effort by the other accused students to deny this potentially sexually harassing activity). RS recollections of the events in AZ bedroom have become more detailed as time has passed. For the most part, we found her accounts to be relatively consistent over time, even though they generally increased in detail. We generally attribute the differences among RS accounts over time to her gradual recollection of what she found to be a very traumatic experience, rather than to a lack of care or truthfulness. On some occasions, RS recanted or clarified earlier reports that she had made. For example, RS recently reported that she had misidentified one accused student A10 - as being involved in a pru.1icular sexual encounter. when he was not. RS explained that she realized that the man involved in that sexual encounter had actually been A5 as time passed and her recollections became more detailed. (EOAA also found significant other evidence confirming RS recollection that A5 was the individual involved.) A10 , demonstrates that RS memory of the events in RS repott about her misidentification of A10 also demonstrates her willingness to admit that she initially remembered something incorrectly, despite the fact that such an admission could call her general credibility into question. We also found RS to carefully differentiate between men who she believe..'> may have been present in apartment 8 because they appear familiar and those men who she specifically l'ecalls being present. RS misidentification of apartment 8 may be faulty at times. However, We considered that RS at times behaved in ways that may appear contrary to how one might expect a sexual assault victim to behave. For example, RS reported the follo\\ring to EOAA: She returned. to apartment 8 to speak with A2 soon after the ~Ueged sexual misconduct 19 occurred in that same apa1tment. She did not consistently scream, fight or try to escape during and between the violent sexual assaults that she describes, and she engaged in what could appear to be casual conversation with some of the men in between these sexual encounters, such as speaking with A6 about their previous conversations over Tinder, telling A10 : that she probably would not remember his name and asking A1 and A5 how long she had been in the apartment. We do not find that these behaviors indicate that RS did not experience the sexual misconduct that she describes. Rather, we find that RS . conduct during the sexual encounters likely resulted from her shock, confusion and inability to focus because of the events she was A2 after leaving experiencing. We also find it likely that RS . communicated with apartment 8 in an attempt to determine what had happened to her, to normalize the situation and to regain control of the situation. RS still has significant gaps in her memory of the events in A2 bedroom, and these gaps ultimately prevent us from making policy violation findings in some instances. While we find RS account to be generally credible, there are also times where EOAA cannot definitively determine whether RS or one or more of the accused students' accounts are more likely accurate. Given the available evidence, it is not possible to reconcile all discrepancies between and among RS and. the accused students' accounts. However, based on the totality of the circumstances (including the apparent failure of each accused student to provide full and trnthful information, as described below) we generally find RS account to be more credible. FINDING ON INCAPACITATION We considered whether RS was incapacitated by alcohol during her time in apartment 8 . According to University policy, consent for sexual contact is not obtained where there is incapacitation due to the influence of alcohol. While in apartment B , RS felt intoxicated by the alcohol that she drank earlier in the night and her judgment was likely somewhat impaired. However, information from multiple sources (including from witnesses, RS herself and videos of RS taken that night) indicates that her alcohol consumption did not significantly impair her ability to co11trol her physical movements, her ability to communicate effectively or her awareness of her circumstances and surroundings. Based on this evidence, we find that RS ·was not incapacitated by alcohol under University policy. EVIDENCE, ANALYSES AND CONCLUSIONS RELATED TO EACH ACCUSED STUDENT 20 A2 I. Evidence gathered from 1. A2 AZ and others repmted the following: A2· lives in apartment B AZ is a ftrst-year member of the University's football team. A6 and A11 After the of the Radius apartment building with his roommates - A8 :, first football garne, A2 spent time in apartment A , where A12 :, A7 and two other iootball team members live. While in apartment A , A2 met RS for the first time. RS sat down between A2 and the recruit on a couch. RS and ' A2 began following A2 told RS that he lives in the Radius and invited her to his one another on Instagram. apmtment. · A2 denied suggesting that they go to his apartment to look at its floorplan. RS agreed to go to A2 apartment. She briefly spoke with her girlfriends before leaving with ' A2 and the recruit. RS appeared to have drunk some alcohol previously but was not drinking at the lime. She did not appear intoxicated and was not slul'ring her words, bumping into walls or doing other things associated with drunkenness. RS was flirtatious but did not say or do anything that explicitly communicated that she wanted to engage in sexual activity. A2 and the recruit went directly into · A2 Upon entering apartment B , RS :, bedroom. A2 shut the door to the bedroom. Then A2 left the bedroom to use the bathroom. A2 does not recall RS using the bathroom. However, A2 generally tells A2 guests to use the bathroom by the front door and RS may have used this bathroom. would not have waited for a guest between the bathroom door and the front door because it is a small area. A2 the recruit and RS began talking in the bedroom about having a "threesome," She asked how it would work. She never explicitly said that she wanted ~o have sex with both men simultaneously, but A2 understood that she wanted to engage in this sexual activity based on their conversation about how a threesome would work. the recruit and A2 did not explicitly discuss removing their clothes or having sex, took his shht off. Then, RS took her shht off. Then, the recruit took his shirt off. does not recall what RS was wearing. He did not unzip her shirt, say that he wanted to ''figure out her bodysuit," or take off her clothes. There was no point at which both men were naked and RS was fully clothed. RS :, A2 A2 A2 laid down on his bed with his calves hanging off the bed. RS p·ulled · A2 pants down to his anldes. RS or the recruit took her pants off. RS began giving. A2 ora1 sex. The recruit began having vat,rinal sex ·with RS from behind her. - A2 was not wearing a A2 drawer. RS did not condom but believes that the recruit was weari11g a condom from A2 does not believe that he or the recruit said, "come on." ask, «what axe we doing?" 21 After about thirty seconds of this sexual activity, RS said "this is hard." She said that she had never done this before. She said that she needed to throw out her gum. She said, "this is fucking A2 responded tl1at he could leave and that the 1·ecruit and RS could hard I don't know." have sex one~on-one. A2 then said let me know when you are done and left the room and shut the door. He did not tell RS not to come out of the bedroom lmtil she had sex with the recruit. A2 took two videos while RS and the recruit were in his bedroom. The first was a sh01t video of the recruit and RS The second was a video of RS giving A2 oral sex while the A2 did not have any conversations with RS about taking recruit had vaginal sex with her. this video or about whether he would share this video with anyone. However, be is "pretty sure» that she knew that he was taking the video because she looked into the camera. A2 no longer has either video because the police removed them from his phone. A2 sent the shott video to 1he Empire message group composed of first-year football players. A2 showed the second video to the recruit that night. He thinks he also showed that video to his roo1mnates that night, and might bave showed it to others that night as well. But he did not send it to anyone. A2 could hear RS and the recruit talking inside the bedroom. It sounded like RS was frustrated because she was unable to have sex with the recruit because he could not get or keep an erection. After a bit, A2 opened the bedroom door. The recruit was putting his clothes on. The recruit finished dressing and left the room. A2 did not express disappointment that A2. did not hear the recruit say anything like, ''this school is the recruit did not ejaculate. fucked up." RS was sitting on the right side of the bed. A2. laid down on the left side of the bed. A6 briefly entered the room and stood at the foot of the bed. He talked with RS about A6 left the room and RS and how they had previously matched on Tinder. Then A2 were alone. RS began giving A2 oral sex so that he could get an erection. RS stopped and he said, "what are you doing, keep going, just a little longer." Then, A2 had vaginal sex from on top of RS A2 used a condom from his drawer. During vaginal sex, RS "seemed happy" and said something like, "this is much better because [the recruit] couldn't get an erection.'' RS moaned and grabbed his back. She was "definitely into it" and did not resist in any way. After A2 finished having sex with RS , A6 entered the bedroom. At some point, and possibly then, A2 said that he wanted people to leave his room. A2 .eft RS and A6 alone in the bedroom. At that point, A2 I'Oommates A11 and A8 were jn the living room. The recntit was either already gone or left the apartment shortly afterwards. At some point, A2 sent messages to the Empire messaging group stating that he and the recruit were in his apartment with a woman. After having sex with RS ., A2 called : A1 via Facetime and shared that he and the recruit had just' had sex with a woman at the same time. However, A2 d]d not tell A1 or anyone else to come to his apartment. He was surprised wl1en people came to his room. He had not thought that "all the guys" would come to have sex 22 with RS '· A2 remained in the living room and did not return to the bedroom until just before RS left the apartment. Other football players began arriving while A6 was in the bedroom with RS '· A 10 · arrived. A2 does not know whether A10 ' went into the bedroom with RS '· As A6 left the bedroom, A 1 A5 and A4 atrived. They entered the bedroom and began speaking with RS :, A2 told them to go somewhere else with RS but they did not. A1 AS and A4 each had a one-on-one sexual encounter with RS , but A2 does not know in what order. At some point, A 12 and A3 briefly entered apartment B . At some point, A4 and A1 left the apartment. At 4:17am, A2 sent a message to the Empire group stating, "Damn A10 all 3 them n****s hitting m. · A2 explained that he addressed the message to A10 . because he had just left the apartment. A2 explained to EOM that the "3" in his message refened to A1 AS and A4 but that he was uamplifying" and that tbe1three men did not actually have sex with RS at the same time. A5 was the last person to have sex with RS :. Over the course of the night, A2 never heard or saw anything that indicated that RS ' did not want to have sex or that she did not want any more people in the room. From the living room, A2 would have heard anything that RS said loudly. A2 also did not see or hear people congregating by the bedroom door, repeatedly turning on and off the lights, repeatedly opening and closing the bedroom door or yelling things into the bedroom. A2 entered the bedroom after A5 and RS had finished having sex. Both A5 and RS were dressed or getting dressed. A4 and A1 returned to the apartment to get A5 A4 A1 A5 and RS then left the apartment at the same time. A4 and RS had a conversation as they left the apartment. A2 direct messaged RS through Instagram at 4:41am - arO\md 20 minutes after she left his apartment. RS agreed to talk with A2 and they talked in the hallway outside of his A2 did not ask RS apa1tment. During that conversation, RS said she was okay. whether she would tell anyone about what had happened in his bedroom that night. A2 cleaned his bedroom by himself. He remembers cleaning up a few condom wrappers and one used condom that had been left on or near the television stand. He also remembers washing his sheets. He does not think that he slept in his room that night. A2 acknowledged sending an lnstagram message to RS , stating, "l know that shit was not cool 1 had to wash all my shit I ain'1 even sleep in there last night." A2 explained that he intended to convey that all the men having sex in his bedroom was "not cool." 2. A2 ~tatements .to the police The Police Case Repott's summary of A2 statements to the police differs from the statements that A2 made to EOAA in the following ways: 23 First, according to the Police Case Report, A2 reported that RS told him that she had never had a ''threesome with two guys" while they were sitting on the couch in apartment A . When speaking with EOAA, A2 reported that this conversation occurred in his bedroom in apartment B . Second, according to the Police Case Rep01t, A2 1 repoltecl that RS had sex with men in this order: the recruit and A2 the recruit, A2 A6 ., A1 A4 A5 When speaking with EOAA, A2 reported that RS had sex with A4 before A1 3. Videos A2 reported that he took two videos while RS was i.n apartment B - an eight~second video ('~8-second video») and a 90-second video ("90-second video"). • 8-second video; EOAA reviewed the 8-second video taken by A2 on September 2. During the video, RS voice and posture do not convey fear. The tone of her voice could be reasonably interpreted as not serious thwugb.out the video. The video shows RS reclining on a bed with her clothes on. She is smiling and her body is turned toward a mru1 (whose face is not shown but has been idcntifted by others as the recruit) with his shht off and pants on who is sitting close .to her on the bed. The recruit appears to be attempting to unzip RS one-piece bodysuit top ·w ith his right hand. RS appears to be lightly holding this hand, possibly to interfere with bis attempt to unzip her top. The rec1uit then uses both hands to try to unzip RS top. At this point, the video swerves and does not show RS or the recruit However, RS can be heard saying "noooooooooo." Two men then speak. One says something that sounds like, "damn girl." The other says something that sounds like, "Ah shit she try ... What, you really got a one-piece on?" A slapping sound can then be heard. (Neither RS nor 1 A2 recalled where the slapping sound came from. However, given the context, it was likely RS slapping the recruit's hand away from her shirt's zipper.) Part of RS body comes into view and she responds, "I told you it was.·~ RS then appears to sit up and turn her body away from the recruit. However, only a portion of RS body is visible and the recruit is not shown. Then, the video ends. • 90-second video EOAA was unable to obtain the 90-second video taken by A2 A2 lawyer Lee Hutton reported that he has th~ video and offered to provide it with RS written consent. Mr. Hutton reported that he obtained the video through a forensic investigation of 1 A2 ;ellphone. RS refused to consent because she has never seen the video, and feared that 1t would be too painful. EOAA obtained a redacted version of the Minneapolis P9lice Department's description of the video. According to the police description: The video shows A2 the recruit and RS , all naked. A2 is sitting on the bed with his legs spread. RS is on her hands and elbows with her 24 chest facing_ down. She appears to be perfonning oral sex on AZ The recruit is having vaginal intercourse with RS from behind her. At one point, RS says, "Okay, I have to throw out my gum, where do I put it, I can't, man, guh, no, no (laughs) it's so hard with three of you. Okay, okay this is fucking bard, I don't know.'' One of the men suggests that they take turns and RS replies, "1 don't know. 11 According to the police description: The two men make gestures indicatillg success to one another during the sexual interaction. RS sounds somewhat intoxicated, but her coordination appears to be normal and she is not slurring her words. She does not appear to be upset by the sexual activity. She does not indicate that she wants it to stop. The Minneapolis Police Department concluded that the sexual contact "appears entirely consensual." A2 • iisttibution of the 90~second video Many members of the Empire messaging group reported that they did not receive the 90~second video through the Empire group. However, A11 rep01ted that A2 did send this message to the Empire group, and that A 11 watched it on his phone. A 12 reported that "he thinks" that A2 sent this video to the Empire group. A6 reported that he heard that A2 sent this video to the Empire group, but that A6 did not see it there. A6 also reported that A2 also showed him this video on 1 A2 phone. The Police Case Report stated that the 90-second video was found in two different formats on A2 phone. This could indicate that A2 took the video in one format and sent it to others in another format. A2 attomey reported that a forensic expert investigated A2 phone and concluded that A2 had not sent the video to others with his phone. EOAA requested access to this expe1t or this expert's analysis, but did not receive it. 4. A2 messages to the Empire messaging group We obtained messages sent to the Empire Group on the night of September 1~2. We learned the times at which some of these messages were sent, but do not have this information for all of the messages. A2 sent a message to the Empire These messages show the following: At 3:17am, messaging group that appears to refer to RS and stated, "Me and the recruit finna double team A2 then sent a photograph of the recruit with his shilt off to the Empire group. this bitch." At 3:25am, 1 A2 sent another message stating, "Lol we fo11'eal going brazy lol." A2 later A2 messaged, "Damn A10 all 3 messaged, "I took good videos." Finally, at 4:17am, A2 also sent the 8-second video to the Empire group. them n"'***s hitting rn." 5. Witnesses repo1ted the following relevant information related to • A2 Witness-1 reported t~e following: