Full opinion text
MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS SAYLOR, United States District Judge This is a civil action arising out of an investigation conducted by a university into alleged sexual misconduct. Jurisdiction is ■ based on diversity of citizenship. Plaintiff “John Doe” was an undergraduate student at defendant Brandéis University. For nearly two years, he and another male Brandéis student, “J.C.,” were engaged in a romantic and sexual relationship. After they broke up, J.C. alleged that John had engaged in sexual misconduct during the relationship. The university conducted an investigation and concluded that John was guilty of sexual misconduct and, among other things, made such a notation in his permanent educational record. John has brought suit against. Brandéis, asserting causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) estoppel and reliance; (4) negligence; (5) defamation; (6) invasion of privacy; (7) intentional infliction of emotional distress; and (8) negligent infliction of emotional distress. Brandéis has moved to dismiss all of the claims against it. For the following reasons, the motion to dismiss will be granted in part and denied in part. TABLE OF CONTENTS I. INTRODUCTION.. .569 II. FACTUAL BACKGROUND.. .573 A. The Relationship between John and J.C....574 . ' B. The Accusation against John.. .574 C. Changes to the Handbooks... 575 D. The Process under the 2011-12 Handbook... 576 E. The Process under the 2012-13 Handbook... 577 F. The Process under the 2013-14 Handbook... 578 1. The Statements Phase.. .579 2. The Fact-Finding Phase... 579 3. The Discussion Phase... 580 4. The Responsibility Findings Phase... 581 5. The Deliberations Phase... 581 6. The Outcome Notification Phase... 581 7. The Appeal Phase... 581 8. Access to Records... 581 G. Sexual Misconduct Policies under the 2013-14 Handbook... 582 1. Physical Harm (§ 2.1.d).. .582 2. Invasion of Personal Privacy (§ 2.1.e).. .582 3. Sexual Misconduct (§§ 3.1, 3.2, 3.3)... 582 4. Sexual Harassment (§ 7.2)... 583 H. The Special Examiner’s Investigation ...583 I. The Reading of the “Summary”... 584 J. The Three-Person Panel and the Sanction... 584 K. The Appeal.. .585 L. The Special Examiner’s Report. . .585 1. Allegations Not Sustained by Special Examiner... 586 a. “Unwanted Touching While Walking”... 586 b. “Pornography Incident”... 586 c. “Text Messaging Incident”.. .586 d. “Post-Movie Conduct”.. .586 e. “Decision to Begin Dating”... 586 f. “Post-Shower Conduct”... 587 g. “Mandating that J.C. Sleep Naked”...587 h. “Attempts to Have J.C. Perform Oral Sex”... 587 2. Allegations Sustained by Special Examiner. . .587 a. “Movie Incident”... 587 b. “Bathroom Incident”... 587 c. “Sexual Conduct While Sleeping”.... 588 d. “Performing Oral Sex on J.C.”... .588 3. The Special Examiner’s Conclusions as to the End of the Relationship and J.C.’s Decision to Bring Charges_589 4. The Special Examiner’s Credibility Findings... 590 5. The Special Examiner’s Conclusions ... 591 M. Subsequent Developments... 592 N. Recent Changes to the Process. ...592 III. PROCEDURAL BACKGROUND. . .593 IV. LEGAL STANDARD.. .593 V. ANALYSIS.. .593 A. Breach of Contract.. .593 1. “Reasonable Expectation” of the Student. . .594 a. Elimination of the “Statements Phase”.. .594 b. Elimination of the “Deliberations Phase”.. .595 c. Breach of Express Representation as to Conflicts of Interest on Appeals Board...596 d. Failure to Use the Hearing Process as Described in the 2011-12 Handbook. . .596 e. Failure to Use the Hearing Process as to Charges of Physical Harm and Invasion of Privacy,. .597 f. Failure to Provide a Copy of the Special Examiner’s Report... 598 g. Failure to Maintain Confidentiality of Educational Record,.. 599 h. Arbitrary and Capricious Findings ...600 2. “Basic Fairness”... 601 a. Procedural Fairness... 602 (1) No Right to Notice of Charges... 603 (2) No Right to Counsel.. .604 (3) No Right to Confront Accuser. . .604 (4) No Right to Cross-Examine Witnesses ...605 (5) No Right to Examine Evidence or Witness Statements... 605 (6) Impairment of Right to Call Witnesses and Present Evidence ...605 (7) No Access to Special Examiner’s Report.. .606 (8) No Separation of Investigatory, Prosecution, and Adjudication Functions... 606 (9) No Right to Effective Appeal. . .607 (10) Burden of Proof.. .607 (11) Conclusion... 607 b. Substantive Fairness... 608 (1) The Significance of the Delay in Reporting.. .608 (2) The Significance of the Relationship ...610 (3) The Significance of J.C.’s Abuse of Alcohol.. .611 (4) Conclusion.. .611 3. Summary of Breach of Contract Claims... 611 B. Breach of the Implied Covenant of Good Faith and Fair Dealing.. .612 C. Estoppel and Reliance... 612 D. Negligence.. .613 1. Negligent Retention and Supervision ...613 2. Negligent Failure to Prevent Conflict of Interest.. .614 3. Breach of Duty to Maintain Confidentiality of Educational Record... 614 E. Defamation.. .615 1. Defamation Generally.. .615 2. Aiding and Abetting Defamation ...616 F. Invasion of Privacy.. .616 G. Intentional Infliction of Emotional Distress... 617 H. Negligent Infliction of Emotional Distress... 617 VI. CONCLUSION.. .617 I.Introduction This matter arises from a Brandéis University disciplinary proceeding against plaintiff “John Doe” concerning alleged sexual misconduct. The lawsuit is at a preliminary stage. At this point of the proceeding, the issue for the Court is not whether John actually engaged in any form of sexual misconduct; indeed, the Court is in no position to make such a factual determination. The Court is simply deciding whether John’s claims against Brandéis are sufficiently plausible to survive a motion to dismiss. However, the parties appear to agree on a wide range of facts, including the nature of the procedures employed by Brandéis, the manner in which Brandéis reached its decision, and at least the basic parameters of the relationship between John and J.C., his former boyfriend. John Doe and J.C. entered Brandéis University as freshmen in the fall of 2011. Both were then approximately 18 years old. In September, they began to have sexual relations. By October, they considered each other boyfriends, and for the next 21 months they were in a romantic and sexual relationship. Their friends believed that