In a suit filed today in federal court, the author of the Commentator article who alleged that she was raped by a YU student athlete is alleging that YU in its handling of her complaint attempted to cover up her rape, and violated Title IX while doing so.
Plaintiff alleged at the time and reiterates the allegation in her new filing that she went on a date with the alleged rapist (referred to in the lawsuit as Perry Doe) and made it very clear to him that she didn’t want any kind of physical or sexual contact. Perry Doe allegedly nonetheless tried to convince to come back home with her. When she refused, Plaintiff alleges that Perry asked her to help him carry up some things he’d bought as a pretext to get her into his apartment despite her prior refusal.
Plaintiff alleges that once she was in the apartment Perry violently raped her, choking her and forcing her legs open with his knee, both of which allegedly left significant bruising. The complaint alleges that following the rape Plaintiff went back to her apartment, and told her roommates what had happened. They cared for her and convinced her to go to the hospital and have a rape kit done, which she agreed to do.
According to the complaint, following the rape Plaintiff’s schoolwork suffered. She allegedly contacted Dr. Sara Asher, Assistant dean of student affairs, and disclosed the rape to her, asking for accommodation in its aftermath. Dr Asher allegedly told Plaintiff to contact her professors individually and inform them of what had happened to her and request accommodation from them directly.
The complaint alleges that later that month Plaintiff disclosed the name of the assailant to Dr Asher who advised Plaintiff to file a formal Title IX complaint with the school’s Title IX office, headed by Dean of students Dr. Chaim Nissel. According to the complaint, once receiving the complaint Nissel, who had allegedly provided Plaintiff with no resources, no advocate, no real understanding of what the process would look like, and had allegedly told Plaintiff that the results of the investigation they conducted couldn’t be released until Plaintiff signed a nondisclosure agreement, had no contact with Plaintiff during the investigation. According to the complaint that nondisclosure agreement is illegal and therefore void because according to the Clery Act requires that a university is required to give each participant in a Title IX proceeding unfettered access to investigative materials and reports. Plaintiff seeks a declaratory judgment rendering the NDA null and void.
The complaint alleges that rather than give Plaintiff access unfettered access to the investigative reports and materials, YU provided her with an encrypted file that was locked by YU a few days later before she had a chance to review any of the documents with her attorney.
According to the complaint, Nissel did talk to YU’s general counsel, Avi Lauer, and allegedly conspired with him to address, resolve, and whitewash the alleged rape, especially since YU had at the time had begun a massive fundraising campaign that could have been damaged by these allegations. The complaint alleges that a short time later Nissel contacted Plaintiff to let her know that they had contracted what he characterized as an independent investigator to conduct the investigation into her rape. According to the complaint Nissel contracted the lawfirm of Seyfarth Shaw which assigned lawyers Dov Kesselman and Emily Miller to the case.
What was allegedly not disclosed to Plaintiff, however, was the fact that the firm in general and those lawyers in particular had already represented YU for a long time, and in numerous sexual assault cases, too, including the lawsuit filed by the victims of child sexual abuse suing YU for alleged coverup of sexual abuse committed by George Finkelstein and others in the Yeshiva University high school. Plaintiff alleges that this constitutes a clear conflict of interest, especially since these attorneys say on a council called the General Counsel’s Council which comprises attorneys from outside law firms and corporate legal departments who believe in the mission of the university and would like to assist through the provisions of pro bono legal services. Such lawyers, the complaint alleges, would be incapable of conducting an independent, unbiased investigation given not only their direct connection to the school as its longtime lawyers, but also given their personal dedication to the school. According to the complaint this conflict of interests was never disclosed to Plaintiff despite it having potentially been grounds for appeal of YUs decision in this case.
The complaint further alleges that these coverups are part of a pattern of behavior by YU to fraudulently project an image of safety and security for students on its campus contrary to reality. According to the complaint YU has failed to fulfill its Clery Act mandated disclosures of rapes and sexual assaults for over 20 years. The complaint demonstrates that between 2001 and 2020, YU, despite being required to do so by the federal government as a condition of receiving federal funding, disclosed not a single rape or sexual assault during that period despite having received many complaints of the same during that period. The complaint seems to paint a picture of a school more interested in its image than the safety of its students.
