In a first-of-its-kind ruling, a judge in Tennessee has ruled that even a private college must provide basic due process rights to students accused of sexual assault.

At Rhodes College, two male football players, identified in court documents as J.S. and Z.W., were accused of raping a woman, identified as C.S.

J.S. and C.S. attended a formal event together at J.S.’s fraternity, Sigma Alpha Epsilon. Court documents state that C.S. “consumed a large quantity of alcohol, smoked marijuana, and used cocaine.” She then became “violently ill” and was described “as incapacitated, in-and-out of consciousness, vomiting, refusing to drink water, and speaking incoherently.”

J.S., Z.W., another student identified as E.M., and four other fraternity members attempted to help C.S. J.S. contacted C.S.’s friend, C.C., to pick her up. When C.C. arrived, C.S. claimed, “They raped me” and asked to go to the hospital. At the hospital, C.S. said she wanted to go home. C.C. and C.S.’s roommate asked C.S. about the night. When they realized C.S. couldn’t answer coherently, they began asking her “yes” or “no” questions to figure out who allegedly raped her. She gave a “thumbs up” when J.S. was mentioned and also when Z.W. was mentioned. When the pair asked C.S. “if the guys had sex with her” she gave a “thumbs down.”

C.S. then claimed E.M. “is not okay” and “she made it all happen.”

C.C. reported the next day that C.S. said “she thinks she was raped but she doesn’t know if she’s misremembering.” C.S. was taken to the hospital and a sexual assault kit was performed.

That exam would reveal superficial injuries to her rectum, according to court documents. This “evidence” was included at the last minute during J.S. and Z.W.’s student hearing and they were not informed it was being included, giving them no way to rebut the evidence. In court filings, the pair said the injuries could have been caused by common gastro-intestinal issues or even consensual anal sex (which is not what the accused claim happened).

Rhodes charged J.S. and Z.W. with sexual assault on April 5, 2019. During the prior investigation, witnesses at the event said no sexual assault or inappropriate contact occurred. “Not one witness with personal knowledge corroborated that C.S. was raped,” court documents state, “the only evidence supporting such were C.S.’s statements made to C.C. and D.P. while incapacitated and intoxicated.”

One witness, J.H., told campus investigators that he was with J.S. the entire time and would have seen if something happened, but he didn’t.

No witnesses at the hearing supported C.S.’s statements, and C.S. wasn’t even required to attend the hearing. The school didn’t call J.H., so the accused students did. At the hearing, he again said he had actual, direct knowledge of the events in question and that no sexual misconduct took place.

Still, Rhodes found J.S. and Z.W. guilty and expelled them. J.S. was supposed to graduate in May, so he and his attorneys filed a temporary restraining order “TRO” against Rhodes to prevent them from withholding his degree.

Judge John Fowlkes, Jr., who was nominated to the bench by former President Barack Obama, wrote that students accused of sexual misconduct “must have the right to cross-examine adverse witnesses.”

“To adequately assess credibility, which concerns both the accused and the accuser, there must be some form of live questioning of the accuser in front of the fact-finder; written statements of the accuser will not suffice,” he wrote.

As professor and author K.C. Johnson noted, this is the first time a judge has made such a ruling against a private university. Typically, private institutions have been allowed to circumvent the constitution and deny accused students their due process rights.

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