they were “happy” and “comfortable” together, In the summer-of 2013, between their sophomore and junior years, J.C. broke up with John. The two remained friends for about four months, but over time their relationship began to deteriorate. At some point, J.C. began to abuse alcohol. He also attended two sessions of university-sponsored “sexual assault training,” which began (in his words) to change his “thinking” about his relationship with John. ' Eventually, in January 2014 — two years and four months after they began dating— J.C. filed a complaint of sexual assault against John with Brandéis. That complaint was two sentences long. In its entirety, it read as follows: Starting in the month of September, 2011, the Alleged violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013. Like most universities, Brandéis has a process for addressing claims of student misconduct. In 2011, when J.C. and John began at Brandéis, that process involved a variety of steps, including a hearing before a panel of students and administrators to determine whether the misconduct occurred and to recommend a sanction to the university. Among other things, that process involved what Brandéis termed a student’s “rights to fairness,” such as the right to call witnesses and the right to question one’s accuser. After 2011, however, Brandéis changed its procedures for cases involving alleged sexual misconduct. It retained its normal processes, including the “rights to fairness,” for handling matters such as student theft, vandalism,. physical violence, hazing, and academic dishonesty. As to sexual misconduct cases, however, Bran-déis removed a variety of protections for accused students. By 2014, Brandeis’s policy in sexual misconduct cases had eliminated a hearing of any kind. Instead, it had instituted a procedure under which a “Special Examiner” was appointed to conduct an investigation and decide the "responsibility” of the accused. That procedure was essentially a secret and inquisitorial process. Among other things, under the new procedure, • the accused was not entitled to know the details of the charges; • the accused was not entitled to see the evidence; • the accused was not entitled to counsel; • the accused was not entitled to confront and cross-examine the accuser; • the accused was not entitled to cross-examine any other witnesses; • the Special Examiner prepared a detailed report, which the accused was not permitted to see until the entire process had concluded; and • the Special Examiner’s decision as to the “responsibility” (that is, guilt) of the accused. was essentially final, with limited appellate , review— among other things, the decision could not be overturned on the ground that it was incorrect, unfair, arbitrary, or unsupported by the evidence. The filing of the complaint by J.C. triggered- a “Special Examiner” process at Brandéis. As John eventually learned, J.C. had made twelve sets of allegations against him. The Special Examiner found John “responsible” for four of the twelve claims. None involved claims of rape or other violent sexual assault, or anything like it. Instead, John was found to have committed sexual misconduct in the following ways: First, at the very beginning of their relationship, John placed J.C.’s hand on John’s (clothed) groin while they were watching a movie in a dormitory room. J.C. now contends that the sexual contact was unwanted. John denies that the contact was non-eonsensual, and contends that it was simply the first step in their sexual relationship. Among other things, he notes that the two of them had sexual relations for the first time the very next day, and that they continued to have such relations for most of the next two years. He also contends that J.C. afterward recounted the episode in a humorous manner to friends, although the university would not accept his evidence of that fact, Second, John and J.C. frequently slept together in the same bed during their relationship. According to J.C., John would occasionally wake him up by kissing him, and sometimes persisted when J.C. wanted to go back to sleep. Third, during the relationship, the two used a communal bathroom in the dormitory,, including a communal shower. According to J.C., John would look at his private areas when they were showering together. Fourth, in May 2013, after they had been dating for about a year and a half, J.C. and John visited J.C.’s father’s house in North Adams, Massachusetts. During the trip, J.C. contends that John attempted to perform oral sex on him when he did not want it. The two got in a fight, and John wound up leaving the bed and lying on the floor. The two then made up, and J.C. apologized-to John. The Special Examiner-concluded, based on those incidents, that John had engaged in sexual misconduct, sexual harassment, and invasion of privacy in violation of Brandéis policies. She also concluded that he had committed “violence” against J.C., based on a definition of “sexual violence” that encompassed virtually any form of unwanted sexual activity. Among other things, the Special Examiner based her findings on the following assumptions: • that the long delay in reporting the alleged misconduct, and the failure to make any contemporaneous complaint, had no bearing at all on J.C.’s credibility; • that the existence of a 21-month-long . relationship was irrelevant to.any of the issues in the case, including the issue of consent; • that John’s kissing of J.C. while he was.asleep constituted sexual mis- . conduct, because a person who is sleeping is incapacitated and therefore not capable of giving express consent; and • that J.C.’s abuse of alcohol after the relationship ended bolstered his credibility, on the ground that victims of sexual assault may abuse substances as a consequence of the assault. • As a result of the Special Examiner Process, John received a “Disciplinary Warning” from the university. That sanction, among other things, carries with it a permanent notation on the student’s educational record; according to the complaint, John’s record, will forever state ■ that he committed- “serious sexual transgressions/’ without any explanation of the actual conduct involved. In the words of the complaint, John has,been “effectively labeled” as a “predatory sexual offender,” which