PennLive by John Beauge September 22, 2016
WILLIAMSPORT — Two Penn State fraternity brothers who at one time were facing a two-semester suspension in a sexual misconduct case have been cleared, their attorney says.
The two, identified in court proceedings as John Doe I and John Doe II, were acquitted of violating the university’s code of conduct when they were subjected to a revised disciplinary process, Andrew Shubin said Wednesday.
Under a different process they challenged in U.S. Middle District Court as unconstitutional, they had been found to have engaged in non-consensual oral sex and sexual misconduct involving an incapacitated individual.
Each was scheduled to be suspended for two semesters until Judge Matthew W. Brann last October issued a temporary restraining order.
As the Does worked to have the restraining order made a permanent injunction, Penn State in April withdrew the suspensions, expunged their records and revised its disciplinary process in sexual misconduct cases.
The university said at the time the students could be subject to the revised disciplinary process, which they were and were acquitted, Shubin said.
Penn State would not confirm that.
“Our general practice is not to comment on pending litigation,” spokesman L. Reidar Jensen said. “In addition, we generally do not comment on individual student discipline cases to protect legitimate privacy interests.”
“I’m pleased my clients got a fair hearing, which the constitution requires,” Shubin said.
The attorneys are working to resolve out of court issues remaining in the consolidated suit against the university, President Eric Baron and Daniel Shaha, senior director of student conduct, he said.
Penn State was forced to change its disciplinary policy in sexual misconduct cases because of this litigation, Shubin claims.
The Does had been adjudicated using what is called an investigative model, which they claimed violated their due process rights because they were unable to confront their accuser.
That model employed an investigator who interviewed the accused, accuser and others. He then prepared a packet of information for a three-person panel that decided whether a violation occurred.
Cross-examination was done in the form of questions to the investigator, and the accused could object to the information given the panel.
The revised process gives the accused the opportunity to appear before the decision panel to suggest questions to be asked of other parties. The accused also can observe potential interaction between the complainant and the panel and supplement the investigative packet with new, relevant information.
The Does were subjected to disciplinary action due to an incident in the basement of the Alpha Chi Rho fraternity house early on Dec. 5, 2014, when they and two other males were listening to music.
They claimed in court documents a female suggested a “fivesome” and she performed oral sex on them.
The woman’s sister reported the incident to State College police, but following an investigation no charges were filed.
The woman claimed she was too drunk to consent to the sexual activity, but the two Does dispute that, claiming she acted normal.
They contended she made a complaint because she was upset when denied access to a fraternity formal that Dec. 12 because her date was not a member of Alpha Chi Rho.