Witness~ 1 saw RS sitting hetween two football players on a couch in apa1tment A in the early morning hours of September 2. All of a sudden, RS stood up with the two men and told Witness-1 something like, "I thjnk we are going to 25 go. We are going to be back though.'' Witness-1 asked RS whethor she was sure that she wanted to go. • Witness-3 reported the following: Wi1ness-3 saw l RS , 1 A2 one another on the couch in apartment A . and the recruit flirting with o The Polic-e Case Report reported the following: The recruit reported to the police that: (1) RS the. recn1it and A2 were "flitting'' in apattment A ; (2) : RS was "able to cm·e fo1· herself and did not appear [to be] in distress or feal';, (3) RS was 11ldssing and feeling on him;, atld (4) RS :told him that it was okay for A2 to come into the room afte1· the recruit bad fmished having sex with her. ~ A6 reported the following: When : A6 first spoke with A2 about RS in apa1tment B , A2 said, "she going." A6 interpreted this to mean that RS was willing to have sex with o1hers. A6 denied tha1 A2 told ~ A6 to take 'RS into his own bedroom. A2 said, "Uris is the last one" while A5 · was havitlg sex with RS At some pomt after 1 .RS left apartment B , A2 . said that Iris bedl.'oom was messed 1.1p and that he had condoms to clean up. • repotted the following: want to." Based on what have sex with others. A10 yott A2 said something like, "you can all go in and fuck if A2 said A10 ·understood that : RS was willing to • A4 '• A1_ · and A5 all denied leaving apartment B with RS . having a conversation with : RS : as she left the apartment. A4 : f1.u1:her denied ~ A12 reported the followjng: Shortly after arriving in apartment B , A12 :saw A1 A6 A2 A4 A11 and the recruit on the living room couch. ·A12 understood that A5 was in the bedroom with RS .. A12 understood that A1 ·, A4 and A5 ·had j1.1st been in the bedroom with RS together. Someone told · A12 that they were "training her'1 and that she had agreed. ("Training her1 ' appeats to refel' to "nm.ning a train," or multiple men lining up to have sex with a woman.) At one point, A2 , A6 , A11 , A4 '• A1 '• the recruit, A3 and A12 :gathered around the open doorway to A2 bedroom. A5 : was having sex witt : RS inside the bedroom. One of the men was turning on and off the bedroom lights. The men were discussing who would have sex. with RS next. The men were also "talking and saying ihlngs,, although A12 does not remember any specific coniinents. At another poh1t, these men were Hstening to A5 ann ~· R~ ':engage i11 sexual contact from Oll..tside of the bedroom. A12 recalled, "from the sluff she said, it didn•t seem like she was into it. She said something and [the men present] dec_ided it was messed up ... She said something that made 1t seem like it wasn)t the xight thing to be doing. They told A2 1 to get A5 · out of the room. A2 said, 'no man, she straight."' A12 does not recall what RS said that caused this concern. :R8 ·· later said something else that caused the men 26 concem. She possibly said, "don't send a11y more people in.'' last one.'' A2 A2 then said, "this is the : Analysis and Conclusions 1. CredibiLity RS and A2 accounts of their sexual contact with one another differ markedly. Given the available evidence, it is not possible to reconcile all of the discrepancies. However, we generally find RS accol.mt to be more credible for the reasons detailed in the "Credibility. of the Parties" section above, and also because A2 account is ·at times inconsistent with: (1) credible rep01ts from other accused students and witnesses; and (2) ethel' evidence. For example: • reported that A2 and the 1·ecruit disrobed while she remained fully clothed. denied this account and reported that he fust took his shirt off, then RS took her shirt off and the11 the recruit took his shirt off. However, the 8-second video shows that the A2 reported that he was recruit removed his shirt while RS remained fully clothed. also shirtless when he took tlus video. RS A2 • A6 and A12 reported that A2 ;aid, Hthis is the last one" while AS was having sex with RS :. In contrast, A2 denied saying this or "paying much attention" to what was happening in his bedroom after he finished having sex with RS :, • RS rep01ted that A2 led her out the front door when she fmally left apartment B . A2 reported that A1 AS and l A4 led RS out of the apartment and walked away witJ1 her. A1 , AS and A4 : denied that they left with RS or at the same time as RS RS also denied leaving at the same time as A1 , AS and A4 A2 reported that he only cleaned up one condom in his bedroom. According to A6 ., -· A2 stated that his room · ''was messed up" and that he had to clean up condoms. 2. Sexual assault • Did RS affrrmatively consent to sexual contact with A2 ? The evidence indicates that RS expressed reluctance to engage in sexual contact with A2 in the following ways. RS initially resisted A2 and the recruit's attempts to t'emove her clothes. RS repeatedly stopped giving A2 oral sex while the recruit was also having sex with her. According to the Police Case Report, the 90-second video shows that RS expressed A2 that she di.d not know whether she wanted tq during this first instance of oral sex with continue sexual contact. Moreover, A2 acknowledged that, during his second instance of oral sex with RS '• she stopped the sexual contact and he responded, "what are you doing, keep going, just a little longer." 27 Evidence also suggests that, at times, A2 failed to appropriately assess whether RS wanted certain sexual conduct. For example, · A2 acknowledged that he began videoing RS having sex with him and the recruit without her permission. He also acknowledged that he showed the resulting 90-second video to other me.n without RS permission. As another exam.ple, A2 wrote to the Empire group: "Me and the recruit finna double team this bitch." ("Finna" generally means "going to.") This comment can be read as demonstrating A2 determination to engage in sexual activity with the recruit and RS at the same time regardless of RS wishes. However, it can also be read as mere braggadocio or blustering to his teammates. At a minimum, A2 comment suggests an expectation that RS would consent to this sexual contact. However, the evidence also indicates that RS engaged in conduct that expressed aft1rmative consent to sexual contact with A2 RS continued some type sexual contact with A2 after the exchanges in which she expressed reluctance. The Minneapolis Police Department concluded that the sexual contact shown in the 90~second video appeared "entirely consensual." Moreover, RS reported that she did not explicitly communicate to A2 that she did not want to engage in sexual contact because she feared that he and the recruit would either ignore her protests, make her feel bad about her protests or "cause a scene." RS also reported that she was actively trying to get A2 and the recruit to ejaculate so that she could leave, which indicates that she behaved in a manner that A2 and the recruit reasonably understood as providing affirmative consent to the sexual activity. Ultimately, based on available evidence, we fmd it more likely than not that a reasonable person in the circumstances would have believed that RS provided affirmative consent to the reported instances of sexual contact with A2 9 • Did RS sexual contact with A2 result from intimidation or coercion? According to University policy, consent for sexual contact is not obtained where there is intimidation or coercion. Therefore, we must assess whether A2 1 engaged in intimidation or coercion. The evidence indicates that the recruit and A2 applied some pressure to convince RS to engage in sexual contact. In particular, we find that the following likely occurred: A2 knocked on the bathroom door while RS . was inside·and told her that she was taking too long. The recruit and A2 attempted to remove RS top despite her resistance, which may have been reasonably perceived as light-hearted or not serious. The recruit and A2 removed their clothes while RS remained fully clothed, and then A2 removed RS clothes. A2 encouraged RS to continue sexual activity with him and the recruit even after she expressed reluctance by repeatedly stopping oral sex and stating that she did not know whether she wanted to continue. 9 A2 also reported that RS provided affirmative consent in specific ways, sucli as by: (I) taking her own shirt off; (2) pulling down 1 A2 pants and beginning to give him oral sex while the recruit was present; (3) giving him oral sex again when ho and RS were alone in the bedroom; and (4) moaning, grabbing his back and saying that sex with A2 was better than sex with the recruit while they had vaginal intercourse. Given RS denial of these events and EOAA 's assessment of RS g1·cater credibility, we do not r~ly on these reports in our finding of affirmative consent. 28 We find RS report that she did not want to engage in the sexual contact but felt isolated, A2 and the recruit exetted trapped and fearful to be credible. Ultimately, we find that pressure on RS to engage in sexual contact. However, we do not have sufficient evidence to conclude that this pressure rose to the level of intimidation or coercion required to violate University policy. • Did A2 aid or abet any other accused students' sexual assault of RS ? Under the Student Conduct Code, assisting or abetting another person or group to commit sexual A2 violated this assault is a violation of the Code's sexual assault provision. We find that provision by facilitating a gathering of men in apartment B while RS : was unclothed in his bedroom and without RS knowledge, by encouraging at least some of these men to enter his bedroom and have sex with RS and, in one case, by opposing other men's suggestion that they intervene in what appeared to be an unwanted sexual encounter between RS and another man. first, A2 facilitated the gathering of men in aparUnent B when he: (1) messaged the Empire group that "[m]e and the recruit finna double team this bitch," (2) sent at least one video of RS to the Empire group; and (3) called A1 to tell him that he and the l'ecruitjust had sex A2 report that he was with a woman at the same time. Given these deliberate acts, we find "surprised" when men began entering his apartment to have sex with RS . to be not credible. Second, the evidence indicates that A2 made comments that encouraged men to enter his bedroom .and have sex with RS and/or effectively communicated that RS had agreed to have sex with more men, when she had not. For example: (I) A10 reported that · A2 told him A6 reported that 1 A2 something like, "you can all go in and fuck if you want to;" (2) told him "she going," which A6 understood to mean that RS was willing to have sex wi.th others; and (3) A12 reported that A2 responded ' '110 man, she straight" when others expressed concern that RS appeared to be resisting sexual contact with A5 and suggested A2 bears significant removing her from that situation. This evidence indicates that t·esponsibility for many men entering the bedroom where RS was unclothed and, in some cases, having nonconsensual sexual contact with RS . in violation of the sexual assault provision of the Student Conduct Code. 10 3. Sexual harassment A2 engaged in the following serious violations of the University's sexual We find that harassment policy. We understand that A2 denies some of this conduct. However, based on the numerous discrepancies in 1 A2 reports to EOAA, as well as our assessment in the "Credibility of the Parties" section above, we find his denial to be not credible. First, we find that 1 A2 made the 90-second video of RS having sex with him and the recruit A2 reported that he did not ask RS permission to begin taking without her pennission. this video, but that he assumed that it was okay because RS at one point looked ditectly into his phone's camera. We find that A2 · acknowledged act of videotaping without RS . 10 As explained later in this letter, we find that. A5 ·, A1 A4 and A6 engaged in non-consensual sexualcontact With RS in violation of the sexual assault provision of the Student Conduct Code. · 29 permission is alone sufficient to violate the sexual harassment policy in this case. We also find credible RS account that she did not know about this video until the district attorney later told her about it Second, we find that A2 showed the 90~second video to others (including hls roommates, the A2 reported recruit and possibly the Empire messaging group) without RS permission. that RS never gave him permission to show the video to others. Third, we find that A2 was patt of the group of men that crowded around his bedroom door rep01t that to watch RS engage in sexual conduct. Among other things, we rely on A 12 A2 was among the men watching RS have sex with AS from the doorway. We also considered · A2 rep01t that he remained in apartment B for the entire time that RS was present. A2 above~described conduct violated the University's sexual harassment policy because it was conduct of a sexual natm·e that was unwelcome to RS and had the following impacts on RS :: (I) unreasonably interfering with RS academic performance; (2) unreasonably with RS participation in University activities, . including her participation and (3) creating an intimidat~ environment for on campus and off-campus in her participation - - - - We do not detail the specific impacts on RS in order to preserve her privacy. 4. Conclusions In conclusion, we find that A2 violated the following University policies; 1. Administrative Policy: Sexual Harassment; and 2. Board of Regents Policy: Sludent Conduct Code, Section IV: o Subdivision 6 (Harm to Person). We' find that A2 violated this Subdivision by engaging in harassing and ass'aulting behavior that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A2 violated the sexual harassment and sexual assault portions of this Subdivision. o Subdivision 19 (Violation of University Ru1es). We find that A2 violated the Administrative Policy: Sexual Harassment. 30 n. A6 Evidence gatltered from 1. A6 A6 : and others reported the following: A6 is a first~year member of the University's football team. A6 lives in apartment A6 spent some time in 8 with A2 , A 11 and A8 . After the first football game, A2 apartm.ent A where some football teammates live. When he returned to apartment 8 , was in his bedroom with a woman. A 11 was in his bedroom or the living room. A6 went into his own bedroom. . A2 and the recruit came out of A2 bedroom. AZ said something like, "we tan her" and "she going," which A6 understood to mean that RS was wi1ling to have sex with multiple people. The recruit walked into the living room. A6 asked who the woman was. A2 told biro to go and see. A6 looked into A2 room. A6 said, "that's RS '· I know her." RS : was on A2 bed. She was not wearing clothes. A6 entered the bedroom and began talking to RS :. A6 had matched with RS on Tinder and they had talked a bit over Tinder. However they had never met in person. RS was chatting normally and seemed comfortable. A6 asked her whether she wanted to have sex. She said yes and asked whether he had a condom. A6 replied that he did. A6 did not say, "it is roy tum" or uyou're too sexy. I need my turn.'' RS did not say that she did not A2 did .not express that he did not want A6 and RS understand what was going on. to have sex in his bedroom. RS gave A6 oral sex. A6 was standing up and RS was leaning off the bed. RS stopped giving A6 oral sex once he got an erection. At some point, A6 looked for but could not find the condom that he kept in his pocket. RS leaned off the bed to help A6 look for it. A6 then went into his bedroom and got another condom. A6 reentered A2 bedroom and shttt and locked the door. A6 put on the A6 had vaginal sex from on top of her. During condom and RS spread her legs and vaginal sex, RS "was feeling on his back'' and looked like she was enjoying sex. She repeatedly said ''yes." A6 did not grab RS hair and force her to give him oral sex. He was not rough or forceful during vaginal sex. RS never said that it hurt or that she wanted to stop. RS never said or did anything that made him think that she did not want to have sex with him. RS did not seem confused, upset or dnmk. At some point while they were having sex, someone knocked on the door. However, no one ' catne into the room or opened the door because it was locked. After they finished having sex, A6 talked to RS for a bit. RS did not try to get dressed. After they had sex, RS . looked for her phone and found it. 31 After A6 "what's up?" unlocked the bedroom door, A10 entered the bedroom. A1 0 said A6 rep01ted that A10 "wasn't feeling tt" so decided not to have sex with RS :, A6 and A10 . left the bedroom together and went into the living room. When A6 left the bedroom, A1 , A4 and AS were in the hallway outside the bedroom door. They were talking about who would have sex with RS next. A4 went into the bedroom by A6 A1 AS and J A4 were neve!' in the bedroom with RS together. himself after left to go to his apattment soon afterwards and did not retum. A6 went into room and jumped onto his bed to bother him. Later A11 joined the others in the apartment's living room. A 10 A11 A6 heard A2 say that AS would be the last peison to have sex with RS A6 did not see AB ·, A11 or others look into the bedroom or crowd around the bedroom door. He did not see anyone turning on and off the lights or opening up the door. He did not hear RS raise her voice or say anything to indicate that she did not want to engage in sexual activity. The men who had sex with RS after A6 all said that they asked RS whether it was okay and that she said "yeah." thinks that A4 , A11 ., AB ., A2 A1 and AS were in the apartment when left. A6 reported that A7 , A12 and A3 never entered the apartment that night. After the EOAA investigator stated that there was strong evidence that A12 was A6 acknowledged that A12 was likely present in the present in the apartment, apartment that night. A6 RS A6 asked A2 whether RS was still there, and A2 said no, she Later in the night, A6 does not know who walked RS out of the apartment. A6 went to bed left. shortly after RS left. He was unaware that RS returned to his apartment to talk to A2 that night. A6 did not see the mess in A2 room. However, A2 said that his room "was messed up" and that he had to clean up condoms in his room. When asked whether anyone was worried about RS "' A6 responded, "We were worried whether she was okay or not or whether she was tripping. Obviously, we didn't want bet· to overreact. She made it seem like it was okay." 11 2. A6 statements to the police The Police Case Report's summary of with A6 statements to EOAA. 3. A6 A6 statements to the pollee is generally consistent messages to the Empire messaging group 11 EOAA asked RS whether the events described by A6 occurred. RS denied the portions of A6 account that fire within her scope of knowledge and that differ from her account provided above. For example, RS dellied that A6 asked her to haye sex and that she replied "yes." She also denied that she helped A6 to look for a lost condom. She also denied spreading her legs so that he could penetrate her vaginally or doing anything during their ~exual encounter to indicate that it was consensual. 