is a “lifetime liability” for admission to graduate school or obtaining employment. (Am. Compl. ¶¶ 24-25). The complaint also alleges that Brandéis did not keep the process confidential, and that J.C. and other students have referred to John as an “attacker” and a “rapist” in social media postings and in comments to national and local media. Again, at this point of the proceeding, the Court is not deciding whether John actually engaged in any form of sexual misconduct. But the parties agree on many of the critical facts, including the process Brandéis used to resolve the matter and the contents of the Special Examiner’s Report. And even the agreed-upon facts are sufficient to raise serious and substantial concerns as to whether John was treated fairly. Brandéis, of course, is not a governmental entity, or even a public university. It is not bound by the requirements of the Sixth Amendment, such as an accused’s right to be informed of the nature of the charges, the right to counsel, or the right to confront and cross-examine one’s accuser. Its proceeding was not a criminal prosecution; the university had no power to incarcerate John or deprive him of his property. And it is not generally the role of the federal courts to tell a private university how to conduct its affairs. Nonetheless, Brandeis’s authority to discipline its students is not entirely without limits. Although the relationship between the university and its students is essentially contractual, the university’s disciplinary actions may also be reviewed by the courts to determine whether it provided “basic fairness” to the student. While that concept is not well-defined, and no doubt varies with the magnitude of the interests at stake, it is nonetheless clear that the university must provide its students with some minimum level of fair play. When considering the issues presented in this case, it is impossible to ignore entirely the full context in which they arose. In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims and for the schools to adopt punitive measures in response. That process has been substantially spurred by the Office for Civil Rights of the Department of Education, which issued a “Dear Colleague” letter in 2011 demanding that universities do so or face a loss of federal funding. See Russlynn Ali, Office for Civil Rights, U.S. Dep’t of Educ., Dear Colleague Letter: Sexual Violence (Apr. 4, 2011), http://www2.ed.gov/ abouVoffiees/list/ocr/letters/colleague-201104.pdf (“Dear Colleague Letter”). The goal of reducing sexual assault, and providing appropriate discipline for offenders, is certainly laudable. Whether the elimination of basic procedural protections — and the substantially increased risk that innocent students will be punished — is a fair price to achieve that goal is another question altogether. Because the changes to the process were impelled in large part by the federal government, the issues presented here are not entirely unique, and not confined to a single campus. See Doe v. Brown Univ., 166 F.Supp.3d 177, 180-81, 2016 WL 715794, at *1 (D.R.I.2016); Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 Cal. L. Rev. (forthcoming) at 15-16. For example, in July 2014, Harvard University adopted a new university-wide policy on sexual harassment and sexual violence that appears to have substantial similarities to the Brandéis policy at issue here. See Rethink Harvard’s Sexual Harassment Policy, Boston Globe (Oct. 15, 2014), https://www. bostonglobe.com/opinion/2014/10/14/ rethink-harvard-sexual-harassment-policy/ HFDDiZN7nU2UwuUuWMnqbM/story. html. In response, 28- members of the Harvard Law School faculty issued a statement voicing their “strong objections” to the policy. Id. Among other things, the statement concluded that “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” Id. It called upon Harvard to “begin the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.” Id. The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment. The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom. Id. Like Harvard, Brandéis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision. Put simply, a fair determination of the facts requires a fair process, not tilted to favor a particular outcome, and' a fair and neutral fact-finder, not predisposed to reach a particular conclusion. The principal question for' the Court is whether the complaint plausibly alleges that Brandéis denied John the “basic fairness” to which he was entitled. For the reasons set forth below, the Court concludes that it does. II. Factual Background The facts are set forth as alleged in the amended complaint and in- documents submitted as exhibits to the amended complaint. In addition, the Court has also taken certain facts from documents submitted whose authenticity is not disputed and that are central to plaintiffs claim. See Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993) (explaining that documents whose authenticity is “not disputed by the parties” and “documents sufficiently referred to in the complaint,” among other categories, may be considered on a motion to dismiss). A. The Relationship between John and J.C. Brandéis University is a private university located in Waltham, Massachusetts. (Am. Compl. ¶ 37). It is named for Louis D. Brandéis, a former Associate Justice of the United States Supreme Court and one of the most distinguished judges in the history of the United States. (See id.). Plaintiff “John Doe” and “J.C.” met in August 2011 on the first day of orientation before their freshman year at Brandéis. (Id. ¶¶ 2, 43). At the time, John was 17 years old; J.C. was 18. (Id, ¶ 43). ' The complaint alleges that John was “unsure of his sexual orientation, and had n.ever engaged in . sexual activity with another man.” (Id.). J.C. was “openly gay and. sexually experienced”; John was neither. (Id.). The two quickly became “close friends”; J.C. “knew that John was attracted to him, and they began to flirt with each other.” (Id. ¶ 44). John and J.C. began having sexual relations in mid-September 2011. (Id. ¶¶ 45-47). “In October 2011, John ‘came out of the closet’ to his parents, and he and J.C. revealed to their Brandéis friends that they were boyfriends.” (Id, ¶ 46). For a period of 21 months, between September 2011 and