According to the complaint, Nissel failed to treat the complaint by Plaintiff as a Title IX case, and without notifying Plaintiff of this, conducted the investigation as though this were a simple disciplinary matter, not a sexual assault, and not a Title IX case. Even within the guidelines set by YU, the complaint alleges that the investigation was inadequate. The complaint alleges that there was no live, in-person interview of Plaintiff and Perry to ascertain credibility, material witnesses who could have corroborated Plaintiff’s claims were not interviewed, and evidence collected by the rape kit was not only never seen by the investigation, it was never sought, despite Nissel and the investigators allegedly knowing clearly about their existence. The complaint alleges that while Nissel and the investigators knew that in order to procure the rape kit from the hospital they would have to get Plaintiff’s permission to release it, they never informed her of that fact and then used that as an excuse for why they hadn’t procured and examined the rape kit.
Included in this testimony and evidence, according to Plaintiff, would be testimony by friends who were told about the rape or saw and cared for her in its aftermath, and pictures of the bruising around her neck and thighs from where Defendant allegedly choked her and forced her legs apart with his knee.
The complaint also alleges that when the investigators interviewed Plaintiff they repeatedly made her tell her story about what had happened, subjecting her to traumatic questioning repeatedly, which not subjecting Perry to a similar level of scrutiny, and not requiring him to restate his version of events repeatedly.
The complaint makes sure to detail why YU should be responsible for this case despite it happening on campus. First, the complaint alleges, the apartment in which the rape took place falls within YU’s security coverage area. Second, given the fact that Perry is a foreign citizen and apartments in the area won’t rent to foreign citizens unless they are vouched for by the school, the school had a hand in securing the apartment. Similarly, since Perry was allegedly under the age of 21 at the time, YU would have had to vouch for him to get the apartment. Perry would also allegedly have needed YUs permission to live off campus. Perry also allegedly received funding from YU to pay the rent on that apartment. The complaint asserts that all of these factors contribute to this rape being the responsibility of YU to handle as a Title IX case and follow proper procedure.
Additionally, the complaint alleges that after YU concluded its investigation and closed the case without having found Perry responsible, and without informing Plaintiff why the case was closed, Nissel allegedly refused to accept an appeal of that decision from Plaintiff despite her having the right to do so and Nissel having the responsibility to allow an appeal to be decided by somebody outside of the Title IX office. Plaintiff allegedly repeatedly tried requesting an appeal and was repeatedly denied by Nissel.
Following all of this, Plaintiff alleges that she requested certain security measures from the school to ensure her safety in the aftermath of the alleged rape. Plaintiff alleges that as time went on, Perry’s presence on campus caused her much fear and anxiety. According to the complaint, Nissel had a responsibility under Title IX to consider appropriate security measures both during and after the investigation to ensure the safety of Plaintiff. Among the options available to Nissel under Title IX were barring Perry from campus, barring Perry from certain areas on campus, barring Perry from certain areas on campus at certain times, removing Perry from the YU basketball team, and providing Plaintiff with escorts to accompany her while on campus. Nissel allegedly refused to afford Plaintiff any of these security measures despite Plaintiff repeatedly expressing her fear and anxiety about being on the same campus as her assailant.
According to the complaint, when Plaintiff once again requested security measures later that year she was told by Asher that by then there was too much bad blood to implement any security measures. Plaintiff alleges that YU refused to provide any security measures in retaliation for her having reported her rape.
Later that year, YU allegedly finally notified Plaintiff that her case had not been handled as a Title IX case because the rape took place off campus. However, the complaint points out that aside from YU’s security coverage of the area in which the rape took place, and aside from YUs role in security Perry’s housing for him, the YU Student Bill of Rights ensures that sexual assaults committed by students against other students, whether on or off campus, would be subject to a proper investigative process which was allegedly not followed in this case. Furthermore, the complaint cites the YU Anti Bullying and Hazing Policy for Students as saying that the policy applies to conduct that occurs off campus as well, if it determines that the behavior of the accused perpetrator impairs, obstructs, substantially interferes with or adversely affects the mission, process, or functions of the university. The YU Policy on Protecting Athletes similarly states that it applies, whether on or off campus, to any sexual harassment or assault.
The complaint then details numerous instances of YU policy requiring that it have applied a proper investigative process to this alleged assault regardless of where it happened.