32 sent messages to the Empire group about RS on the night of September 1-2. We do not know exactly when A6 sent these messages. Around 3:17am, A2 wrote to the Empire messaging group about RS ., "Me and the recruit finna double team thiS bttch." Shortly afterwards, A6 identified RS : to the group by writing, "That's RS ." At 3:25am, A2 wrote "Lol we forreal going brazy." Shortly after that, A6 wrote "I hear y'all," which may have meant that he could hear A2 and RS having sex through the wall between A2 and A6 bedrooms. A6 4. Witnesses reported the following relevant information related to • A6 .. .reported the following: Shortly after arriving at apartment B A12 saw A1 ., A2 A4 , A11 , and the recruit on th~ living room couch. A12 understood that A5 was still in the bedroom with RS A 12 understood that A1 A4 and A5 had just been in the bedroom with RS together. Someone told A 12 that they were "training her" and that she had agreed. ("Training her, appears to refer to "running a train," or multiple men lining up to have sex with a woman.) A12 A6 At one point, A2 A6 , A 11 ., A4 A1 the recruit, A3 and A 12 gathered around the open doorway to A2 bedroom. A5 was having sex with RS inside 1he bedroom. One of the men was turning on and off the bedroom lights. The men were discussing who would have sex with RS next. The men were also "talking and saying things," although A 12 does not remember any specific comments or conversations. At another point, these men were listening to A5 and RS engage in sexual contact from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up ... She said something that made it seem like it wasn't the right thing to be doing. They told A2 1 to get A5 outoftheroom. A2 said, 'noman,shestraight"' A12 doesnotrecallwhat RS said that caused this concern. RS later said something else that caused the men concern. She possibly said, "don't send any more people in." A2 then said, "this is the last one." • A 10 reported the following: A 10 . first reported that he thinks that the bedroom door was locked while A6 and RS were inside. Upon further questioning, A 10 reported that he tried to open the bedroom door and found that it was locked. A10 reported that A6 eventually opened the door and left the bedroom. Then, A 10 entered the bedroom with RS alone. • reported the following: A6 entered the bedroom on two occasions. First, entered the bedroom and spoke with RS and A2 A6 then left the bedroom and A2 had sexual contact with RS A6 then entered the bedroom for a second time to have sexual contact with RS A2 A6 A6 :: Analysis and Conclusions 33 1. Credibility RS and A6 accounts of their sexual contact with one another differ markedly. Given the available evidence, it is not possible to reconcile all of the discrepancies. However, we generally find RS account to be more credible for the reasons detailed in the "Credibility of the Parties" section above, and also because A6 account is at times inconsistent with: ( 1) his own account; or (2) credible reports from other accused students. For example: • RS reported that men crowded around the bedroom door and turned on and off the light A6 denied that this occurred, either while he was in while other men had sex with her. the bedroom or at any other tune. However, A12 reported that he and six other men, including A6 ., gathered around the bedroom doorway "saying things" and turning on and off the lights while RS was having sex with A5 • initially reported to EOAA that A12 was not present in apartment B during the relevant time period. He later acknowledged that A12 was likely present in the apartment that night. • A6 reported that A1 . : A4 and A5 were never in the bedroom with RS together, A4 , A5 and A10 all repo1t that these not even while having a convetsation. A1 A4 and A 10 . all three men entered the bedroom together to talk to RS :. A1 reported that A6 was in or near the bedroom when the three men entered. A6 2. Sexual assault At issue is whether RS affirmatively consented to sexual contact with A6 t. According to A6 account, RS provided affirmative consent to sexual contact with him. For example, she: (1) explicitly stated that she wanted to have sex; (2) willingly gave A6 oral sex; (3) helped A6 look.for his condom~ (4) spread her legs to indicate her willingness to engage in vaginal sex; (5) and expressed through actions and words that she wanted to continue vaginal intercourse. A6 that she did not understand what In contrast, according to RS account, she told A6 then forced her to have oral sex by using her hair to control her head. was going on. He continued to force her to give him oral sex even after she repeatedly said that she was going to throw up. A6 then had forceful, rough and painful vaginal sex with RS He refused to stop even when she repeatedly said stop, said that he was hurting her and tried to push him off of her. Given our assessment of RS greater credibility. we ultimately find it more likely than not A6 that RS did not provide affirmative cotisent to her sexual contact with 3. Sexual harassment 2 The evidence indicates that A6 crowded around A bedroom door with other accused students to watch RS engage in sexual conduct. Among other things, we rely on 34 A12 report that A6 was among the men watching RS have sex with A5 from the doorway. We also considered A6 report that he remained in apartment B for the entire time that RS . was present. We understand that AS denies this conduct. However, based on the numerous discrepancies in AS reports to EOAA, as well as our assessment in the "Credibility of the Parties" section above, we find his denial to be not credib.le. We find that this conduct violated the University's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS (l) unreasonably interfering with RS academic performance; (2) unreasonably interfering with RS participation in University activities, including her and (3) creating an intimidating, hostile and offensive environment fol' on campus and offWe do not detail the specific impacts on campus in RS in order to preserve her privacy. 4. Conclusions In conclusion, we find that A6 violated the following University policies: 1. Administrative Policy: Sexual Harassment; 2. Administrative Policy: Sexual Assault, Stalldn.g and Relationship Violence (sexual assault provision); 3. Board of Regents Policy: Student Conduct Code, Section IV: o Subdivision 6 (Harm to Person). We find that AS violated this Subdivision by engaging in harassing and assaulting behavior that endangered RS physical and mental health, safety and welfare. 9 Subdivision 8 (Sexual Misconduct). We find that AS violated the sexual harassment and sexual assault pottions ofth.is Subdivision. o Subdivision 19 (Violation of University Rules). We find that AS violated the Administrative Policies: Sexual Assault, Stalking and Relattonship Violence and Sexual Harassment. 35 III. A10 Evidence gathered/rom 1. A 10 A10 ·ami others reported the following: A10 is a first-year member of the Univel'sity's football team. He lives in apartment 331 in the Radius. After the first football game, A10 : spent time in his apartment with his girlfriend, who was visiting from out of town. At some point, A 10 . went to aprutment B to visit his friends who live there and see what they were plarming to do for the remainder of the night. A 10 . girlfriend remained in his apartment. At this point, A 10 · did not know that there was a woman having sex with multiple people in apartment B . A10 is part of the Empire messaging group but had not seen · A2. messages about he and the recruit having sex with a girl in apartment B . Upon arr.iving in apartment B , A 10 . spoke with A6 :. A6 said that A2 and the recruit were "running a train on a girl," meaning that they were both l1avi.ng sex with her. The other apartment residents, A8 . and A 11 , were in their bedrooms. and the recruit left the bedroom smiling and laughing. A1 0 is not sure whether they A2 · and the recmit both said exited the bedroom at the same time or at different times. A2 said something like, "you things that confirmed that they had had sex with the woman. can all go in and fuclc if you want to." Based on what< A2 said, A10 . Ul)derstood that the woman was willing to have sex with other men. A2 After A2 left the bedroom, A6 immediately entered the bedroom and shut and locked the door. A6 was in the bedroom alone with RS for about five minutes. A 10 . and A2 stayed in the hallway outside the bedroom. A 10 · tried to open the door to 1 A2 bedroom while RS and A6 were having sex inside, but was unable to open the door because it was locked. A10 : could not hear anything that was happening inside the bedroom. A6 left the b'edroom, A 10 : went into the bedroom to "be nosy and see who the After girl was." RS was on the bed with a blanket wrapped around her. A10 ' could see that she did not have any clothes on. RS had her phone and appeared to be scrolling through Instagram or another social media application. A10 introduced himself to RS and asked her in a joking manner what had happened. RS responded with a little chuckle. RS did not seem afraid, upset, confused or i11toxicated. A 10 · did not ask RS for any sexual contact or discuss having any sexual contact with RS :. He did not want to have sex with RS because he has a girlfriend. A 10 . did not tell RS that it would be better if she did not remember his name. (However, ~ar1ier in his EOAA interview, A10 had stated th~t, "he wishes RS didn't remember his damn name.") Then A 1 A5 and A 4 appeared at the bedroom door. A 10 left the bedroom and A6 .. When immediately left the apartment. He did not enter the living room or speak with 36 •Tt· A10 . left apartment 8 , A6 AS were in the bedroom with RS A4 A2 and A11 were in the hallway. A1 , and A woman who was visiting A11 was in the bathroom. was in apartment 8 for around thirty minutes. He was in the bedroom with RS for around 1-2 minutes. While A10 was in apartment 8 , RS was never alope in the bedroom. A10 ' did not hear RS say or do anything to indicate that she did not want to engage in sexual activit)', A10 did not witness any people repeatedly turning on or off the bedroom lights, repeatedly opening and closing the bedroom door, yelling things into the 12 bedroom or discussing who would have sex with RS next. A 10 2. A 10 . statements to the police The Police Case Report's summary of A10 , statements to the police differs fi·om the statements that A10 made to EOAA in the following ways: First, according to the Police Case Report, A10 ' reported that he entered • A2 bedroom a11d spoke with RS before A6 had sex with RS When speaking with EOAA, A10 reported that he entered the bedroom and spoke with RS after A6 bad sex with RS A10 reported that he told the police this as well. Second, according to the Police Case Report, A10 · reported that he stood next to A6 in the bedroom with RS When speaking with EOAA, A10 . rep01ted that he entel'ed the bedroom and spoke with RS after A6 had left the bedroom. 3. Witnesses repo:rted the following relevant information related to A10 :: • A12 .reported the following: He did not see A10 ' in apartment B that night. A10 later told A12 that A10 .tried to have sex with RS in • A2 bedroom but that she refused. • A6 reported the following: A10 , decided not to have sex with RS because he "wasn't feeling it." A6 and A10 left A2 · bedroom and then walked into the front room together. A6 and A10 talked for a short while and then A10 ' left apartment B and did not return. However, A6 also reported that he was "chilling with A10 and A11 in the living room for the rest of the night." • A2 reported the following: He singled out A10 in his message to the Empire group at 4:17am ("Damn A10 . all 3 them n****s hitting m") because A10 had just left A2 does not know whether A10 : went into the bedroom with RS apartment 8 . • AS reported the following: After meeting RS in A2 bedroom, AS left the bedroom and entered the living room. A10 was in the living room at that time. 12 EOAA asked RS whether the events described by A 10 occurred. RS denied the portions of A 1 0 . account that are withln her scope of knowledge and that differ from her account provided above. T-or example, RS denies scrolling through Instagram on her phone or "chuckling" in response to a question from A 10 37 A10 ·: Analysis and Conclnsions 1. Sexual assault RS does not specifically recall any sexual contact with A10 :. However, RS does not recall significant portions of her time in apartment B and believes that many men had sexual contact with her that she cannot identify. RS does recall that four men (including A1 AS and two unknown men) participated in a group sexual encounter with her. We considered whether A10 was one of the men in this group because be was present in apartment B at the time and because of a message sent to the Empire messaging group. Specifically, A2 sent a message to the Empire group at 4:17am stating: "Damn A10 all3 them n****s hitting rn." ("R.n" is generally an abbreviation for "right now.n) A2 explained to EOAA that he addressed the message to A10 . because A10 had just left the apartment. A2 further explained that the tlu·ee men in his message referred to A 1 . AS and : A4 , but that he was ''amplifying" and that these three men did not actually have sex with RS at the same time. A2 message to be that A1 A5 and However, we find the more plausible meaning of A4 were having sexual contact with RS at the same time, We considered the possibility that A2 message was also intended to convey that A10 : participated in the sexual encounter with A1 A5 A4 and RS .. However, we did not find other evidence to support this possibility, and ultimately find insufficient evidence to conclude that A10 = .had sexual contact with RS 2. Sexual harassment We considered whether A10 engaged in conduct that violates the sexual harassment policy. A10 reported that he tried to open the doo~· to A2 bedroom while RS and A6 were having sex inside, but was unable to open the door because it was locked. A10 . also A2 bedroom after A6 finished sexual contact with RS reported that he entered A10 . was aware that RS had had sex with men in the bedroom and saw that RS was not wearing any clothes, although she had wrapped a blanket around her body. There is also some evidence that A10 asked RS for sexual contact and that she l'efused. A10 entering into the bedroom was conduct of a sexual nature, given that We find that RS was undressed and A 10 lrnowledge that several men had just had sex with her. We also find credible RS report that she did not want men to enter the room and was therefore shielding her body with a blanket. However, while this is a close case, we ultimately do not find that A10 conduct was sufficiently egregious to violate the sexual harassment policy. 3. Conclusions In conclusion, we do not have sufficient evidence to conclude that University policies. 38 A 10 violated any A4 IV. Evidence gatlteredfrom, 1. A4 A4 alld others ~epmted the following: is a second-year member of the University's football team. A4 lives with AS ·, and another football team member in the Marshall apartment building. After the first football game, A4 went to several gatherings at the Radius. At some point, A4 : and AS were leaving a gathering in apartment A . As they left, they ran into A 1 A 1 told them that A2 had just told him to come upstairs to A2 apartment. A1 did not tell A4 and AS what was happening in • A2 apartment. A4 A9 ' A2 apartment, A2 bedroom door was open and his When the three men anived in bedroom light was on. A4 heard people in the apartment's living room area. A4 · A1 and AS walked directly into A2 bedroom. When they entered, RS was sitting on the bed. She was wrapped in a blanket or sheet but not wearing any clothes. A6 and A10 . were also in the bedroom. RS was talking and A4 could not tell laughing with the men. She seemed fine and was not upset or confused. whether she had been drinking alcohol. A4 does not recall whether RS had her phone. A4 assumed that RS had had sex with someone on the football team. RS flirted with the men in the bedroom, but A4 did not know whether she was willing to have sex with other men. No one told A4 that RS was willing to have sex with other men. A4 After a few minutes, the other men left the bedroom, JeavhJg A4 and RS alone. was standing up and RS told him to sit on the bed. RS began rubbing A4 thigh with A4 turned off the her hand. RS asked A4 whethet he was going to turn off the light. light and returned to the bed. RS put her hands inside A4 pants. A4 pulled-his pants A4 penis in one hand and began giving : A4 o.ral down but left his shirt on. RS took sex. A4 was seated on the bed and RS was bent over him on her hands and knees. A4 stopped RS one or two minutes later without ejaculating. A4 told RS that he did not have a condom. However, he actually stopped the sexual encounter because he was involved with another woman and felt guilty. 4 then put his pants back on, left the bedroom and itnmediately left the apartment. He returned to apartment A . Later that night, AS also returned to apartment A . Then, A4 and AS returned to their apa1tment at the Marshall together. A RS did not say or do anything This was the only sexual encounter that A4 had with RS A4 did not take to indicate that she did not want to have this sexual contact with A4 RS head and lead it to his penis. A4 did not say that they c~uld just have oral sex, that A4 did not say that he did not undetstand this was no big deal or that it would be over soon. why RS would have sex with others but not with him; at that point, A4 did not know that RS had had sex with others. 