July 2013, John and J.C. were in an “intimate, sexually active, and ... exclusive dating relationship.” (Id. ¶ 47). The period in question, in substance, included their entire freshman and sophomore years. During that entire time, J.C. never complained to John, their friends, their relatives, any Brandéis administrator, any member of campus police, or any member of the law enforcement community about John’s conduct. (Id. ¶¶ 10, 51). Specifically, J.C. never complained that John had performed any sexual act without his consent, had invaded his privacy, had sexually harassed him, or had caused him physical harm. (Id.). In July 2013, J.C. broke up with John. (Id. ¶ 55). J.C. did so because he “félt they had lost a connection” and because “John was not strong-willed enough”; he wanted a “more forceful” partner who would “stand up to him more.” (Id.). After the relationship ended, the two remained, cordial for a period of about four months. (Id. ¶ 56). They had dinner.with friends, worked together on campus projects, and exchanged friendly e-mail messages. (Id.). Near the end of 2013, however, their friendship deteriorated. (Id: ¶57). John was “put off because J.C. ’... had started drinking alcohol to excess, which John perceived as hypocritical given J.C.’s insistence during the [rjelationship that John not drink alcohol.” (Id.). B. The Accusation against John In January 2014, J.C. “observed that a gay male student seemed to be attracted to John.” (Id. ¶ 58). J.C. was also attracted to the student, and John believed that J.C. was jealous of his interest in the other man. (Id. ¶¶ 58, 127). On January 13, 2014, J.C. sent the student a Facebook “friend request,” which the student declined. (Id. ¶ 58). The next day, January 14, 2014 — more than six months after their relationship ended, and approximately 28 months after their first sexual contact — J.C. accused John for the first time of sexual misconduct. (Id. ¶ 59). He did so by filing a formal complaint, called a “community standards report” (“CSR”), with Brandéis. (See id.). That CSR, in its entirety, stated as follows: “Starting in the month of September 2011, the Alleged Violator of Policy [John] had numerous inappropriate, nonconsensual sexual interactions with me. These interactions continued to occur until around May 2013.” (Id.). According to the complaint, on the same day the report was filed, Brandeis’s Dean of Students, Jámele Adams, took “punitive action” against John “without giving [him] an opportunity to explain his side.of the story.” (Id. ¶ 60). Adams banned John from his residence, classes, paid campus job, community advisor position, and “high-ranking student-elected position on a University Board,” and “sequestered him in a campus facility.” (Id.). Adams did so based only on the two-sentence allegation contained in J.C.’s report. He had “no knowledge of any facts” underlying the allegation, and “had no information remotely suggesting John was a danger to J.C. or the Brandéis community.” (Id.). Two days later, on January 16, 2014, Brandéis notified John that J.C.’s accusations raised six potential violations of Brandeis’s “Rights and Responsibilities” booklet: (1) sexual misconduct; (2) taking sexual advantage of incapacitation; (3) lack of consent to sexual activity; (4) sexual harassment; (5) causing physical harm to another; and (6) invasion of privacy. (Id. ¶ 61). Brandéis did not further elaborate or “inform John of any of the alleged acts that formed those claims.” (Id.). Brandéis also notified John that his case would be handled through its new “Special Examiner’s Process.” (Id. ¶ 62). C. Changes to the Handbooks When John entered Brandéis as a freshman in August 2011, the university’s method of handling claims of student misconduct was through a process called the Student Conduct Hearing Process. That process was set forth in detail in the 2011-12 edition of the “Rights and Responsibilities” Handbook (the “2011-12 Handbook”), which functions as Brandeis’s student handbook. (Am. Compl. Ex. A, 2011-12 Handbook §§ 18.0-23). ■ John- acknowledges that he agreed to be bound by the rules and regulations contained , in the 2011t12 Handbook as a condition of his enrollment. (Am. Compl. at ¶ 169). As set forth below, the process set forth in the Handbook for claims of sexual misconduct changed each year that John was at Brandéis. It appears that many of the changes were implemented as a result of a “Dear Colleague” letter issued in April 2011 by the United States Department of Education, Office for Civil Rights, that purported to interpret Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., and its implementing regulations, 34 C.F.R. Part 106. See Dear Colleague Letter. According to the complaint, because the alleged incidents occurred during the 2011-12 and 2012-13 aeádemic years, the procedures set forth in those Handbooks should have been used in the course of the investigation. (Am. Compl. ¶69). Instead, Brandéis applied the 2013-14 Handbook to govern the procedures to be used in the Special Examiner Process, ostensibly because J.C. filed the charges in the 2013-14 academic year. (Id.). Because the central claim of the complaint is for breach of contract, and because the student handbooks comprising the contract changed each year, a detailed examination of each handbook is warranted. D. The Process under the 2011-12 Handbook Both John and J.C. entered Brandéis as freshmen in the fall of 2011. In the 2011-12 Handbook; a student accused of serious misconduct was given the right, among other things, to be informed of the charges against him in detail: In cases where [the University] decides that there is evidence of a violation that warrants referral to the conduct system the accused student will be contacted to schedule a preliminary meeting with the appropriate administrator .... This meeting will serve to inform the student of the details of the charges and educate the student about the conduct system. The student will have the opportunity to ask questions and make statements. After this preliminary meeting the student will receive written charges. (2011-12 Handbook § 19.1). Under the 2011-12 Handbook, a student accused of misconduct had a right to request a hearing before a Student Conduct Board. (Id. § 19.1). The Student Conduct