City dismissed from Title IX lawsuit after plaintiff’s emotional testimony
The city of Charlotte was dropped from a federal lawsuit Thursday evening, the third day of trial in a case stemming from a 2015 sexual assault report related to Myers Park High School. Judge Robert Conrad said lawyers for a former student, who is identified as Jane Doe, did not present enough evidence against former school resource officer Bradley Leak, a Charlotte-Mecklenburg Police Department employee, to send the case to the jury.
“I don’t believe any reasonable jury could rule in favor of the plaintiff,” he said.
But Conrad denied a dismissal motion from Charlotte-Mecklenburg Schools, which will begin its defense Friday morning. Jane Doe’s suit claims CMS failed to provide the protection against sexual harassment and assault required by Title IX of federal civil rights law.
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The lawsuit stems from an incident the morning of Nov. 3, 2015, when Jane Doe, who was a 17-year-old junior, left the Myers Park campus with an 18-year-old male classmate. She testified at length Thursday that he coerced her to leave campus and forced her to perform oral sex in a bamboo forest about a mile from campus. The male student said the sex was consensual.
Text message flirtation
Doe is now a 24-year-old wife and mother who works part-time as a behavioral technician, working with autistic children, she testified. She described herself as romantically and sexually inexperienced when the classmate asked for her phone number and complimented her on her appearance via text message.
Her testimony began with a review of numerous text messages the two exchanged, starting five days before the incident in the woods. She said she was flattered but also felt “weird and uncomfortable” when he texted that she was beautiful and that her appearance was “a turn-on.” He asked if she was a virgin, and when she said yes, he offered to let her see and touch his penis. She texted that she did not want to do that.
Doe then initiated several more text exchanges with the male student, including numerous messages on Nov. 1, when she was at a friend’s house for a sleepover. Unknown to him, she testified, her friends were monitoring the exchange and giving her advice. She said her friends called the guy “creepy” and told her to “blow him off,” but the two continued to talk about meeting and she gave him her home address.
The male student told Doe he was not a virgin and all of his sexual encounters had been casual. He suggested they skip school together for a sexual encounter and assured her he wouldn’t hurt her. She went back and forth, saying she wanted to but “I want you to ask me out first. I want to be your girlfriend.”
Doe said her friends continued to tell her to break off the text conversation, but she didn’t because “I’m not confrontational.” Before 7 a.m. on Nov. 3, she told him where to meet her on campus, because “I didn’t hate him and I didn’t want to hurt his feelings.”
Doe testified that when she left the building with the classmate, she thought he was just walking her to her gym class and said she didn’t notice when they veered toward the woods behind Myers Park High. Leak, the resource officer, saw them leave while he was directing traffic and called Doe by name, saying he was going to call her mother.
Doe testified that at that point the male student grabbed her wrist and pulled her toward a muddy path leading off campus. She said she was scared but did not call out to Leak. For about 30 minutes after that, she testified, the two of them walked away from campus, often along busy roads. During that time, she repeatedly texted her mother and friends that she had been kidnapped and needed help. She said she did not know where she was once they left campus, and hung up or refused to answer calls when her friends tried to reach her because she was afraid the male student would take her phone. She said he yelled at her, told her not to make a scene and was “ranting about not wanting somebody in his business.”
“It was really scary,” she said.
The friends texted back that they had gotten in touch with Leak and school administrators, and Doe said she just kept hoping Leak or her mother would show up to rescue her. At one point, a friend asked if Doe was in danger and she replied, “No. He’s just talking.”
Attack in the forest
Doe said the male student eventually led her into the bamboo forest off Hassell Place, near Park Road Shopping Center. He kissed her roughly, unzipped his pants and told her to give him oral sex, she said.
“I kept telling him I didn’t want to do this,” she said, her voice breaking. “I kept looking to see if someone was coming and I didn’t see anyone coming.”
But she said during the encounter three students walked through the woods. She said the classmate zipped his pants, exchanged words with the students and resumed the attack after they passed. He pushed Doe down, grabbed her hair and forced himself into her mouth as she cried and begged him to stop, she said.