39 I ' was in apmtment 8 for a tota1 of around 8~ l 0 minutes. While A4 was in aJ?artment never asked about her clothes or tried to retrieve her clothes. RS . never asked to see A2 told anyone to stop sending people into the room or told anyone that she hated them. No men crowd~d around the bedroom door, repeatedly turned on and off the bedroom lights or repeatedly opened and shut the bedroom door. No men yelled things into the bedroom while RS was ha-vin~ sex, cheered for men having sex with RS or discussed who would have sex with RS next. 1 A4 8 RS 2. statements to the police A4 The Police Case Report's summary of A4 statements to the police differs from the statements that A4 made to EOAA in the following ways: First, according to the Police Case Report, A4 reported that he ended his sexual interaction with RS by stating that he felt guilty about having sex with RS because he was "seeing another girl., Whe~ speaking with EOAA, A4 denied that be said this to RS or told the police that he said this to RS :, although this was his actual reason for ending the sexual interaction. Second, according to the Police Case Report, A4 reported that he asked RS : if she "was ok with what was about to happen and that she rlj:>puuded with an affhmative." When speaking with EOAA, A4 denied that this conversation with RS occurred or that he told the police that this convexsation occurred. Third, according to the Police Case Report, A 4 reported that someone informed him when he A2 bedroom was allowing sexual interactions and entered apartment 8 that a woman in that several of his teammates had already had sexual contact with her. When speaking with EOAA, A4 denied that this conversation happened or that he told the police that this conversation happened. 3. Witnesses reported the following relevant information related to • A6 A4 reported the following: When A6 left the bedroom after having sex vvi"lll: A5 and: A4 were in the hallway talking about who would have sex with RS , A1 RS next. • reported the following: At 4:17am, he sent a message to the Empire group stating: A10 all 3 them n****s hitting rn.'' A2 intended to convey that three menA1 A5 and A4 - were having sex with RS at once. However, A2 was "amplifying" or exaggerating. Actually, the three men were only talking to RS when they were in.the bedroom together and not having sex with her. A2 "Danm n EOAA asked RS whether the events described by A4 occurred. RS denied the portions of A4 account that are within her scope of knowle.dge and that Clttter rrom her account provided above. For example, RS denies that she rubbed A4 thigh, put her hands inside his pants or did anything else to Initiate a sexua( encounter with him. 40 • reported the folLowing: When A12 arrived at apartment B , he saw A1 and Jeaving A2 bedroom. A1 and A4 joined ( A2 A6 ., A 11 ., and the recntit 011 the living room couch. A 12 understood that AS was still in the bedroom with RS :. A 12 understood that A 1 J A4 and AS had just been in the bedroom with RS together. Someone told A12 that they were "training her" and that she had agreed. (''Training her" appears to refer to "running a train/' or multiple men lining up to have sex with a woman.) A12 A4 At one point, 1 A2 A6 , A 11 ~ A4 , A 1 the recmit, A3 and A 12 gathered A2 bearoom. AS was having sex with RS inside the around the open doorway to bedroom. One of the men was turning on and off the bedroom lights. TI1e men were discussing who would have sex with RS next. The men were also "talking and saying things," although A12 does not remember any specific comments or conversations. · At another point, these men were listening to AS and RS engage in sexual contact from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up ... She said something that made it seem like it wasn't the right thing to be doing. They told A2 to get AS out of the room. A2 said, 'no man, she straight.,, A 12 does not recall what RS said that caused this concern. RS later said something else that caused the men concem. She possibly said, "don't send any more people in." A2 then said, "this is the last one." • • Witness-5 - - - - - and RS friend) rep01ted the following: Witness-5 communic~ort time after the night of September 1-2. A4 told A2 bedroom, RS gave him a blowjob Witness-5 over the phone tllat he walked into A4 said that someone had just walked out of the bedroom and that he and then he left. . entered to see what was going on. reported the following: A 1 and A4 were in apartment B while A5 was A1 and A4 left apartment B at some point thereafter and then having sex with RS returned together to get A5 A1 AS A4 and RS left apartment B at the same time. A4 had a conversation with RS as they left 1 A2 • reported the following: After A 1 finished having sex with RS , he went to apartment A . He did not see A4 there. After about ten minutes, A1 returned to apartment B . According to the Police Case Report, A1 stated that A4 was present in apa1tment B when A1 returned. Conversely, A1 told EOAA that ····· A4 was not present in apa1tment B when A1 returned. A 1 reported that he and A5 ultimately left apartment B together. • AS reported the following: A4 left the apartment after having sex with RS not see A4 again that night in apartment B A5 later met up with apartment A A1 41 AS did A4 in • Witness-6 (a football team member) repot-ted the following: He lives in apartment A . A4 A1 and A5 came to apartment A from apartment B in the early morning hours of September 2. A4 !: Analysis and Conclusions l. Credibility RS and A4 accounts of their sexual contact with one another differ markedly. Given the available evidence, it is not possible to reconcile all of the discrepancies. However, we generally find RS account to be more credible for the teasons detaUed in the "Credibility of the Parties" section above, and also because . A4 account is at times inconsistent with credible reports from other accused students and witness~s. For example: • rep011ed that he immediately left apru.1ment B after RS gave him oral sex. He further reported that he did not return to apartment B that night. However, A2 and A 12 reported that A4 remained in apartment B after having sex with RS • RS reported that men crowded around the bedroom door and turned on and off the light while other men had sex with her. A4 denied that this occurred. However, A12 reported that he and six other men, including A4 gathered around the bedroom doorway ''saying things" and turning on and off the lights while RS was having sex with A5 • A4 reported that he did not see A12 in apartment B . However, A12 reported that he entered the living room while A4 and four others were sitting on the couch. • reported that he did not have any conversations with A 1 and A5 about who would A6 rep01ted hearing A1 AS and A4 have sex with RS and in what order. talking about who would have RS next. A4 A4 2. Sexual assault a. One-on-one sexual contact The first issue is whether RS affirmatively consented to oral sex with A4 when she was · alone with him in the bedroom. According to A4 account, RS provided affirmative A4 thigh; (2) asking A4 whether he was going to tum off the consent by: (1) rubbing light; (3) putting her hands inside A4 pants; and (4) taking A4 ?enis in one hand and performing oral sex. In contrast, according to RS account, RS repeatedly told A4 :hat she did not want to have any sexual contact with him. A4 took off his pants, grabbed RS head, led it to his A4 penis and told her something like it would be over soon. RS reported that she gave oral sex, but only because she felt that she had no choice and was unable to leave the situation. According to RS ., she had just experienced a violent sexual assault by A6 Moreover around that time, a crowd of men gathered by the door and began discussing who would have sex 42 with RS next. RS yelled at the crowd that she hated them and that she did not want to have sex with additional people. Ultimately, given our assessment of RS greater credibility, we find it more likely than not that her account of this sexual contact is generally more accurate than A4 Specifically, we find credible and believable RS belief that she needed to give A4 oral sex in order to safely leave the situation, given her prior experience with A6 ., the crowd of men at the door and A4 refusal to accept RS repeated statements that she did not want sexual contact with him. In sum, we find that RS did not willingly give oral sex to A4 and that a reasonable person would have known that she had not consented. b. Grot'!p sexual contact 1l1e second issue is whether A4 had another sexual encounter with RS and, if so, whether RS affirmatively consented to this additional sexual contact. A4 denied that he engaged in any sexual encounter with RS other than the oral sex described above. However, the following evidence indicates that A4 A1 and AS together engaged in a sexual encounter with RS A: First) RS reported in significant detail that AS ·and two unknown men had sex with her simtlltaneously. In particular, she reported that A1 A5 and one unknown man took turns putti'ng their penises in her mouth while the other unknown man had vaginal intercourse with her. She rep01ted that A 1 then had sex with her alone, possibly while others were in the room, and that A5 then had sex with her alone. A2 bedroom together, leaving A5 Second, A12 reported seeing A1 and A4 exit to have sex with RS alone in the bedroom. A12 understood that all three men had just been in the bedroom with RS together. This report is consistent with RS account, in which A5 A1 and others had sex with her simultaneously, then A1 had sex with her while others (such as l A4 and AS) were possibly in the bedroom, and then A5 had sex with her alone. Third, A2 sent a message to the Empire group at 4:17am stating: <'Damn A10 all 3 them A2 explained to n****s hitting rn." ("Rn" is generally an abbreviation for "right now.") EOAA that he addressed the message to A 10 ' because A 10 , had just left the apartment. A2 further explained that the three men in his message referred to A 1 A5 and _ A4 but that he was "amplifying" and that these three men did not actually have sex with RS . at the message to be that : A 1 same time. However, we tlnd the more plausible meaning of • A2 A5 and : A4 were having sexual contact with RS at the same:; umc:;. Finally, many of the accused students' accounts to the police and EOAA about A1 A4 are particularly contradictory. .For example: A5 and 1. Accounts differ about the order in which AS ·, A 1 and A4 had 'sex with RS According to the Police Case Report, A2 reported the following order in which these three men had sex alone in the bedroom with RS :: A1 . : A4 AS Jn contrast, A2 r~ported to EOAA that he did not know whether A 1 or A4 had sex with 43 RS first. According to the Police Case Report, A5 reported that he had sex with RS "after A4 ,, A5 reported a different order to EOAA: A4 A1 A5 2. Accounts differ about whether A4 ' and A1 left the bedroom by themselves or together - A1~ reported that A1 and A4 left the bedroom together while A5 remained in the bedroom and had sex with RS :, A4 reported that he left the bedroom alone after having sex with RS and did not reenter the bedroom. A1 reported that he left the bedroom twice: first leaving A4 inside the bedroom to have sex with RS and later leaving the bedroom alone after he had sex with RS , at which point A4 was no longer in apartment B . 3. Accounts differ about whether A4 , A1 and AS remained in apartment B after having sex with RS - A 1 reported leaving apartment B after having sex with RS and returning only after AS had finished having sex with RS However, A3 -) A2 ., A12 and A11 each repotted seeing A1 in apattment B during the time period when AS was having sex with RS A4 reported that he immediately )eft apartment B after RS gave him oral sex and that he did not return to apartment B that night. However, A2 and A12 reported that A4 remained in apartment B after having sex with RS According to the Police Case Report, A1 stated that he saw A4 in apartment B after he and AS had both finished having sex with RS However, A1 conversely told EOAA that, after he had sex with RS :, he did not see A4 again that night in apartment B . AS repmted that he left apartment B immediately after having sex with RS '· A6 reported that AS was still in apattment B when RS left. A5 and A4 ultimately left apartment B 4. Accounts differ about whether A1 together -- A1 reported that he left the apartment for the last time that night with AS AS reported leaving the apartment alone. A4 also repotted leaving the apartment alone. A2 reported that A1 , AS and A4 left the apartment together at the same A6 reported that A1 and AS remained in the apartment when time as RS RS lefl Together, these conflicting accounts about the conduct of A1 AS and : A4 suggest that they and other accused students attempted to conceal information about these three men's conduct that night. Given the totality of this evidence, we find it more likely than not that A1 A5 and : A4 had sexual contact with RS at the same time, and that · A4 either forced RS to give him oral sex or to have vaginal intercourse dllling this group sexual contact. RS reported that she did not consent to this sexual encounter in any way. She further repmted that the men were forceful and responded to her pleas that she was in pain and that she wanted to stop by flipping her into a different position, telling her that it would be over soon and/or using m01·e force. Given that significant portions of RS account align with the other evidence described above, and our 44 general assessment of RS credibility as described in the "Credibility of the Parties" section above, we. find her account of this sexual encounter to be credible. 14 3. s·exual harassment A2 bedroom door with other accused The evidence indicates that A4 crowded around students to watch RS engage in sexual conduct. Multiple accused students reported that A4 remained in apartment B after he received oral sex with RS in contrast to A4 own report that he left apartment B . A 12 reported that A4 was among the men watching RS sexual contact with AS from the bedroom do01way. We understand that A4 ienies this conduct. However, based on the numerous discrepancies in A4 reports to EOAA, as well as our assessment in the "Credibility ofthe Parties" section above, we find his denial to be not credible. We find that this conduct violated the University's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS :: (1) unreasonably intelfering with RS academic performance; (2) unreason~ bl interferin with RS : participation in University a,ctivities, including her participation and (3) creating an intimidating, hostile and offensive environment for on campus and off~ campus in her participation We do not detail the specific impacts on RS in order to preserve her 4. Conclusions In conclusion, we fmd that A4. violated the following University policies: 1. Administrative Policy: Sexual Harassment; 2. Administrative Policy: Sexual Assault. Stalking and Relationship Violence (sexual a')sault provision); 3. Board of Regents Policy: Student Conduct c;ode, Section IV: o Subdivision 6 (Harm to Person). We find that A4 violated this Subdivision .by engaging in harassing and assaulting behaviol' that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A4 violated the sexual harassment and sexual assaqlt portions of this Subdivision. o Subdivision 19 (Violation of University Rules). We find that A4 . violated the Administrative Policies: Sexual Assault, Stalking and Relationship Violence a11d Sexual Harassment. 14 We also considered RS report that four men participated In this sexual encounter. However, we were unable to identify any other participant. 45 v. A1 Evidence gathered from . A1 and others 1. A1 reported the following: Ai is a second~year member of the University's football team. Ai lives in the Rail apartment building. After the first football game, A1 spent time in his apartment. He then went to apattment A in the Radius. After about twenty minutes in aprutment A , A1 received a Facetime call from A2 . · A2 said that he and the rec1uit had just finished having sex . A2 did not invite A1 to his apartment. However, A1 was curious and decided to visit A2 apmtment. As A 1 left apartment A , he ran into A5 and A4 The three men went to apm'lment B together. A1 did not tell them that a woman in apartment B had just had. sexual contact with A2 and the recruit. Upon arriving in apartment B , A1 saw · A2 walking down the hallway away from his bedroom and toward the living room. A2.. bedroom light was on. A6 and A10 , were inside A2 bedroom with RS A1 bad previously met RS on two occasions. RS was sitting on the bed and talking to the men. She was having a normal conversation and laughing. She did not seem scared, intoxicated, confused or upset. RS was wrapped in a blanket and A1 could tell that she did not have clothes on. At some point, RS added A1 as a Snapchat friend by positioning her phone's camera over A1 phone's screen. A1 does .not recall anyone holding RS phone other than her. : A1 did not call RS "my baby girl." A1 does not remember RS asking how long she had been in the bedroom. and A 10 · left the bedroom, possibly at the same time. A 1 and A5 l~ft the bedroom next. No one told A1 that RS was willing to have sex with more men. A1 did not have any conversations with other men about who would have sex with RS and in what order. However, A1 was hoping to have sex with RS next. He went into A6 bedroom and got a _condom. At no point did: A1 leave the apartment to get condoms. A6 was alone in the bedroom with RS with the door closed for around two minutes. A1 entered the bedroom after A4 left. RS appeared excited to see A1 She did not seem confllsed or npset. RS said, "l A1 I always wanted to fuck you but you were always fucking [your ex-girlfriend]." A1 replied that he was not with his ex-girlfriend now. RS told A1 to tum off the light. A1 did so and then walked to the bed. RS pulled his pants down to his ankles. While A 1 was standing up, RS sat on the edge of the bed and gave A1 oral sex. She held his penis with one hand and put her other hand on his leg. A1 was not wearing a condom. A4 A 1 ended oral sex and said that he wanted to have vaginal sex. RS asked whether he had a ~ondom. A1 then had vaginal sex with RS from mi top of her while wearing a condom. A1 hands were on the bed, and not on RS anns or shoulders. A1 then had vaginal sex with RS from behind her, with RS on her hands and knees. When asked whether he would describe the sex as fast, rough or hard, A1 responde4 that it was "hard." RS moaned at times 46 dUling this sexual encounter but did not say anything. She also grabbed his arms and back while he had vaginal sex from on top of her. RS did not do anything that made A1 think that she did not want this sexual activity. While A1 was in the bedroom with RS '• he could hear people in the hallway outside of the bedroom door. After the sexual contact ended, A1 left the bedroom. He had been in the bedroom alone with RS for around 10 minutes. He and RS ' did not have any further conversation or anv other sexual encounters. A1 went into the bathroom to dispose of his condom. He saw A3 in the hallway near the living room, but no one else. A1 then left apartment B and went to apartment A . After about ten minutes, A1 returned to apartment B for some reason that he cru.mot remember. When A1 reentered apa1tment B , AS was leaving A2 bedroom. A3 and A2 were talking in the hallway. A1 and AS then left apartment B together. A1 returned to his apartment at the Rail apartment building. While A1 was in apartment B , RS never asked about her clothes or tried to retrieve her A2 told anyone to stop sending people into the room or clothes. RS never asked to see told anyone that she hated them. No men repeatedly turned on and off the bedroom lights or repeatedly opened and shut the bedroom door. No men yelled things into the bedroom while RS was having sex, cheered for men having sex with RS or discussed who would have sex with RS next. : A1 reported other information about RS alleged sexual activity prior to September 2, which EOAA considered and found to be not relevant to the question of whether any of the accused students' conduct on September 2 violated University policy. 