Board consisted of two students and two faculty members for academic violations, and three students and one faculty member for all other violations. (Id. § 20.2). Both the accused and the accuser were required to be present at the hearing. (Id. § 19.9). The accused and the accuser had “the right to view and question all evidence and reports presented” during the hearing. (Id. § 19.11). They also both had the right “to question all witnesses appearing” at the hearing. (Id.). Unless “coexisting criminal charges” were pending against the accused, neither party was permitted “to employ professional legal counsel or other persons from outside the University community to present the case before the Board or to advise the student during the hearing.” (Id. § 19.8). Both parties were, however, permitted to bring “an advisor of his or her choice from the University community to provide passive assistance during the hearing.” (Id.). At the hearing, the chairperson was required to give a “statement of the student’s rights to fairness under this process.” (Id. § 23). Among the “rights to fairness” provided to the accused were as follows: 1. To bring one adviser of the accused/accuser’s choice from the University community to provide passive assistance during the hearing (the adviser may not serve as a witness) 2. To present witnesses on their own behalf 3. To question witnesses appearing against them 4. To submit verbal arguments 5. To remain silent and not testify against themselves. The accused/accuser should remember that if they remain silent, the Board is compelled to hear the case and render a decision based upon the evidence presented. (Id.). Both the accuser and the accused had the right to re-question each other after the other witnesses had testified. (Id.). Board members were also permitted to question the parties and all witnesses. (Id.). A footnote to the 2011-12 version of the Handbook stated as follows: Hearing procedures may differ in cases involving allegations of sexual misconduct, sexual harassment or sexual discrimination in accordance with Title IX. (Id. § 23.0 at 30 n.l). The Handbook did not, however, indicate how those procedures might “differ.” Among other things, the footnote does not indicate that the accused would not be entitled to know the specific charges against him, to see and hear the evidence, or to confront and cross-examine his accuser. At the conclusion of the hearing, the Board was required to make one of three choices: to make a finding of “not responsible”; to make a finding of “responsible,” with a recommendation of a sanction; or to continue the case “to obtain additional information or for further consideration.” (Id. § 19.13). The 2011-12 Handbook further provided that “[i]n cases where the accused student denies responsibility, the burden of proof shall rest upon the accuser.” (Id, § 19.12). The accuser was required to prove his or her allegations by “clear and convincing evidence,” (See id. § 19.13). However, a “note” to the Handbook provided as follows: “In hearings that involve allegations of sexual misconduct, sexual harassment or sex discrimination ... the standard of evaluation shall be preponderance of the evidence, instead of clear and convincing evidence.” (Id. § 19.13). The hearing administrator of the Student Conduct Board was required to prepare a Hearing Report summarizing the evidence and its decision. (Id. § 19.14). The 2011-12 Handbook also provided for an appeal by the accused and (in sexual misconduct cases only) by the accuser. (Id. § 19.16). Written appeals were considered by a University Appeals Board (“UAB”) consisting of three voting members (one student and two faculty) and a tenured-faculty chairperson. (Id. §§ 20.7-8). The UAB had the authority to uphold the original finding, find the accused not responsible, or increase or decrease the sanction. (Id. § 19.16). No sanctions would take effect “until approved or modified by the Dean of Student Life (or designee) or the Director of Student Rights and Community Standards.” (Id.).' Appeals, however, were limited to certain narrow issues. (Id.). E. The Process under the 2012-13 Handbook Beginning in 2012-13, the university replaced the Hearing Process in some circumstances with a Special Examiner Process. (Am. Compl. ¶ 68). It did so, however, only for allegations involving sexual misconduct or discrimination (including sexual harassment and sex discrimination). (Id.-, Am. Compl. Ex. B, 2012-13 Student Handbook § 22.6). All other matters involving alleged student misconduct remained subject to the Hearing Process. (Id. § 19). The 2012-13 Special Examiner Process differed from the Hearing Process significantly. It did not provide for a “hearing” in any sense of the word. Instead, the university would appoint a Special Examiner, who would investigate the claims and make a recommendation to the Dean of Student Life. The accused was given an opportunity to meet (separately) with the Special Examiner during the investigation and to submit his, own evidence, but was provided little else in terms of procedural protection. There was no requirement in the 2012-13 Handbook that the accused be informed of the “details of the charges.” (Compare 2011-12 Handbook s 19.1), Instead, after receipt of a complaint — titled a Community Standards Report (“CSR”) — the Special Examiner would “meet in-person with the Accuser” and simply “request” that the accuser “compose in writing a thorough statement of the allegation(s) if the contents of the, initial report do not represent a full account” of the events giving rise .to the report. (2012-13 Handbook § 22.6). If such a statement were provided, it would eventually be shown to the accused, although not until after the accused had prepared a response to the allegations. (Id.), There was no requirement that copies of any “substantiating materials” submitted by the accuser, or the names of any witnesses, be shown or provided to the accused at any time. The Special Examiner chose which, if any, witnesses to interview; what questions to ask of everyone interviewed; and what information, if any, the accused received during the process. The accused was no longer informed of his or her “rights to fairness.” The accused had no right to confront or cross-examine the accuser, no