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A question of credibility

This is part one in a series of articles examining how Title IX investigations are handled on the UMBC campus. The Retriever is using the victims’ initials with permission to maintain anonymity.

In December 2017 and September 2018, respectively, Towson University students A.B. and A.H. reported to the University of Maryland, Baltimore County that they had been gang raped in October 2017 by three UMBC baseball players while incapacitated. UMBC’s subsequent Title IX investigations are the subject of a $10 million federal civil lawsuit that includes three other women and that alleges UMBC and its police department mishandled cases of sexual assault and conspired to cover up the crimes.

Because the two young women who allege they were gang raped by three UMBC baseball players in 2017 were not UMBC students, the university appears to have made a concerted effort to marginalize and devalue their allegations. UMBC Title IX investigators Morgan Thomas and Erick Kim, who were responsible for examining the TU students’ complaints and coming to a final decision, also appear to have significantly prolonged the process responding to these concerns although that is counter to the school’s official policy pertaining to these matters.

Perhaps the most immediate response to a Title IX report is the issuance of Interim Protective Measures. IPMs are individualized services offered to both the reporting and responding parties in a Title IX investigation that are meant to ensure safety and well-being. These actions, handled by Jaclyn Stone and unrelated to the UMBC Title IX Office, can be requested by the Responding or Reporting parties, and UMBC can invoke these measures independently at any point during an investigation.

After the investigation has been completed, analysis of the interviews and the facts begin. In UMBC Title IX investigations, the credibility of all involved parties is assessed to come to a final decision. According to Title IX investigators Thomas and Kim, a credibility assessment is based on demeanor, the motive to falsify, inherent plausibility, corroboration and a past record of the alleged harasser. Investigators went as far as to interview A.B.’s ex-boyfriend and included a narrative of her alleged prior sexual history in the report.

After an initial investigation by UMBC’s Title IX department, A.B.’s draft investigative report was released on July 24, 2018, and her final report was released four months later on Nov. 6, 2018, a total of eleven months after she had initially filed her complaint. This is much later than guidelines offered by UMBC’s Interim Title IX Procedures for Students, which states that “The University will seek to resolve every report of Prohibited Conduct within sixty (60) calendar days after receiving the report, excluding any appeal.”

A.H. also received her final investigative report outside of this 60 day guideline, five months after she had initially filed her complaint. Her draft investigative report was consolidated with information and interviews from A.B.’s investigation, so no additional interviewing of the baseball players occurred. According to an email sent by UMBC Title IX Coordinator Bobbie Hoye on Nov. 5, 2018, to A.B, and A.H.’s legal counsel, Rignal Baldwin V, the investigations were “inextricably intertwined, as they [arose] from a single underlying incident.”

This practice of consolidating reports is consistent with UMBC’s Interim Title IX Procedures for Students, as per Section X, which states that multiple reports may be consolidated “if the information related to each incident would be relevant and probative in reaching a determination on the other incident.”

Immediately following A.B.’s filing of a Title IX report in December 2017, no contact orders – “NCOs” – were issued to the three UMBC baseball players in a letter informing them of the university’s Interim Protective Measures. This letter was written by Stone who, at the time, was the Special Assistant to the Associate Vice President for Student Affairs.

According to the letter, these measures restricted the baseball players’ access to UMBC and only allowed them to attend class, labs and final exams. When the players appealed, they were denied, and once they amended their appeals, they were permitted to participate in athletics activities, as per email interactions between the players and Stone. In August 2018, one of the baseball players attempted to add A.B. on Snapchat, a multimedia messaging application, according to A.B.’s phone screenshots of the incident. The no contact order with A.B. remained in place during the time of this incident; however, no violation was found by UMBC Title IX investigators.

When A.H. filed her Title IX complaint, however, IPMs and NCOs were not issued. In an email to Baldwin addressing concerns about this incident and the consolidation of the investigation for the two students, Hoye stated that A.B. had specifically requested an NCO, while A.H. had yet to do so.

Hoye also stated within the email that “unlike situations in which the reporting parties are students or other members of the UMBC community, the investigation is not, and by definition cannot, provide any remedies for your clients.”

Hoye also claimed that “neither Ms. [A.B.] nor Ms. [A.H.] have Title IX rights vis a vis UMBC and neither are subject to or are beneficiaries under the Policy as if they were students.”

In all Title IX investigative reports relating to A.B. and A.H., the baseball players’ demeanor was cited as “calm and cooperative.” It was noted within the reports that two of the players made it clear to investigators that the inconsistencies in their stories were due to the passage of time, and the other “offered explanations for all questions regarding discrepancies with the police report.” All three baseball players had hired attorneys prior to being interviewed by Baltimore County police detectives in November 2017, a month after the alleged rape took place, at a Chick-Fil-A in Halethorpe over the span of an hour, according to a timeline of events presented in all investigative reports.

Because A.H. was not able to meet with the UMBC Title IX investigators to offer an interview due to surgery, according to her legal counsel, her credibility assessment is sparse. A.B.’s assessment, however, describes her statements as having been “inconsistent and/or contradictory when compared to her own previous sworn statements.” A.B. maintains throughout her responses to the Title IX investigative reports that the investigators have misstated her previous statements on the matter, and that investigators took statements attributed to A.B. from police reports as if they had come from A.B. firsthand.

The initial draft report detailing the results of A.B.’s investigation state that her memories are “rather elaborate and detailed – as well as selective in favor of A.B.’s allegations.” It further states that “she presents statements that are conflicting with not only her friend’s statement but also with her own.”

Throughout all investigative reports, A.B. and A.H. were unable to provide corroborating evidence from witnesses, but the three baseball players were able to provide witness statements from three other members of the baseball team who were all close friends with at least two of the accused players.

According to the final investigative reports, because the evidence presented did not include information suggesting the use of “force, intimidation or threats to engage in the sexual activities in question,” the investigations support that both A.B. and A.H. had the “capacity to give consent” despite A.B.’s reported incapacitated state and A.H.’s reported unconscious state. Instead of using the definition of consent as outline by UMBC’s Amended Policy on Sexual Misconduct, which indicates that consent cannot be given under the influence of alcohol, the investigators appear to be using the definition provided by Maryland criminal law, which places more of a burden on the alleged victim to prove force.

Both A.B. and A.H.’s Title IX investigations found “insufficient evidence” to support their claims of sexual violence.