15 2. A1 statements to the police The Police Case Report's summary of A1 statements differs from the statements that A1 ° made to EOAA in the following ways: First, according to the Police Case Report, A1 reported that someone in apartment B told him that RS was "(down with it,' meaning that she was willing to have sex with others.'' When speaking with EOAA, A1 reported that no one told him that RS was <(down with it" or wilJing to have sex with more men. Second, according to the Police Case Report, : A1 reported that he "dropped his pants" after RS began to rub his lower leg. When speaking Wlth EOAA, A 1 repmted that RS pulled his pants down to his ankles. 3. Witnesses reported the ~ollowing relevant information related to A1 15 EOAA asked RS whether the events described by A1 occurred. RS denied the portions of A1 account that are within her scope of knowledge and that differ from her account provided above. For example, RS denies stating that she had always wa~ted to have sex with A1 having any conversations about using a condom and pulling down A 1 pants. 0 0 47 • reported the following: When A12 arrived at apartment B , he saw A 1 and leaving A2 bedroom. A1 and A4 joined A2 A6 ., A 11 ., and the l'ecruit on the living room couch. A 12 understood that A5 was still in the bedroom A 12 believes that A1 A4 and A5 had just been in the bedroom with with RS RS together. Someone told A 12 that they were "training her, and that she had agreed. ("Training her" appears to refer to "running a train," or multiple men lining up to have sex with a woman.) A12 A4 At one point, A2 A6 ., A11 :, A4 A1 the recruit, A3 :tnd A 12 gathered around the open doorway to A2 bedroom. A5 was having sex wjth RS inside the bed!'Oom. One of the men was turning on and off the bedroom lights. The men were discussing who would have sex with RS ' next. The men were also "talking and saying things," although A12 does not remember any specific comments ot· conversations, At another point, these men were listening to A5 and RS engage in sexual contact from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up ... She said something that m.ade it seem like it wasn't the right thing to be doing. They told A2 to get A5 out of the room. A2 said, 'no man, she straight.'" A 12 does not recall what RS said that caused this concern. RS later said something else that caused the men concern. She possibly said, "don't send any more people in." A2 then said, uthis is t~e last one." A6 reported the following: When A6 left the bedroom, A1 A5 and : A4 were in the hallway talking about who would have sex with RS next. At some point, A1 and AS briefly left apartment· B to get some condoms. • Witness-3 reported the following: While in apruiment A after the first football game, Witness-3 witnessed A 1 receive a brief Facetime call. Witness-3 understood from the call that someone was : A1 left apartment A shortly.afterwards. • A 12 and A 11 reported that A1 was present in apartment B during the time period when A5 was alone with RS in the bedroom. A3 A1 I A2 I Analysis and Conclr~sions 1. Credibility RS and : A1 accounts of their sexual contact with one another differ markedly. Given the available evidence, it is not possible to reconcile al.l of the discrepancies. However, we generally account to be more credible for the reasons d~tailed in the "Credibility of the find RS Parties" section above, and also because A1 account is at times inconsis~ent with credible reports from other accused students and witnesses. For example: 48 • A1 reportedly told the police that: (1) he took off his own pants before RS gave him oral sex; and (2) that someone in apartment B informed him that RS was willing to have sex with others. Conversely, in his interview with EOAA, A1 - denied both ofthese facts. • RS reported that men crowded around the bedroom door and turned on and off the light while other men had sex with her. A1_ denied that this occurred. However, A12 reported that he and six other men, including A~ ga"\hered around the bedroom doorway "saying things'' and tt.uning on and off the lights while RS was having sex with AS • A1 denied being in apartment 8 while AS was alone in the bedroom with RS However, A3 A2 A 12 and A 11 each reported seeing A 1 in apartment 8 during this time period. • A1 repotted that he did not see A12 in apartment B that night However, A12 reported seeing A1 there. According to reports from accused students, there were only around ten people in the apartment at the time, so it is unlikely that: A1 would not have seen A12 :, 2. Sexual assault a. One-on-one sexual contact A! during their one-on-one sexual encounter. According to A1 account, RS provided affirmative consent by: (1) telling A1 that she had always wanted to have sex with. him; (2) telling A1 to turn off the bedroom hghts; (3) putling down A1 pants and giving A1 oral sex; and (4) grabbing his arms and·back while he was having vaginal sex from on top of her; and (5) moaning at times during vaginal sex. The ftrst issue 1s whether RS · affirmatively consented to oral and vaginal sex with In contrast, according to RS : account, A1 had rough, hard, fast and painful vaginal sex with her. RS repeatedly asked him to stop, but he responded by dismissing her pleas, flipping her into another position and becoming more forceful. A1 held RS down by her shoulders and upper arms ·while he had vaginal sex tl·om on top of her. RS does not recall giving A1 oral sex during their one-on-one sexual encounter. Ultimately, given our assessment of RS greater credibility, we find it more likely than not that her account of the vaginal intercourse is generally more accurate than A1 Specifically, we find it likely that RS pled for A1 to stop the sexual contact and that he responded by holding her down and using more forc.e. Given this, we find that RS did not affirmatively consent to vaginal intercourse with : A1 b. Group sexua[ contact . The second issue is whether A1 engaged in a group sexual encounter with RS and other rnen, and, if so, whether RS afiirmatively consented to this sexual contact. A1 denied that he engaged hl any sexual encount~r with RS other than the oral and vaginal sex describe<;l above. 49 However, the following evidence indicates that sexual encounter with RS :. A4 A 1 and A5 together engaged in a First, RS . reported in significant detail that A1 • A5 and two unknown men had sex with her simultaneously. In pa1ticulru:, she reported that A~ A5 and one unknown man took turns putting their penises in her mouth while the other unknown man had vaginal intercourse with her. She reported that A1 then had sex with her alone, possibly while others were in the room, and that A5 then had sex with her alone. Second, A12 reported s~eing A1 and A4 exit 1 A2 bedroom together, leaving A5 to have sex with RS alone jn the bedroom. A12 understood that all three men had just been in the bedroom with RS together. This report is consistent with RS accmmt, in which A5 ·, A1 and others had sex with her simultaneously, then A1 had sex with her while others (such as A4 and A5 ) were possibly in the bedroom, and then A5 had sex with her alone. Third, A2 sent a message to the Empire group at 4:17am stating: "Damn A10 all 3 them n****s hitting rn." 16 A2 explained to EOAA that he addressed the message to A10 because he had just left the apartment. A2 further explained that the three men in his message refened to A1 A5 and A4 but that he was "amplifying" and that these three men did not actually have sex with RS at the same time. However, we find the more plausible message to be that A1 , A5 and A4 were having sexual contact with meaning of• A2 RS at the same time. Finally, many of the accused students' accounts to the police and EOAA about A1 A4 are particularly contradictory. For example: A5 and 1. Acco1,Ults differ about the order in which A5 , : A1 and A4 had sex with RS According to the Police Case Report, A2 reported the following order in which these A4 1 A5 In contrast, three men had sex alone in the bedroom with RS .: A 1 A2 reported to EOAA that he did not know whether. . A1 or A4 had sex with RS first. According to the Police Case Report, A5 reported that he had sex with RS "after A4 ' A5 reported a different order to EO AA: A4 , A 1 A5 2. Accounts differ about whether A4 and A 1 left the bedroom by themselves or together - A 12 reported that A 1 and A4 left the bedroom together while A5 remained in the bedroom and had sex with RS A4 reported that he left the bedroom alone after having sex with RS and did not reenter the bedroom. A1 reported that he left the bedroom twice; first leaving : A4 inside the bedroom to have sex with RS and later leaving the bedroom alone after he had sex with RS ., at which point A4 was no longer in apartment 8 . 3. Accounts differ about whether A4 , A1 and A5 remained in apartment 8 after having sex with RS - A 1 reported leaving apartment 8 . after having sex with RS and returning only after A5 had finished havi11g sex with RS '· However, A2 16 "rn'; is generally an abbreviation for "right now." 50 A2 A 12 and A11 each reported seeing A1 in apartment B during the time period when AS was having sex with RS '· reported that he immediately left apartment B after RS gave him oral sex and A2 and A12 that he did not return to apartment B that night. However, reported that A4 remained in apartment B after having sex with RS :. According to the Police Case Report, A1 stated that he saw A4 : in apartment B after he and AS had both finished having sex with RS :, However, A 1 conversely told EOAA that, after he had sex with RS :, he did not see A4 ' again that night ~n apartment B . A4 AS reported that he left apartment B immediately after having sex with A6 reported that AS was still in apattment B when RS left. RS :, 4. Accounts differ about whether A1 AS and A4 ultimately left apartment B together - A 1 rep01ted that he left the apru.tment for the last time that night with AS AS reported leaving the apartment alone. A4 also rep01ted leaving the apartment A2 reported that A1 AS and l A4 left the apartment together at the same alone. A6 rep01ted that : A1 and AS remained in the apartment when time as RS :. RS Left. 4 Together, these conflicting accounts about the conduct of: A 1 . AS and A suggest that they and other accused students attempted to conceal information about these three men's conduct that night. Given the totality of this evidence, we find it more likely than not that A1 AS and : A4 had sexual contact with RS at the same time, and that A 1 forced RS to give him oral sex during this sexual contact. RS reported that she did not consent to this sexual encounter in any way. She further reported that the men were forceful and responded to her pleas that she was in pain and that she wanted to stop by Oipping her into a different position, telling her that it would be over soon and/or using more force. Given that significant portions of RS account align with the other evidence described above, and ·our general assessment of RS credibility as described in the "Credibility of the Pmties" section above, we find her account of this sexual encounter to be credible. 17 3. Sexual harassment The evidence indicates that A1 crowded around 1 A2 bedroom door with other accused students to watch RS engage in sexual conduct. In contrast to J A1 own rep01t, multiple accused students reported that A1 remained in apattment B for some period after having sex with RS :. A12 reported that: A1 was among the· men watching RS sexual contact with AS from the bedroom doorway. We understand that A1 denies this conduct. However, based on the numerous discrepancies in A1 reports to EOAA, as well as our assessment ill the "Credibility of the Parties" section above~ we find his denial to be not credible. 17 We considel'ed RS report that four 111en participated in this sexual encounter. However, we were unable_to identifY any other participant. 51 We find that this conduct violated the University's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS :: (1) unreasonably academic performance; (2) unreasonably · with RS interfering with RS participation in University activities, including her and on campns and off(3) cl'eating an intimidating, hostile and offensive environment for campus in her participation We do not detail the specific impacts on RS in ordet' to preserve her privacy. 4. Conclusions In conclusion, we find that: A 1 violated the following University policies: 1. Administrative Policy: Sexual Harassment; 2. Administrative Policy: Sexual Assault, Stalking and Relationship Violence (sexual assault provision); 3. BoardofRegents Policy: Student Conduct Code, SectioniV: Subdivision 6 (Harm to Person). We find that A1 violated this Subdivision by engaging in harassing and assaulting behavior that endangered RS physical . and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A1 violated the sexual ha1·assment and sexual assault portions of this Subdivision. o Subdivision 19 (Violation University Rules). We find that A 1 violated the Administrative Policies: Sexual Assault, Stalking and Relationship Violence and o of Sexual Harassment. 52 VI. A5 Evidence gathered from A5 and others 1. A5 reported the following: a second-year member of the University's football team. AS lives with A4 and another football team member in the Marshall apartment building. At some point after the first football game, A5 and A4 ! visited fellow football players in aprutment A of the Radius. A5 A4 left apattment A after about fifteen minutes, and planned to head back to their apartment. As A5 and : A4 left apartment A , they ran into : A1 . A1 said A2 apartment, and A5 and A4 decided to accompany that he was going upstairs to A2 room. A 1 did not say that there was a him. AS thought there might be a party in sexual encounter occurring in A2 room, and AS did not otherwise know this. A5 is A9 When AS entered apartment B • he saw A2 in the apattment's hallway. He also saw A 10 talking to someone in A2 bedroom. AS ·, A4 and : A 1 peeked into the bedroom. A woman (who A5 later learned was RS ) was in the bed wrapped in a sheet and holding her phone. AS could tell that she did not have any clothes on. Her clothes were on the floor more than an arm's reach from the bed. RS recognized A1 and said his name. She asked who the other men were, and A5 and A4 introduced themselves. RS did not appear to be drunk. She acted "normal" and had a regular conversation with A5 and the other men. A 10 , left the bedroom. Soon after, A5 left the bedroom and joined A 10 . and A2 m the living room area. A2 said that RS that he had met in apartment A A2 said that he and the recruit had had sex with RS ~. No one told A5 that RS was willing to have sex with him or other men. A5 did not have any conversations with A1 A4 or others about who else would have sex with RS and jn what order. A5 watched television for a while in the living room. A4 was the bedroom alone with RS :. He came out around five minutes later and left the apattment. A1 then entered the bedroom and had sex with RS :. A 1 then left the apartment. AS could not hear what was happening in the bedroom during this time period. A5 never left the aprutment to get condoms. AS then entered the bedroom and RS said his name. The lights were on and RS was lying on the bed. RS engaged in normal conversation. She did not appeat· upset or confused. She was not smiling but she "lit up" when she said his name. At some point, A5 shut the bedroom door. RS said that A5 could not have sex with her unless he wore a condom. A5 then asked RS for oral sex, and' RS sald yes. A5 stood by the bed. While lying on the bed, RS . used her hands to guide his penis jnto her mouth. RS gave him oral sex for around five minutes, while grabbing onto his hips. During. this time, A5 hands were on top of her head. A5 ended the oral sex without ejaculating. He then put on a condom ·fi:om his wallet. RS rolled from her side to her back. Neither spoke. A5 knew that RS wanted to have vaginal sex because she had said that they could. have sex so long as he used a con~m, and because 53 RS turned onto her back after completing oral sex. AS began having vagina] sex from on top of RS '· His hands were on the bed. RS was not speaking. Then, A5 had vaginal sex with RS from behind her, with RS on her hands and knees. AS removed his penis from RS vagina and removed the condom just prior to ejaculating. He then ejaculated onto her bottom. AS then began to get dressed. RS asked him to turn on the light, which he did. RS got out of bed, retrieved her clothes and began to put them on. RS . told A5 to "hit her up." AS understood this to mean that he should contact her. AS responded that they were already following one another on lnstagram. ( A5 repo1ted to EOAA that he had never met RS before that night and did not know how they had come to follow one another on Instagram.) RS responded that he should contact her through Instagram. By this point, RS was fully dressed. AS did not see any condom wrappers or used condoms on the floor or elsewhere in the bedroom. AS left the bedroom. AS and RS had been in the bedroom alone together for 10-15 minutes. During that time, RS did not say or do anything that indicated that she did not want to engage in these sexual activities. No one else entered the bedroom during that time. AS did not have any other sexual encounters with RS :. While AS was in apartment B , there were never men standing near the doorway to the bedroom. RS never asked about her clothes or tried to retrieve her clothes. RS never asked to see A2 told anyone to stop sending people into the room or told anyone that she hated them. No men repeatedly turned on and off the bedroom lights or repeatedly opened and shut the bedroom door. No men yelled things into the bedroom while .RS was having sex, cheered for men having sex with RS or discussed who would have sex with RS next. After leaving the bedroom, AS flushed his condom down the toilet. A5 saw A2 in the hallway and told him that he was about to leave. AS then left the apartment and returned to A4 He and A4 then returned together to their apartment at th.e apartment A to find Marshall apartment building. When AS retumed to his apartment, he messaged RS through Instagram as she had requested. He asked for her phone number. I-Ie was sul'prised that RS responded curtly to his message because he had ex:pected that she would respond by messaging him her phone number. 