right to call witnesses, and no right to confront or cross-examine the accuser’s witnesses. The accused had no right to review all of the evidence. And the Special Examiner was required to use the “preponderance of the evidence” standard, rather than the “clear and convincing evidence” standard, “in evaluating the responsibility of the Accused.” (Id. § 22.6 at 36). The Dean of Student Life, rather than the Special Examiner, rendered the final decision, (Id. at 39). The Dean might either find that the accused was responsible, and impose accompanying disciplinary sanctions, or that the accused was not responsible. (Id.). And the accused’s right of appeal remained highly circumscribed. (See id.). F. The Process under the 2013-14 Handbook As noted, the procedures set forth in the 2013-14 Handbook were used to resolve John’s matter. The 2013-14 Handbook retained the Special Examiner Process for sexual misconduct cases, but with significant revisions to the process as it was originally described in the 2012-13 Handbook, and with even fewer protections for the accused. The revised Special Examiner Process consisted of seven “phases”: Statements, Fact-Finding, Discussion, Responsibility Findings, Deliberations, Outcome Notification, and Appeal. (Am. Compl. Ex. C, 2013-14 Handbook § 22.6 at 43-47). Among other changes, the Special Examiner would no longer “request” that the accuser provide a “thorough statement” or “full account” of the charges; instead, under the new procedures, an administrator would merely “suggest” that such a statement be submitted. (Id. at 43). Furthermore, the requirement that the accused would be shown any such statement was eliminated. Under the new process, the Special Examiner was made the sole decision-maker as to “responsibility” (that is, guilt). The “outcome” (that is, the penalty) would be recommended by a special panel of three university administrators, with the final decision to be made by an administrator. Appeals were still narrowly circumscribed; furthermore, under the new process, no students were permitted to sit on the appeals board. Because Brandéis employed the procedures in the 2013-14 Handbook to resolve the allegations against John, the Court will examine those procedures in some detail. 1. The Statements Phase The first phase of the 2013-14 Special Examiner Process was the “Statements Phase,” in which the school would collect statements and information from both the accuser and the accused. (Id. § 22.6 at 43-44). After receipt of a CSR, the Director of the Department of Student Rights and Community Standards — not the Special Examiner — would “meet in-person with the accuser.” (Id.). Instead of “requesting]” that the accuser “compose in writing a thorough statement of the allegation^) if the contents of the initial report do not represent a full account” of the events giving rise to the report, the 2013-14 Handbook stated that the Director should “suggest” that the. accuser do so. (Id.). “In addition to this statement, any other substantiating materials, such as email, text messages, photographs, records, names of witnesses, names, etcetera, should be submitted [by the accuser] to the Director_” (Id.). The Director would then contact the accused by e-mail and inform him that a CSR has been filed against him. (Id.). The Director would not, however, provide a copy of the CSR to the accused. Within two business days, the accused would have an opportunity to “meet in person” with the Director. The Director would “show” the accused the CSR and “suggest” that he or she “compose in 'writing a thorough response to the allegations” and submit documents and names of witnesses for consideration by the Special Examiner in the investigation. (Id.). The accused at 'that point was permitted to submit “any other substantiating materials, such as e-mail, text messages, photographs, records, names of witnesses, names,'etcetera.” (Id.). There was no requirement that the accuser actually provide a “thorough statement” or “full account” of the alleged offenses. Even assuming that the accuser provided such a statement or account to the university, the accused had no right to see it. Indeed, the accused was required to provide his or her own detailed response without an opportunity to see or know the details of the accusation. There was likewise no requirement that copies of any “substantiating materials” submitted by the accuser, or the names of any witnesses, be provided to the accused at any time. 2. The Fact-Finding Phase The Fact-Finding Phase marked the initial appearance of the Special Examiner in the process. The Special Examiner alone investigated the allegations. (Id. § 22.6 at 44). That same person was given complete authority to decide whether the accused was “responsible” for the alleged violations; in other words, the Special Examiner was simultaneously the investigator, the prosecutor, and the judge who determined guilt. The Special Examiner was required to conduct interviews with the accuser and the accused “separately and in-person.” (Id. § 22.6 at 45). The Special Examiner could interview witnesses identified by the parties, “as well as those identified by the Special Examiner.” (Id.). The Special Examiner could also consider documents and other physical evidence. (Id.). Those documents and physical evidence “deemed by the Special Examiner to be of material importance to the Deliberations Phase [would] be logged and shared equally with the parties to ensure the opportunity for response.” (Id.). Again, the Special Examiner chose which, if any, witnesses to interview; what questions to ask of anyone interviewed; and what information the accused received during the process. The accused had no right or opportunity to confront his accuser, or to cross-examine the accuser in any way. The accused likewise had no right or opportunity to confront or cross-examine the witnesses against him. And the accused had no right to examine or obtain copies of witness statements or any “substantiating materials.” There was no right to counsel under the 2013-14 Handbook. As before, the 2013-14 Handbook instructed the Special Examiner to use the “preponderance of the evidence” standard “in evaluating the responsibility of the Accused.” (Id. § 22.0 at 43). After completing the investigation, the Special Examiner was required to prepare a Report. (Id. § 22.6 at 45). The Special Examiner’s Report would “summarize[] undisputed and disputed facts [and] offer[ ] conclusions about the credibility of testimony.” (Id.). The Special Examiner also made “a finding about whether the Accused is responsible for any or all charges.” (Id.). The Report was submitted to the Senior Student Affairs Officer or his or her designee (the “SSAO”) “in support of the Responsibility Findings and/or Deliberations Phase of the process.” (Id. § 22.6 at 42). A copy of that Report was not provided to the accused at any point in the investigation, even to permit the accused to prepare an appeal. 