“I still beat myself up because I didn’t yell for help, but it was so embarrassing and humiliating and I wanted my mom,” she said.
Doe said the two emerged from the woods just as officer Leak and Assistant Principal Anthony Perkins pulled up, looking for them. She said she didn’t want to talk about the attack in front of the male student. They drove back to Myers Park, and after Perkins and the young man got out of the car, she says Leak asked her what happened and she told him she was “sexually attacked.”
She said at that point she realized Leak was on the phone and relayed that Doe said she had been attacked. She said she heard the person on the other end say, “How do you know she’s not making it up?” After that, she said she wouldn’t talk to Leak, and her parents checked her out of school to take her to an emergency room.
After they left the emergency room, she said her parents took her to talk to a lawyer and then to a police station, where she was interviewed around 10 p.m. The jury heard the audio of that interview with Detective W.B. Clark, who was clearly skeptical. He told her he had seen video and looked at the text messages provided by the male student, who said she agreed to the act. He talked about how a snowball gets bigger as it rolls downhill and told her “we all make choices we regret.”
“I ain’t mad at you,” he said, urging her to tell the truth and not get herself in trouble. When she talked about the student kissing her, Clark said, “You were kissing him back, right?”
In that tape, Doe was adamant that she had told the male student she didn’t want him to do what he did in the woods, no matter what had been communicated before. “What I said today was ‘no,’ the whole time,” she said on the recording.
Clark also said Leak had tried to bring her in for a statement earlier in the afternoon, and now he was having to take her statement at 10:45 p.m. He mentioned that Doe’s mother is “one angry person out there,” and assured Doe that if she told him the truth, he wouldn’t share it with the mother. “I think you had a moment of weakness — not with what happened, but going with him,” he said, telling Doe “now it’s time to learn the lessons and move on.”
Doe said she hardly slept that night and thought about killing herself. She testified that she still suffers from depression, suicidal thoughts and nightmares about the attack and its aftermath, including the interview with Clark.
Lawyers raise questions
Doe testified for four hours in the morning, then faced 90 minutes of cross-examination by lawyers for CMS and the city. Lori Keeton, representing the city, asked about the numerous opportunities Doe had to break off contact with the male student or get away from him. She also noted that Doe has been inconsistent in her description of what she told officer Leak in the car immediately after the incident, and had revealed graphic details during Thursday’s testimony that she had never mentioned in police interviews and depositions.
Doe said she had never gone into that much detail before “because it was degrading.”
Terry Wallace, representing CMS, also noted times when Doe could have asked for help, including when fellow students walked up during the attack. He also noted that CMS suspended the male student for 10 days while the district investigated the incident and reassigned him so he wouldn’t be in the same class or lunch period with Doe when he returned. But Doe never returned to Myers Park High, and her parents broke off communication with school administrators, according to testimony.
Late in the afternoon, Doe showed frustration with Wallace’s questions. She once told him to stop asking her the same question over and over. Later, he asked her why she never sued the student who attacked her.
“Well, Terry, rapists belong in jail,” she replied. The judge immediately called for a sidebar, a private conference with the lawyers for both sides. When they returned, he instructed the jury to disregard that question and Doe’s answer.
No dismissal for CMS
Conrad agreed with the city’s lawyers that Doe’s team had not proven that the city was negligent in hiring and retaining Leak. They contended there was no evidence that anyone had complained about Leak in two previous Myers Park incidents that were cited in earlier testimony.
But the judge didn’t buy Wallace’s motion to dismiss CMS as well. Wallace argued that there wasn’t enough evidence to show the district failed to investigate her complaint or protect her afterward. “I don’t think it’s fair to be sued for a failure to investigate when you don’t participate in an investigation,” he said of the family’s refusal to talk to Myers Park administrators.
Conrad said there is sufficient evidence to send the case to the jury. He mentioned testimony that former Principal Mark Bosco held an assembly shortly before the Jane Doe incident in which he warned female students not to go into the woods because the school couldn’t protect them.