18 2. AS statements to the police The Police Case Report's summary of AS statements differs from the statements that AS made to EOAA in the following way. According to the Police Case Report, A5 reported that A4 '' When speaking with EOAA, he entered the bedroom and had sex with RS "after AS Ieported that he had sex with RS after A1 had sex with RS 3. Witnesses reported the following relevant information related to AS 18 EOAA asked RS whether the events described by AS occurred. RS denied the portions of AS account that are within her scope of knowledge and that differ from her account provided above .. For example, RS denies stating that she would have sex with AS if he used a condom. 54 • reported the following: When A12 artived .at apartment B , he saw A1 and leaving A2 bedroom. A1 and A4 joined A2 .· A6 ., A11 ., and the recruit on the living room couch. A12 understood that AS was still in the bedroom with RS A 12 understood that A1, A4 and AS had just been in the bedroom with RS together. Someone told A 12 that they were "training her" and that she had agreed. ("Training her" appears to refer to "running a train," or multiple men lining up to have sex with a woman.) A12 A4 A 12 entered A2 bedroom while AS was having vaginal sex with RS from on top of her. The lights were turned off. RS saw A12 and then said, "I don't want to" and "this is too many people" and "don't send people in here." RS repeatedly said that she was in pain. A5 did not respond by stopping or changing his activities. A12 reported that it did not look like A5 was doing anything out of the ordinary with RS A12 did not think tl1at RS . was trying to physically push AS away. A12 ultimately concluded that "it didn't feel right , .. Sometimes it didn't seem like she was into it." A12 left the bedroom after about twenty seconds. At one point, . A2 A6 ., A 11 ~ : A4 , : A 1 , the recruit, A3 and A 12 gathered a1·ound the open doorway to A2 bedroom. As was having sex with RS inside the bedroom. One of the men was turning on and off the bedroom lights. The men were discussing who would have sex with RS next. The men were also «talking and saying things,'' although A12 does not remember any specific comments or conversations. At another point, these men were listening to A5 and RS engage in sexual contact from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up . . . She said something that made it. seem like it wasn't the right thing to be doing. They told A2 to get AS out of the room. A2 said, 'no man, she straight.'" A 12 does not recal~ what RS . said that caused this concern. RS . later said something else that caused the men . concem. She possibly said, "don't send any more people in." A2 then said, "this is the last one." • reported the following: When A6 left the bedroom, A1 AS and A4 were in the hallway talking about who would have sex with RS next. At some point, A1 and AS briefly left apartment B to get some condoms. A5 remained in apartment B at the time that RS left. • Witness-7 (football team member) reported the following: Witness-? heard from someone (who he could not recall) that RS had been saying "no" when AS was alone in the room with her. A6 AS : Analysis .and Conclusions 1. Credibility 55 and AS accounts of their sexual contact with one anothe1· differ markedly. Given the available evidence, it is not possible to reconcile all of the discrepancies. However, we generally find RS account to be more credible for the reasons detailed in the "Credibility of the Parties'' section above, and also because AS account is at times inconsistent with: (1) his own account; or (2) credible reports from other accused students and wit11esses. For example: RS • AS reported that he did not have any conversations with A1 and : A4 about who would A6 reported hearing A1 . AS and A4 have sex with RS and in what order. talking about who would have sex with RS next. • AS reported that no one entered the bedroom while he was having sex with RS ., and that RS never expressed that she did not want to have sex with any more people. A12 reported that he entered the bed!'oom while AS was having sex with RS '• and that RS expressed that she did not want to have sex with any more people. • According to the Police Case Report, AS reported that he entered the bedroom and had sex A4 AS told EOAA that he had sex with RS after · A 1 had sex with RS "after with RS :, • AS denied that men eve.r gathered around the bedroom doorway or turned on and off the bedroom lights. However, A12 reported that he and six other men gathered around the bedroom doorway "saying things" and turning on and off the lights while RS was having sex with AS 2. Sexual assault a. Onewon-one sexual contact The first issue is whether RS affil'matively consented to oral ~nd vaginal sex with AS dtu·ing their one-onwone sexual encounter. According to AS account, RS provided affirrpative consent by: (1) stating that they could not have sex unless he wore a condom and then responding "alright'' after he said he would wear one; (2) responding "yes" to AS request for oral sex; (3) giving AS oral sex; and (4) turning onto her back after oral sex to indicate a willingness to engage in vaginal sex. In contrast, according to RS account, AS forced her to engage in oral and vaginal intercourse. He forced her to perform oral sex by puJling hard on her hair to control her head. RS tried to push AS off of .her dtll'ing -vaginal sex and, in doing so, l'ipped his condom. However, AS shoved his penis back into RS vagina with the ripped condom still on and resumed rough sexual intercourse. A12 reported that he. entered · A2 bedroom a1-id heard RS repeatedly say that "it hurt" A12 further reported that, "it didn't while AS was having vaginal intercourse with her. seem like she was into it." A12 also reported hearing RS make other comments indicating that she did not want to be having sexual contact with AS 56 Moreover, A12 repmted that, while AS was having sex with RS :, a group of men discussed who would have sex with RS next. According to two acc·used .students, at some point while AS was having sex with RS :, A2 stated that AS would be the last person to have sex with RS Multiple witnesses reported that AS was in fact the last man to have sex with RS that night. The fact that other men did not have sex with RS after AS (as they had reportedly been planning) further evidences that RS did or said something while having sex. with AS that led the n1en to conclude that she did not want sexual contact. Ultimately, given this witness testimony, as well as our assessment of RS greater credibility, we find it more likely than not that RS did not affirmatively consent to this sexual contact with AS Moreover, we find that AS used physical force to have this sexual contact with RS and continued the sexual contact despite RS verbal and physical opposition. b. Group sexual contact The. second issue is whether A5 engaged in a group sexual encounter with RS and other men, and, if so, whether RS affhmatively consented to this additional sexual contact. A5 denied that he engaged in any sexual encounter with RS other than the oral and vaginal sex described above. However, the following evidence indicates that A4 , A 1 and A5 together engaged in a sexual encounter with RS First, RS reported in significant detail that A1 A5 and two unknown men had sex with her simtlltaneously. In particular, she reported that A1 A5 and one unknown man took turns putting their penises in her mouth while the other unknown man had· vaginal intercourse with her. She reported that : A1 then had sex with her alone, possibly while others were in the room, and that A5 then had sex with her alone. Second, A12 reported seeing A1 and A4 exit A2 bedroom together, leaving AS to have sex with RS alone in the bedroom. A12 understood that all three men had just been in the bedroom with RS together. This report is consistent with RS a.cco\mt, in which A5 ·, A1 and others had sex with her simultaneously, then A1 had sex with her while others (such as A4 and A5) were possibly in the bedroom, and then AS had sex with her alone. Third, A2 sent a message to the Empire group at 4:17am stating: "Damn A10 all 3 them A2 explained to EOAA that he addressed the message to A10 . n****s hitting rn.'' 19 because A10 . had just left the apartment. A2 further explained that the three men in his message referred to A 1 , A5 and A4 but that he was "amplifying" and that these three men did not actually have sex with RS at the same time. However, we find the more plausible meaning of ' A2 message to be that A1 A5 and A4 were having sexual contact with RS at the same time. Finally, many of the accused students' accounts to the police and EOAA about A1 A4 are particularly contradictory. For example: · 19 "rn" is generally an abbreviation for "right now." 57 A5 and 1. Accounts differ about the order in which AS ·, A1 and : A4 had sex with RS According to the Police Case Report, A2 reported the following order in which these AS In contrast, three 1nen had sex alone in the bedroom with RS :: A1 , A4 A2 repolied to .EOAA that he did not know whether A1 or A4 had sex with RS first. According to the Police Case Report, AS reported that he had sex with RS «after A4 " AS reported a different order to EOAA: A4 A1 AS A4 and A1 left the bedroom by themselves or together- A12 repotted that A1 and A4 left the bedroom together while AS remained in the bedroom and had sex. with RS :. A4 reported that he left the bedroom alone after having sex with RS and did not reenter the bedroom. A 1 reported that he left the bedroom twice: first leaving A4 inside the bedroom to have sex with RS and later leaving the bedroom alone after he had sex with RS ., at which point A4 was no longer in apartment B . 2. Accounts differ about whether 3. Accounts differ about whether A4 . A1 and AS remained in apartment B after having sex with RS - A1 reported leaving apartment B after having sex with RS and returning only after AS had finished having sex with RS :, However, A3 A2 A 12 and A 11 each repotied seeing : A 1 in apartment B during the time period when AS was having sex with RS A4 reported that he immediately left apartment B after RS gave him oral sex and A2 and A12 that he did not return to apartment B that night. However, reported that A4 remained jn apartment B after having sex with RS :. According to tlic Police Case Report, A1 stated that he saw A4 in apartment B after he and AS had both finished having sex with RS :, However, A1 conversely told EOAA that, after he had sex with RS ., he did not see : A4 again that night in apartment B . AS teported that he left apartment B A6 immediately after having sex with reported that AS was still iJ.?. apartment B when RS left. RS 4. Accounts differ about whether A1 . AS and A4 . ultimately left apartment B together - A1 reported that he left the apartment for the last thne that night with AS ·. A5 reported leaving the apartment alone. A4 :tlso reported leaving the apartment A2 reported that: A1 , AS and: A4 left the aprutment together at the same alone. A6 reported that A1 and AS remained in the aprutment when time as RS . RS left. Together, these conflicting accounts about the conduct of: A1 AS and A4 suggest that they and other accused students attempted to conceal information about these three men's conduct that night. Given the totality of this evidence, we find it more likely than not that : A1 , AS and ·A4 had · sexual contact with RS at the same time, and that AS forced RS to give him oral sex during this group sexual contact. RS : reported that she did not consent to this sexual encounter in any way. She further reporte~ that the men were forceful and responded to her pleas tJ:at she was in 58 pain and that she wanted to stop by flipping her into a different position, telling her that it would be over soon and/or using more force. Given that significant portions of RS account align with the other evidence described above, and our general assessment of RS cre,dibility as described in the "Credibility of the Parties" section above, we find her account of thls sexual encounter to be credible.20 3. Conclusions In conclusion, we find that AS violated the following University policies: 1. Administrative Policy: Sexual Assault, Stalking and Relationship Violence (sexual assault provision); 2. Board of Regents Policy: Student Conduct Code, Section IV: o Subdivision 6 (Harm to Person). We find that AS violated this Subdivision by engaging in assaulting behavior that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that AS violated the sexual assault portion of this Subdivision. o Subdivision 19 (Violation of University Rules). We find that AS violated the Administrative Policy: Sexual Assau!~ Stalking and Relationship Violence . . 20 We considered RS report that four men participated in this sexual encounter. However, we were unable to · identify any other participant. 59 A1 VII. Evidence gathered from I. A 12 A12 and others reported the following: is a first-year member ofthe University's football team. He Jives in apartment number A7 and two other football team members. On the night of the first football game, A12 was·responsible for hosting the recruit. After the game, A12 and the recruit went to a party in apartment 325 in the Radius where some of his teammates live. There . were many football players and girls present, . A12 A in the Radius with At some point, A12 told his teammate A2 to "watch the rec1uit" while A12 retrieved something fi:om his mom. When A12 returned to apartment 325, A2 and the recruit A12 believes that he stayed in apartment 325 for a while and then were no longer there. returned to apartment A . ( A12 initially reported that he «may have" returned to apartment A , but later rep01ted that he did return to apartment A .) A12 did not see A2 in visited apartment A that apartment A that evening. He did 110t recall night. However, after being shown a picture of A2 , RS and the recruit on the couch in his apartment, he acknowledged that they must have been present. At some point, A2 sent a message to the Empire messaging group (which A12 is part of) A2 apartment with a girl. In apartment stating that A2 and the recruit had gone to A , men discussed A2 message and considered going to A2 apartment. However, A12 does not recall which men took part in this discussion. A12 and A3 went to A2 apartment to find the recruit. When they arrivedJ A 1 and· A4 were exiting A2 bedroom. At that time, the door to A2 bedroom was closed. A2 , A6 ., A 11 :, A4 , : A1 and the recruit sat on couches in the living room. A12 understood that A5 was in the bedroom with a woman A4 and A5 had just been (who he later learned was RS :). A12 understood that: A1 in the bedroom with RS together. A 12 understood that A2 and the recruit had also had sex with RS J. Someone told A12 that they were "training her" and that she had agreed. ("Training her, appears to refer to "running a train," or-multiple men lining up to have sex with a woman.) A12 said that he wanted to go into the bedroom next with RS :, He and A3 peeked in the bedroom door. The lights were tumed off. AS and RS : were having vaginal sex. A5 was on top of RS •. A12 had never met RS before. A12 entered the bedroom. RS saw A12 and said, "I don't want to" and "this is too many people, and "don't send people in here., RS repeatedly said that, "it hurt." AS did not respond to RS . statements by stopping or changing his activitie_s. A12 repmted that it did not look like A5 was doing anything out of the ordina1y with the woman. A12 did not think that the woman was trying to physically push A5 away. A12 does not recall seeing condoms on the floor and plastic dresser. 60 A12 was in the bedroom for around 20 seconds. A12 denied that he took off his clothes and received oral sex from RS at any point. A12 reported that he did not engage in any sexual activity with RS because "it didn't feel tight. [He] just felt like it was not okay. Sometimes it didn't seem like she was into it.'~ · At one point, A2 A6 ., A11 :, A4 , A1 the recruit, A3 and A12 gathel'ed A2 bedroom. AS was hav.ing sex with RS inside the around the open doorway to bedroom. The men were "talking and saying things," although A12 does not remember exactly what. Someone was turning on and off the. lights. The men were "lining up" to determine who would have sex witb RS next. At another point, these men were listening to AS and RS have sex from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided jt was messed up ... She said something t11at made it seem like it wasn't the right thing to be doing. The men told< A2 to get AS out of the room. A2 said, 'no man, she straight."' A 12 did not recall what RS said that caused this concern. After RS . said something else tbat caused them concern (possibly her saying don't send any more. people in), A2 said, "this is the last one." A3 A12 and the recruit left the apattment while AS was still having sex with RS :. A 12 and the recruit returned to A12 apartment and did not go anywhere else that night. 