3. The Discussion Phase Under the 2013-14 Handbook, the SSAO “conducted] the Discussion Phase conversations with the parties and communicate[d] findings to the parties made by the Special Examiner.” (Id. § 22.6 at 43). During the Discussion Phase, the accuser and the accused were provided separate opportunities to meet with the SSAO “to hear and respond to the findings made by the Special Examiner” and “to offer rebuttal or new information to the [SSAO] based on the findings.” (Id. § 22.6 at 45). The accuser and the accused, in separate meetings, would “listen to the [SSAO’s] summary of findings and engage in dialog with the [SSAO] about these findings.” (Id. § 22.6 at 46). Each party had two business days within which to provide “new, pertinent information or names of witnesses for the [SSAO’s] consideration.” (Id.). If after the meetings and after submission of new information or witness names, the SSAO sought “additional fact-finding,” the SSAO would request the Special Examiner “to make any and all necessary inquiries.” (Id.). 4.The Responsibility Findings Phase In the Responsibility Findings Phase, if the accused was found “not responsible,” the SSAO would contact the parties; if he was found “responsible,” the process would move to the Deliberations Phase. (Id.). 5.The Deliberations Phase In the Deliberations Phase, a panel of three University administrators or faculty members, appointed by the SSAO, would “receive the Special Examiner’s report and make recommendations as to the outcome(s) for the Accused.” (Id. § 22.6 at 46). The panel will consult the Special Examiner’s report and will be entitled to interview the Special Examiner. The panel will not interview the parties, witnesses, or other experts or individuals. Upon voting, the panel will communicate its recommendations about the outcome(s) for the Accused to the [SSAO]. (Id.). Again, the three-person panel could review the Report, but the accused could not. The SSAO would then “render the final decision as to any outcomes.” (Id.). However, the Special Examiner’s verdict was final; there was nothing in the policy that permitted either the panel or the SSAO to reverse or modify a finding that the accused was “responsible.” 6.The Outcome Notification Phase In the Outcome Notification Phase, the SSAO would communicate the final decision to the accused and the accuser. (Id.). Any sanction would take effect immediately, regardless of any appeal. (Id.). 7.The Appeal Phase In the Appeal Phase, both the accused and the accuser were “entitled to appeal the final decision by the panel in the Special Examiner’s Process” to the UAB. (Id.). (As noted, the panel actually made no “final decision” of any kind, but only a recommendation to the SSAO.) Unlike in the 2012-13 incarnation of the Handbook or the normal appeal process for non-sexual misconduct cases, only faculty members, and not students, could serve as UAB members in appeals of Special Examiner matters. (Id.). As before — and despite the consolidation of the powers of investigation, prosecution, and adjudication in the Special Examiner — the accused’s right of appeal was narrowly limited. Appeals could not be based upon “dissatisfaction with an imposed sanction,” but “based only on specific evidence, presented in writing” of claims of “fraud,” “denial of rights under this process,” “procedural error,” or “the claim of new evidence not previously available, which would have materially affected the decision.” (Id. § 22.6 at 46-47). There was no right of appeal on the grounds that there was insufficient evidence to sustain the findings; that the Special Examiner was mistaken as to any factual issue; that the Special Examiner acted arbitrarily or capriciously; or that the Special Examiner was biased. Moreover, the accused was expected to prepare his appeal without access to the Report on which the finding of responsibility was based. Regardless of the UAB’s conclusions, the SSAO retained the discretion “to amend or uphold the original final decision.” (Id. § 22.6 at 47). 8.Access to Records The 2013-14 Handbook states that “[d]ocuments generated from the Special Examiner’s Process will be retained pursuant to the rules in Sections 17.4, 19.5, 19.6.j.” (Id.). Section 19.5 states that “[a] record of the Administrative Action, com-pris[ing] of a summary of the evidence presented and decision rendered, shall be made by the administrator”; that any such records shall be maintained for seven years; and that “[ajccess to such records is governed by the University Records Policy (see sections 17.4 and 19.6.j).” (Id. § 19.5). Section 19.6.j is similar to section 19.5, except that it applies to a “Written Hearing Report,” which is not prepared during the Special Examiner’s Process (because no hearing takes place). (Id. § 19.6.j). Section 17.4, in turn, provided as follows: The Federal Family Educational Rights and Privacy Act of 1974 (FERPA) gives each enrolled student at Brandéis certain rights, including access to the student’s educational records, the right to request amendment of those records where the student believes a record is inaccurate or misleading, and the right to add a statement presenting the student’s view if the records are not amended. A detailed statement of the rights and responsibilities of a student under the Act, the location of all records pertaining to a student, and the procedures for requesting access are contained in the Brandéis University Records Policy. The policy is available from the University Registrar and at: www. brandeis.edh/registrar/bulletin/Edue RecordsPolicy.html. (Id. § 17.4). The records policy and FER-PA state that students may have access to their educational records within 45 days after making a request. (Am. Compl. ¶ 154).