Last month, a Yale junior suspended for groping and creating a hostile academic environment filed a lawsuit against the University, alleging that its investigation was unfair and that the two students who filed Title IX complaints against him colluded during their University-Wide Committee hearings.
But legal experts interviewed by the News offered conflicting views on the accusation of collusion, with some dismissing it as unfounded while others criticized Yale’s decision not to hold a new hearing.
The allegations of collusion leveled by Daniel Tenreiro-Braschi rest on the fact that the two complainants, referred to in court documents as Sally Roe and Jane Roe, were texting each other during their hearings with the UWC, and that Yale failed to sequester the complainants, who were able to listen to each other’s testimonies during the proceedings. According to the UWC report submitted to the U.S. District Court for the District of Connecticut, the panel requested copies of both complainants’ text messages in order to determine whether they had colluded.
Sally Roe told the UWC she texted the other complainant to comfort her because she was “not doing well,” the lawsuit states. But while several of the exchanges contained messages of encouragement, others included texts like, “[Tenreiro-Braschi] is in hell,” “i’ve thrown up twice since i got here winning the pity vote” and “kind of wanted to puke while [the UWC] were questioning me just for dramatic effect.”
After confirming with the complainants that the messages they had provided were the extent of their exchanges during the hearing, the UWC allowed Tenreiro-Braschi to submit questions he wanted the panel to ask the complainants about their texts. Ultimately, though, the body dismissed his claims.
“Although the content of the messages was unfortunate because of the disrespectful manner in which the proceedings were discussed, the Panel did not find that these messages contained evidence of collusion,” says the panel report, which is included in the lawsuit. “Further, the Panel considered whether the nature of the exchanges — one of which mentioned wanting to vomit ‘for dramatic effect’ at the hearing — damaged the credibility of the complainants. The Panel finds that, despite the content of the text messages, the complainants were credible.”
Among other claims, Tenreiro-Braschi’s lawsuit alleges that the University failed to give him a fair hearing by neglecting to immediately order a new panel hearing once the UWC learned of the complainants’ exchanges. His lawyer did not respond to request for comment.
On the subject of Tenreiro-Braschi’s suit against the University, Vice President for Communications Eileen O’Connor told the News that “the plaintiff is wrong on the facts [and] wrong on the law.”
Asked whether UWC policy prohibits communication between complainants, O’Connor directed queries to Yale’s UWC policies and procedures.
Two experts interviewed by the News argued that the text messages likely do not constitute collusion and noted that rules governing collusion allegations in courts of law do not apply in the same way to administrative processes.
Christopher Slusher, a Missouri-based attorney who represents men suing their universities in response to accusations of sexual misconduct, said the communication alone does not necessarily constitute collusion.
In many cases, he said, witnesses in criminal court are not allowed to hear other witnesses’ testimony and are asked not to discuss testimony with other witnesses. Proving collusion usually requires that the alleged victims either discussed facts that addressed in the testimony or shared information about other facts that came out during the hearing and might enable someone to testify more effectively.
But the texts between Jane Roe and Sally Roe did not seem to include a discussion that would directly affect testimony or evidence that was presented at the hearing, Slusher said. Although he understood the plaintiff’s concerns, he said, the messages did not “jump out” to him as directly related to testimony.
Katherine Baker, a legal expert on campus sexual misconduct, agreed, saying that the texts do not show any indication that the two complainants were misrepresenting any parts of their stories.
“I don’t really think the texts show collusion,” she said. “I do think the texts are kind of disturbing — but they don’t show collusion or indicate any kind of misrepresentation on the women’s part.”
But Eric Rosenberg — who has represented students suing their universities because witnesses conspired to present false testimony against them — said “an innocent-looking text” could have a nefarious purpose depending on when it was sent. Simply reading the texts would not be sufficient to determine whether they constitute collusion, he added.
However, even if the messages did meet the legal definition of collusion, Slusher said, they still might not constitute a violation of Yale’s code of conduct because administrative processes — like the one by which Yale handles Title IX complaints — do not have to abide by the same rules that apply in courts of law. He added that he does not know of any rules under the Title IX statute or in Justice Department advisories prohibiting communication between witnesses.
“[Tenreiro-Braschi’s case] sounds like a good issue to me if the process allowed two people particularly during the hearing to have communications, but I don’t know of any law that says … you’re going to win if you even establish that this happened,” he said. “If the text messages were somewhat benign, then challenging the administrative process on that is going to be somewhat difficult.”
If proven, collusion could still be grounds for an unfair hearing and retrial — which is guaranteed under Title IX — and other experts suggested the allegations should be taken seriously.
Joshua Engel, another lawyer who represents men accused of sexual misconduct, said the fact that the two victims were communicating during the hearing “calls into question the integrity of the hearing process.” He would have advised Yale to order a new hearing, he said.
And Susan Kaplan, who represented a previous student who sued Yale for gender discrimination on the basis of Title IX, said the complaint of collusion “has teeth.”
In September, Sally Roe and Jane Roe filed complaints against Tenreiro-Braschi, alleging that he groped them on a charter bus traveling to the 2016 Yale-Harvard game in Cambridge. Jane Roe also alleged that the plaintiff groped her while they walked along the street after they were denied entry to a Paris nightclub in summer 2016. The UWC recommended a two-semester suspension for three counts of “groping” and one count of “engaging in sexually harassing conduct that created creating a hostile academic environment.” Yale College Dean Marvin Chun approved the recommendation.
Tenreiro-Braschi’s case is scheduled to go to trial in August.
Hailey Fuchs | firstname.lastname@example.org