2. A 12 messages to the Empire messaging group A12 sent messages to the Empire group relatjng to RS on the night of September 1-2. We do not know exactly when A12 sent these messages. AJ:ound 3:17am, A2 wrote to the E1npire messaging group about RS :, "Me and the recruit finna double team tbis bitch." A12 then wrote, "Say·you swear." A2 then wrote, " A12 this your recruit right." Sometime between 3:17 and 3:25am) A12 then wrote, "Yeah where yall at." 3. Witnesses reported the following relevant information related to A12 • A3 reported the following: A3 entered and left apartment B with A12 A3 does not remember seeing the recruit in apartment B . The recruit did not leave at the same time as A3 and A12 '· • A2 reported the following: A2 . only spent time with the recruit in apartment A and B . He did not see or spend time with the recruit in apartment 325. A2 A3 and other witnesses repmted information indicating that the recruit left apartment B shortly aftel' he had sex with RS . and did not retum to apa1tment B . • A7 reported the following: A12 told A7 that he wentto apartment B during the early hours of September 2, saw that men were "messing around with the girl and this doesn't look right," and then left apartment B . . 61 A12 : Analysis and Conclusions 1. Credibility Given the inconsistencies between A 12 reports and other accused students' repotts relating to the recruit, we find it likely that A12 provided EOAA with inaccurate information about A12 may have the recruit's involvement and whereabouts after the first football game. A12 responsibility and he provided this. inaccurate information because the recruit was feared personal consequences for his lack of supervision of the recruit. However, we found A 12 account to be credible, particularly given that he reported many other portions of detailed information as well as information about hls own conduct that was against his personal interest because it could support a sexual harassment finding. 2. Sexual assault RS reported that A12 entered the bedroom and told her to "do the same thing that A4 got/' which was oral sex. RS reported that she said "no." RS clearly recalls A12 standing h1 front of her with his shirt off. However, she does not recall whether she ultimately had any sexual contact with A12 :, Given RS . report that many men had sexual contact with her that she cannot identify and her strong recollection that A12 did not have a shirt on, we believe it is possible that A12 had sexual contact with RS :, However, we have insufficient evidence to make a finding on this question. 3. Sexual harassment A12 reported that he gathered around A2 bedroom door with other accused students while AS was having sex with RS :. A12 also reported that he entered the bedroom while AS was having sex with RS :, We find that this conduct violates the University's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS :: (1) unreasonably interfering with RS academic performance; (2) unreasonably with RS participation in University activities, including her partici and (3) creating an intimidating, hostile and offensive in her partiCipation RS in order to preserve her 4. Conclusions In conclusion, we find that A12 violated the following University policies: ·1. Administrative Policy: Sexual Harassment; and 2. Board of Regents Policy: Student Conduct Code, Section IV: o Subdivision 6 (Harm to Person). We find that A12 violated this Subdivision by engaging in harassing behavior that endangered RS physical and mental · health, safety and welfare. o Subdivision 8 (Sexual ·Misconduct). We find that A12 violated the sexual harassment portion o.f this Subdivision. 62 o Subdivision 19 (Violation ofUniversity Rules). We find that Administrative Policy: Sexual Harassment. 63 A12 violated the VIU. A7 Evidence gatheredfrom A7 ·and others 1. A7 reported the foilowing: A7 is a first-year member of the University's football team. He lives in apartment A in the Radius with A12 and two other football team members. After the first football game, A7 went to a few parties outside of the Radius with his roommates and the recmit that A12 was hosting. After A 7 returned to apattment A , a few football teammates visited his apartment. visiting his apaltment. He also does However, A7 does not recall AS·, A1 . in his apartment. A7 went to bed not t'ecall seeing A2 shortly after returning to his apattment. does not recall visiting any apartments in the Radius that night, except his own apartment A . has never met or seen RS . A7 did not introduce himself to RS in apartment A . did not visit apartment B that night. He first adamantly denied learning that night that the recruit was having or had sex. However, after learning that EOAA had the Empire messages that A2 sent that night stating that the recruit was having sex, A7 acknowledged that he read those messages and was aware that night that • A2 and the recruit were with a woman. A7 A7 A12 later told A7 that he went to apartment B , saw that men were "messing around with the girl and this doesn't lo~k right," and then left apa1tment B . 2. Witnesses repotted the following infonnation related to A? .: Most .accused students denied seeing A7 in apartment B afte:t; the first football game. However, A12 and A2 both left open the possibility that A7 had been present, although they reported that they did not specifically remetnber this. Similarly, apartment A resident Witness-6 jnitially reported that he did not remember A7 leaving apartment A to go to B . However, Witness-6 later appeared to agree that he had seen A12 and A7 return to apartment A together from apattment B . • Witness-8 and Witness-7 (both football team members) reported that they heard that A7 had been present in apartment B . • Witness-7 reported the following: Witness-7 saw apartments on the night of the ftrst football game. A7 A7 at gatherings in two Radius :: Analysis and Conclusions 1. Sexual assault RS reported that A7 introduced himself to her in A2 bedroom. However, RS does not recall whether she had any sexual contact with A7 A7 reported that he did not have any sexual contact with RS ~ and that he was not present in apartment B . Given RS 64 report that many men had sexual contact with her that she cannot identify, and the evidence that A7 . was piesent in apartment B that night, we believe it is possible that A7 had sexual contact with RS :. However, we have insufficient evidence to make a finding on this question. 2. Sexual harassment A7 reported that he was not present in apartment B on the night after the first football game. In contrast, RS reported that A7 introduced himself to her in A2 bedroom. Even assuming that RS report is accurate, due to the scarcity of information that she can recall about her interaction with A7 , there is insufficient evidence to suppott a sexual harassment finding. 3. Conclusions In conclusion, we do not have sufficient evidence to conclude that University policies. 65 A? violated any A3 IX. Evidence gathered fi·om 1. A3 A3 and others reported the following: is a first~year member of the University's football team. He lives in apartment 325 in the Radius. A3 initially reported that he engaged in the following activities after the first football game - he got pizza at Toppers witli two friends, played Xbox in his apartment by himself and then went to bed. He initially rep01ted to EOAA that he did not visit apartments A or B in the Radius that night. However, after learning that EOAA had credible info1.11..1ation that he had been in both apartments A and B that night, A3 acknowledged that he had visited both apartments. A3 reported that there was no party in his own apartment that night. A3 initially adamantly denied that he Jeamed that night that the recruit had sex with a woman. initially reported that he did not learn tills until a teammate told him the next morning. In contrast, A3 later reported that someone told him that night that the recruit had left with a woman. : A3 denied commenting that it was good that the recnlit wa-; having sex because that might make him more likely to come to the University. A3 A3 At one point, A12 told A3 that he was going to A2 room. A12 did not say what A2 room. A3 accompanied A 12 to apartment B . A3 stayed by was happening in the front door of the apartment. He talked to A2 and someone else who he cannot remember by the apartment's fi:ont door. A3 never entered the apartment. A3 thinks he may have seen A1 · inside apartment B . was there, the door to A2 bedroom was closed. Someone told A3 that thexe · were people in the bedroom. A3 · understood that there was a girl and possibly other people in the bedroom but did not know who or what they were doing. A3 never looked into the bedroom. A3 did not understand that the woman in the bedroom had had sex with football players that night. While A3 A12 told A3 A3 and A 12 that he wanted to leave apartment B , but did not provide a reason. Then, left together. A3 either went to his apartment or back to A 12 apm1ment. 2. Witnesses reported the following relevant information related to A3 • reported the following: Sh01tly after he and; A3 a11·ived at apartment B , A12 A4 , A2 A6 ., A 11 and the recruit on the living room couch. A12 understood that AS was -still in the bedroom with RS :. A12 understood that A1 A4 and AS had just been in the bedroom with RS together. Someone told A12 that they were "training her" and th~t she had agreed. ("Training her" appears to ref~r to "running a train," ot· multiple men lining up to have sex with a woman.) A12 saw A 1 A12 RS reported that he and A3 peeked into the bedroom while AS was having sex with A 12 then entered the bedroom, put A3 did not. 66 At one point, A2 , A6 , A 11 , A4 A 1 the recruit, · A3 and A 12 gathered A2 bedroom. A5 was having sex with RS inside the around the open doorway to bedroom. One of the men was turning on and off the bedroom llghts. The men were discussing who would have sex with RS next. The men were also "talking and saying things," although A12 does not remember any specific comments or conversations. At another point, these men were listening to A5 and RS engage in sexual contact from outside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the men present] decided it was messed up ... She said something that made it seem Hke it wasn't the right thing to be doing. They told A2 to get A5 out ofthe room. A2 said, 'no man, she straight."' A12 does not recall what RS said that caused this concern. · RS later said something else that caused the men A2 then said, "this is the concern. She possibly said, "don't send any more people in." last one." A 12 rep01ted that he left apartment 8 with A3 • Witness-3 reported the following: A3 made a joking comment in apartment good thing ifthe·recruit has a "gooa ume" on his visit. • Witness-6 (football team member and apartment A resident) reported the following: told him in apartment A that the recruit was upstairs with a girl. • Witness-1 reported the following; Around the time that RS left apartment A , A3 became excited about the recruit having sex with a cheetleader. A3 said it is always great when recruits have sex because then they want to come to the University. • A1 reported the following: ' When A1 ·1eft apartment 8 after having sex with saw A3 in the apattment' s hallway near the living room. • A2 reported the following: A3 came into the apa1tment's hallway by the front door, and possibly briefly entered the living room. • A12 and Witness-? (football team member) both reported that there was a fairiy large party in A3 apartment after the first football 'game. • rep01ted the following: After the first football game, video games with A3 in A3 room in the Radius. A9 I 2:30am. A9 A3 A9 left A that it is a RS '• A3 he spent time playing A3 room around : Analysis and Conclusions l. Credibility We find portions of A 3 account to be not credible for the reasons detailed in the "Credibility of the Parties" section above, and also because A3 account is at times inconsistent with: (1) 67 his own account; or (2) credible reports fl'om othe1· accused students and witnesses. example: o For A3 initially reported to EOAA that he did not visit apartments A or B in the Radius on the 11ight after the first football game. A3 later acknowledged that he had visited both apartments that night. • A3 denied making any comments about the recruit having left with a woman or having sex with a woman. Conversely, three witnesses xeported that A3 had made such conunents. • A3 rep01ted that he stayed ncar the front door and never entered apartment B However, three other accused students reported that : A3 walked down the hallway toward the living toom 811cl/or looked into A2 bedroom. • A3 denied that men ever gathered around the bedroom doorway or turned on and off the bedroom lights. However, A12 reported that he and six other men (including A3 gathered around the bedroom doorway "saying things" and turning on and off the lights while RS was having sex with A5 2. Sexual assault RS does not recall having any sexual contact with ; A3 in apartment : B A3 similarly reported that he did not engage in any sexual contact with RS :, Given RS report that many men had sexual contact with her that she cannot identify, as well as A3 presence in apartment B that night, we believe it is possible that A3 had sexual contact with RS :, However, we have insufficient evidence to make a finding on this question. 3. Sexual harassment A2 bedt•oom door with othe1• accused The evidence indicates that A3 crowded around students to watch RS engage in sexual concluct. Several accused students reported seeing A3 inside apartment . ·s in contrast to A3 own report that he never entered the apartment. sexual contact with A5 from A12 reported that A3 was among the men watching RS _ t11e bedroom doorway. We understand that A3 denies this conduct. Ho,vever, based on the 11umerous inconsistencies in his reports to EOAA, we find his denial to be not credible. We find that this conduct violated the University's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS :; (1) unreasona'bly interfering with RS academic performance; (2) unreasonably inte1fering with RS partidpation in University activities, including her participation- - - - and (3) creating an intimidating, hostile and offensive environment~ offcampus in her . We do not detail the specific impacts on RS in ot·der to preserve her prtvacy. 4. Conclusjons 68 In conclusion, we find that ~3 violated the fol1owing University policies: 1. Administrative Policy: Sexual Harassment; and 2. Board of Regents Policy: Student Conduct Code, Section IV: o Subdivision 6 (Harm to Person). We find that A3 violated this Subdivision by engaging in harassing behavior that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A3 violated the sexual harassment pottion of this Subdivision. o Subdivision 19 (Violation of University Rules). We find that A3 violated the Administi·ative Jlolicy: Sexual Harassment. 69 X. A8 Evidence gat{r.eredfrom 1. A8 A8 and others Ieported the following: A8 ' is a first-year member of the University's football team. He lives in apa1tment B in the Radius with A 11 ., A2 and A6 l. After the first football game, A8 . talked to A2 in their apartment. A8 then went into his bedroom and watched a movie by himself. A8 : text messaged his mother at 12:30am and she called him at 1:00am. He went to sleep about 20 minutes later. No one entered A8 . bedroom that night. A8 did not leave his bedroom that night A8 . does not remember hearing any voices in his apartment that night. He also does not remember hearing a woman's voice. A8 is a member of the Empire messaging group. He did not read any of the messages sent that night by Empire group members until the following morning. He did not ever watch any videos A2 bedroom that night. His roommates did not ever talk to him about what had taken in happened that night in 1 A2 bedroom and A8 . did not ask. 2. Witnesses reported the following relevant information related to A8 :: • A6 repolied the following: A6 saw A8 in the apartment's living room at multiple points whlle RS was in apartment B . Based on what · A2 had been saying, A8 knew that there was a woman in r A2 bedroom. A8 ' asked 1 A2 what was going on and then just "minded l1is own business." A8 : stayed in the living room and did not go near - A2 · bedroom door. A8 . was in the living room when RS left the apartment. • A 11 reported the fo Jlowing: When A 11 briefly came out of his room that night, A8 . was in his bedroom. However, A 11 believes that A8 , came out of his bedroom later that night. However, A 11 reported that he did not see A8 • A2 reported the following: A8 . was in the living room when A2 came out of his bedroom after having sex with RS :. While A1 , A5 and A4 had sex with RS , A8 . was in the living room with others. At some point that night, A2 thinks that he showed A8 the 90-second video of A2 and the recruit having sex with RS :. • A5 ·, A10 :, A1 and A4 repotted that they did not see A8 . in apartment B that night. A8 1: Analysis and Conclusions 1. Credibility RS and A8 provided differing accounts of A8 . conduct while RS was i,l1 apartment RS account to be more credible for the reasons detailed in B . However, we generally find 70 the «credibility of the Parties» section above, and also because A8 · account is at times inconsistent with credible reports from other accused students. In particular, A8 . reported that he never left his bedroom and was unaware that a woman was in the apartment on the night after the first football game. In contrast, his three roommates reported that A8 . did leave his bedroom that night, that A8 : asked A2 about what was happening in A2 bedroom and that A8 likely watched the 90-second video of A2 and the rectuit having sex with RS that night. 