From Erikson v. Xavier Univ., decided Monday by Judge Matthew McFarland (S.D. Ohio):
Erikson was a tenured Associate Professor of Art for Defendant Xavier University for nearly a decade until his termination in October 2022. This case primarily revolves around the events leading up to Plaintiff's termination; a former student's [Witt's] allegation that Plaintiff had raped her and the investigative and administrative actions that Xavier took in response to her formal complaint.
Plaintiff began speaking with … Witt[] during the latter half of 2019. Although Witt had graduated from Xavier in 2013, she was not a Xavier employee and had no other relationship with Xavier. After communicating over several months and meeting on multiple social occasions, Witt suggested that she spend the night at Plaintiff's house on December 31, 2019. That night, Witt visited Plaintiff at his house and the two had sex. Plaintiff alleges that the sex was consensual.
A little over two years later, on February 5, 2022, Witt contacted Defendant Kelly Phelps—a professor at Xavier who chaired the Department of Art from 2012 through 2019. Witt told Phelps that she believed Plaintiff had raped her. Phelps "urged Witt to report the allegation but warned her that [Plaintiff] is 'white, and male, [and] got privilege on his side."
On February 24, 2022, Plaintiff was notified that Witt had filed a formal complaint with Xavier alleging that Plaintiff had violated Xavier's policy by raping her on December 31, 2019. Plaintiff "vehemently denied" the accusation. Additionally, Plaintiff informed Xavier that any investigation into Witt's formal complaint would breach the terms of Xavier's Harassment Code and Accountability Procedures ("HCAP") for several reasons: "(1) at the time of the incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitations for filing complaints."
Xavier held an HCAP hearing regarding the rape allegations on July 22, 2022 and July 25, 2022. During the hearing, "the panel embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." The panel allowed witnesses to make vague references to allegations of Plaintiff's conduct beyond the scope of Witt's complaint and permitted hearsay testimony by witnesses without personal knowledge. Moreover, the panel ignored testimony that Witt had consented to the sexual activity. The panel ultimately found Plaintiff responsible for raping Witt and recommended terminating him from Xavier. The panel attributed the rape to an "imbalance of power" between Plaintiff and Witt, which stemmed from the fact that Plaintiff is a male whose position in life and at the University seemingly granted him status and power. This power allowed Plaintiff to overwhelm Witt's ability to resist his actions. Xavier terminated Plaintiff in October 2022.