2. Sexual assault RS does not recall having any sexual contact with A8 : in apartment B . A8 : similarly reported that he did not engage in any sexual contact with RS .. Given RS report that many men had sexual contact with her that she cannot identify, as well as A8 ; presence in apartment B that night, we believe it is possible that A8 . had sexual contact with RS '· However, we have insufficient evidence to make a finding on this question. 3. Sexual harassment We find it more likely than not that A8 crowded around' A2 bedroom door with other accused students to watch RS engage in sexual conduct. Several accused students repOJted that A8 was present in the common areas of apattment B , in contrast to A8 own report that he was sleeping in his bedroom. RS clearly recalls A8 standing by the bedroom door laughing and cheedng while men had sex with her. We understand that A8 - denies this conduct. However, based on the available evidence, we find his denial to be not credible. We find that this conduct violated the University's sexual harassment policy because it was sexual in nature, unwelcome to RS ' and had the following impacts on RS !: (1) unreasonably interfering with RS • academic performance; (2) unreasonably interfering with RS participation in University activities, including her participation and (3) creating an intimidating, hostile and offensive environment for RS on campus and offcampus in her participation We do not detail the specific impacts on RS in order to preserve her privacy. 4. Falsification The Board of Regents Policy: Student Conduct Code, Section IV, Subd. 3 provides that students who willfully pwvide University offices or officials with false, misleading or incomplete information are subject to appropriate disciplinary action. We find that A8 . violated this Subdivision by repeatedly and deliberately providing false information to EOAA. In particular, based on the evidence described above, we find that A8 ' falsely reported that he went to bed at 1:30am on September 2 and did not leave his bedroom again that night. A8 conduct had the serious negative effect of hindering a University sexual harassment and assault investigation. By falsely reporting that he was not present in the common areas of apartment B dw-ing the relevant time period, A8 ' avoided providing EOAA with critical firsthand info1mation about the eyents in apartment B that night. 71 5. Conclusions In conclusion, we find that A8 violated the following University policies: 1. Administra1ive Policy: Sexual Harassment; and 2. Board of Regents Policy: Srudent Conduct Code, Section IV: o Subdivision 3 (Falsification). We find that A8 :willfully provided EOAA with false, misleading and incomplete information. o Subdivision 6 (Harm to Person). We find that A8 , violated this Subdivision by engaging in harassing behavior that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A8 . violated the sexual harassment p01tion of this Subdivision. o Subdivision 19 (Violation ofUniversity Rules). We find that A8 ' violated the Administrative Policy: Sexual Harassment. 72 XI. A11 Evidence gatlteredfrom A11 :ami otlters 1. A11 reported the following: A11 is a fLrst~year member of the University's football team. He lives in apartment B in the Radius with A6 ., A8 . and t A2 After the first football game, A 11 went to a party at the Radius. Then he returned to his apartment to watch television and go to sleep. When A11 returned to his apartment, he was the mlly person there. He went into his bedt·ooin and shut and locked the door. At some point, A11 started hearing people in the hallway outside of his room. He walked out of his room into the hallway. He saw A12 ., A1 A6 and A2 standing in the hallway. At that point, the door to A2 bedroom was shut. A11 bedroom is right next to 1 A2 bedroom. No one told A 11 that there was a woman in A2 bedroom. A11 never heard a woman's voice in the apartment that night. The other men in the hallway were not talking about a woman or about who would have sex with a woman. A 11 immediately went back into his bedroom and shut and locked the door. At some point while there were still people in the apartment, A6 came into A11 bedroom. A6 did not tell A11 that there was a woman in the apartment or that he had just had ·sex with this woman. A6 fell asleep on A 11 bed. A 11 woke him up and A6 left the bedroom while there were still people in the apartment. A11 did not recognize any voices other than the voices of those people that he had seen in the hallway. A11 fell asleep while people were still in the apartment. A11 is a member of the Empire messaging group. A11 first told EOAA that he did not look at any Empire messages that night or write any messages to the Empire group that night. However, after leaming that EOAA had the Empire messages from that night, A 11 acknowledged sending messages to the Empire group that night. The EOAA investigator asked whether A11 learned that night from Empire group messages that A2 and the recruit had sex with a woman. In response, A 11 asked whether he had posted his messages to the Empire group before or after 1 A2 messages. After EOAA responded A2 messages, A11 reported that he had not seen that A11 posted his messages before A2 messages that night. A11 reported that he had put the Empire messaging group on a setting where he was not notified when he received a message. A2 A11 has not had any conversations with his roommates about what happened in bedroom that night. A11 received two videos through the Empire messaging group that night the first was an 8-second -video showing RS and the recruit; the second was a video showing RS '• A2 and the recruit having· sex. A 11 started to watch the second video but then· turned it off. 2. Witnesses repmted the folh?wing relevant infom1ation related to A11 :: 73 • reported the following: The walls in their apartment are very thin. A2 ~eard A 11 having sex with a woman through their shared wall while A2 was in the bedroom with RS that night?' A 11 was in the Jiving room when A2 came out of his bedroom after having sex with RS :. While A1 AS and A4 had sex with RS . A11 was in the living l'Oom with others. At some point that night, · A2 thinks that he showed A11 the 90~second video of A2 and the recruit having sex with RS '· • A6 ·reported the following: After having sex with RS ., A6 went into A11 room. A11 came out to the living room later while there were still visitors in the apartment. A11 was in the living room when RS left. A 11 knew there was a girl in A2 room based on what A2 had said, but A 11 never went near the bedroom. A2 A 10 reported the following: As he left the apartment, time in the hallway. o A 10 . saw A 11 for the first reported the following: . Shortly after aniving at apartment B , A12 saw A1 A2 A6 ., A11 :, and the recruit on the living room couch. A12 understood that AS was still in the bedroom with RS :. A12 understood that A1 A4 and AS had just been in the bedroom with RS . together. Someone told A 12 that they were "training her" and that she had agreed. ("Training her" appears to refer to "running a train," or multiple men lining up to have sex with a woman.) A12 A4 At one point} A2 A6 , A11 ~ A4 A1 , the recruit, A3 and A12 gathered around the open doorway to A2 bedroom. AS was having sex with RS inside the bedroom. One of the men was turning on and off the bedroom lights. The men were discussing who would have sex with RS next. The men were also «talking and saying things," although A12 does not remember any specific comments or conversations. At another point, these same men were listening to AS and RS engage in sexual contact from ou.tside of the bedroom. A12 recalled, "from the stuff she said, it didn't seem like she was into it. She said something and [the rnen present] decided it was messed up , .. She said something that made it seem like it wasn't the right thing to be doing. They told A2 to get AS out of the room. A2 said, 'no man} she straight.'" A 12 does not recall what RS said that caused this concern. RS later said so1nething else that caused the men concern. She possibly said, ((don't send any more people in." A2 then said, "this is the last one." A4 • 3. A11 and : A1 reported that they did not see A11 in apartment B that night. messages to the Empire messaging group 21 We idel).tified and twice contacted the woman wbo was reportedly with A 11 in apartment B that night. However, she did not respond to our request for a meeting. · 74 . A11 wrote a number of messages to the Empire messaging group at some point between the end of the first football game and 1:30am. For example, he wrote that he told "hoes" about a pru.ty. He wrote about an unknown woman: "if she aint tryna fck imma be pissed.'' At one point, A11 joking wrote, "run her?" about an unknown woman. A11 reported to EOAA that he was not · referring to RS A11 ·: Analysis and Conclusions 1. Credibility We fin,d portions of A 11 account to be not credible for the reasons detailed in the "Credibility of the Patties" section above, and also because A11 account is at times inconsistent with: (I) his own account; or (2) credible reports from other accused students. For example: • A11 reported that he did not leave his bedroom while RS was present in the apartment> except to briefly step out into the apartment's hallway on one occasion. In contrast, four accused students reported seeing A11 · in other places in the apru.tment during this time period. • A 11 initially reported that he did not look at any Empire messages that night or write any messages to the Empire group that night. However, after learning that EOAA had obtained the Em.pire messages from that night, A11 acknowledged posting messages that night, including jokingly asking "run her?" about a girl other than RS 2. Sexual assault RS does not recall having any sexual contact with A11 .in apartment B . A11 similarly reported that he did not engage in any sexual contact with· RS Given RS : report that roany men had sexual contact with her that she cannot identify, as well as A11 presence in apartment B that night, we believe it is possible that A 11 had sexual contact with RS However, we have insufficient evidence to make a finding on this question. 3. Sexual harassment We find it more likely than not that A11 crowded around A2 :>edroom door with other accused students to watch RS engage in sexual conduct. Several accused students reported that A11 was present in the common areas of apartment B during the relevant time period> in contrast to A11 own report that he was not present there. A12 reported that A 11 was among the men watching RS sexual contact with A5 from the bedroom doorway. We understand that A 11 denies this conduct. However, based on the available evidence, we find his denial to be not credible. We find that this conduct violated the U~iversity's sexual harassment policy because it was sexual in nature, unwelcome to RS and had the following impacts on RS 1: (1) unreasonably RS academic performance; (2) with RS interfering with participation in University activities, ~eluding her and 75 (3) creating an intimidatin~virontnent for RS on campus and offcampus in her participation- - - - We do not detail the specific impacts on RS in order to preserve her privacy. 4. Falsification The Board of Regents Policy: Student Conduct Code, Section IV, Subd. 3 provides that students who willfully provide University offices or officials with false, misleading or incomplete information are su~ject to appropriate disciplinary action. We find that A 11 violated this Subdivision by repeatedly and deliberately providing false information to EOAA. In patticular, based on the evidence described above, we find that A11 falsely reported that he did not leave his bedroom during the period while RS was present in apartment B , except to briefly step out into the apartment's hallway on one occasion. A 11 conduct had the serious negative effect of hindering a University sexual harassment and assault investigation. By falsely reporting that he was not present in the common areas of apartment B during the relevant time period, A11 avoided providing EOAA with critical firsthand information about the events in apartment B that night. 5. Conclusions In conclusion, we find that A11 vioJated the following University policies: 1. Administrative Policy: Sexual Harassment; and 2. Board of Regents Policy: Student Conduct Code~ Section IV: o Subdivision 3 (Falsification). We find that A11 willfully provided EOAA with false, misleading and incomplete information. o Subdivision 6 (Harm to Person). We find that A11 violated this Subdivision by engaging in harassing behavior that endangered RS physical and mental health, safety and welfare. o Subdivision 8 (Sexual Misconduct). We find that A11 violated the sexual harassment po1tion of this Subdivision. o Subdivision 19 (Violation of University Rules). We find that A11 violated the Administrative Policy: Sexual Harassment. 76 A9 XII. Evidence gathered from 1. A9 A9 and others reported the following: A9 is a firstMyear member Of the University's football team. He lives in the Marshall apartment building with A4 A5 and another football team member. After the first football game, A9. spent time with his family. He then played video games with A3 in A3 apartment in the Radius. There was no party happening in A3 room while A9 was there. Around 12:30am, A9 left the Radius and returned to his apartment in the Marshall for the night. A9 A or B in the Radius that night. A9 did at the Radius that night. A9 roommates A5 and happened in apartment B that night. 2. Witnesses reported the following relevant information related to A9 •: • A4 reported the following: A4 and A9 together went to a hockey player's apartment in the Radius and then to another football player's apartment in the Radius after the first football game. • WitnessM6 (football team member and apartment A resident) and A12 reported the A9 spent time in apartment A on the night of the first football game, and following: then slept over in apartment A and RS fi·iend) repmted the following: She spent time talking to A9 around the kitchen island in apa1tment A on the night of the first football game. A9 was present when a bunch of guys gathered around one of their phones, became excited and repeatedly entered and exited a room while talking about something. • 'Witness-5 • A3 reported the following: A3 does not think that A9 on the night of the first football game. There was no party in • A12 and Witness-7 (football team member) reported the following: There was a fairly large party in A3 :tpartment after the first football game. o No accused student reported seeing A9 A9 played video games with him A3 apartment that night. in apartment B that night. ~: A1talysis and Conclusions 1. Sexual assault RS does not specifically recall whether she had any sexual contact with A9 ·. However, based on her memory of A9 first name and hel' viewing of his online football photograph, 77 RS believes he was present in apartment 8 that night. A9 reported that he did not have any sexual contact with RS '• and that he was not present in apartment 8 . Given RS report that many men had sexual contact with her that she cannot identify, and the strong evidence that A9 provided EOAA with inaccurate information, we believe it is possible that A9 had sexual contact with RS ;, However, we have insufficient evidence to make a finding on tlns question. 2. Sexual harassment Even assuming that A9 available information about harassment finding. was present in apattment 8 with RS '• due to the scarcity of A9 conduct, there is insufficient evidence to support a sexual 3. Falsification The Board of Regents Policy: Student Conduct Code, Sectjon IV, Subd. 3 provides that students who willfully provide University offices or officials with false, misleading or incomplete information are subject to appropriate disciplinary action. We find that A9 violated this Subdivision by repeatedly and deliberately providing false information to EOAA. In particular, falsely reported that he was not based on the evidence described above, we find that A9 present in apartment A in the Radius on the night of the fu·st football game. A9 conduct had the serious negative effect of hindering a University sexual harassment and assault investigntion. By falsely reporting that he was not present in apartment A that night, A9 avoided providing EOAA with critical first~hand information about the events in apartment A that night. This information was particularly important to EOAA' s investigation given that RS and many of the accused students were present in apartment A before and/or after visiting apartment 8 4. Conclusions In conclus.ion, we fmd that A9 violated the Board of Regents Policy: Student Conduct Code, Section IV, Subdivision 3 (Falsification) by willfully providing EOAA with false, misleading and incomplete information. 78 SUMM~RY OF FINDINGS XIII. Administrative Policy: Sexual Hal'assment A2 Sexual assault provision of the Administrative I>oJicy: Sexual Assault, Stalking and Relationship Violence Board ofRcgents Policy: Student Co1ttluct Code, Section IV Violation No Violation Violation of Subdivisions 6, 8 and 19 Violation Violation Violation of Subdivisions 6,8andl9 A10 No Violation No Violation No Violation A4 Violation Violation Violation of Subdivisions 6, 8 and 19 A1 Violation Violation Violation of Subdivisions 6, 8 and 19 A5 No Violation Violation Violation of Subdivisions 6, 8 and 19 Violation No Violation Violation of Subdivisions 6, 8 and 19 No Violation No Violation No Violatio11 Violation No Violation Violation of Subdivisions 6, 8 and 19 A8 Violation No Violation Violation of Subdivisions 3,6,8and19 A11 Violation No Violation Violation of Subdivisions 3, 6, 8 and 19 No Violation No Violation Violation of Subdivision A6 A12 A7 A3 A9 3 79 CONCLUSION This concludes our investigation. As you know, retaliation against any individual for participating in EOAA's investigative process is prohibited. Retaliatory conduct includes any form of intimidation, reprisal or harassment against individuals for reporting or otherwise participating in a University investigation of sexual misconduct. Sharing information about this investigation with individuals who do not need to know may in some circumstances constitute l'etaliation. If you have any questions or concerns about this letter or any other EOAA issue, please let us know. Sincerely, ~~ Kimberly D. Hewitt, Director Office of Equal Opportunity and Affirmative Action Tina Marisam, Assistant Director Office of Equal Opportunity and Affirmative Ac1ion 80