- ■ G. Sexual Misconduct Policies under the 2013-14 Handbook ■The Brandéis Student Handbooks for 2011-12, 2012-13, and 2013-14 set forth a series of “standards” applicable to Bran-déis students. As set forth below, the Special Examiner applied the substantive policies (but not the procedures) for the academic year in which the alleged misconduct occurred. The policies relevant to this matter are the following, which remained the same each year except as noted. 1.Physical Harm (§ 2.1.d) Section 2.1.d provided: “The University will not tolerate any behavior that ... physically harms or is considered unwanted physical contact (some examples: hitting, pushing, or physical altercations/violence of any kind).” (2013-14 Handbook § 2.1.d). 2.Invasion of Personal Privacy (§ 2.1,e) Section 2.1.e addressed invasion of privacy: “The University will not tolerate any behavior that ... invades personal privacy _” (Id. § 2.1.e). 3.Sexual Misconduct (§§ 3.1, 3.2, 3.3) The policies concerning sexual misconduct were principally set forth in Sections 3.1 through 3.3: 3.1. Students are prohibited from engaging in sexual misconduct. Sexual contact that occurs without the explicit consent of each person involved may be considered sexual misconduct. Consent must be clearly and affirmatively communicated, mutual, noncoercive, and given free of force or threat of force. A person who is physically or mentally incapacitated by drugs, alcohol, or other circumstances is not capable of giving consent. Physical or mental incapacity means the lack of ability to appreciate the fact that the situation is sexual, and/or the inability to rationally and reasonably appreciate the nature and extent of that situation. ... 3.2. ... [TJaking advantage of someone’s incapacitation or intoxication for the purpose of engaging in sexual activity is considered sexual misconduct. 3.3. Consent or lack of consent may be communicated verbally or through actions but if a refusal to engage in sexual activity is communicated at any time then the activity must cease immediately. Lack of consent may also be inferred from the use of force, threat, physical intimidation, or advantage gained by the Accuser’s mental or physical incapacity or impairment of which the Accused was aware or should have been aware. Prior sexual activity or an existing acquaintanceship, friendship, or other relationship that has been sexual in nature does not constitute consent for the continuation or renewal of sexual activity. (Id. §§ 3.1, 3.2, 3.3). 4. Sexual Harassment (§ 7.2) The 2013-14 Handbook prohibited sexual harassment, and provided a list of examples, including “[ujnwelcome sexual conduct” and “pressure to engage in sexual activity of an implied or explicit nature.” (Id. § 7.2). The Handbook provided that such conduct is “regarded as harassment when the conduct has the purpose or effect of unreasonably interfering with a person’s education or work performance by creating an intimidating, hostile or offensive environment in which to work, study, or live; or otherwise adversely affects a person’s employment or educational opportunities.” (Id. § 7.1). H. The Special Examiner’s Investigation Brandéis hired an outside lawyer to serve as the “Special Examiner” for John’s case. (Am. Compl. ¶ 90). The Special Examiner then began to interview witnesses and prepare a report. The complaint alleges that immediately after receiving notice of the charges against him on January 14, 2014, and for weeks thereafter, John repeatedly asked university officials to inform him of the factual bases for the charges against him. (Id. ¶ 87). He had not been provided with anything more than J.C.’s vaguely worded accusation. According to the complaint, John “still had no idea what he was alleged to have done wrong during his nearly two-year [rjelationship with J.C.” (Id.). The university refused his requests. (Id. ¶ 88). According to the complaint, within days of the filing of the CSR, Brandeis’s General Counsel told John that the Dean’s office had received “substantially more information” as to J.C.’s accusations. (Id. ¶ 148). However, during the “Stateménts Phase” of the investigation, no additional information was ever provided to John. (Id.). According to the complaint, it was not until February 2014, when John had his first interview with the Special Examine!1, that he began to learn of the factual allegations behind the charges. (Id. ¶ 89). Even then, John was forced to speculate based on the particular questions the Special Examiner asked him about certain incidents. (Id.). The Special Examiner questioned John about John and J.C.’s use of the communal bathrooms, about “wake-up morning kisses,” and whether John had slept on the floor during a visit to J.C.’s father’s house. (Id. ¶ 93). Based on those questions and others, John believed that certain incidents must have been brought up during J.C.’s two interviews with the Special Examiner in January and February. (Id. ¶ 89). Over the next three months, the Special Examiner interviewed John three more times, and interviewed J.C. two more times. (Id. ¶ 91). The Special Examiner also interviewed two Brandéis administrators, one of whom was identified by John; two other witnesses identified by John; and four additional witnesses identified by J.C. (Id.). According to the complaint, none of the witnesses were actual eyewitnesses to any of the alleged incidents. (Id.). At no point was John allowed to question J.C. or otherwise to confront his accuser. Nor was he allowed to confront any of the other witnesses or conduct any kind of cross-examination. Furthermore, John was never informed what J.C.’s witnesses told the Special Examiner. (Id. ¶¶ 94-95). As set forth below, the Special Examiner ultimately concluded that John was responsible for a variety of charges arising out of four separate incidents. (Id. ¶ 98). I. The Reading of the “Summary” According to the complaint, Lisa Boes, Brandeis’s Dean of Academic Sendees, was chosen to act as Brandeis’s “final decision maker” in John’s case. (Id. ¶ 96). (Presumably, she was the designee of the SSAO selected to conduct the Discussion Phase and any subsequent phase.) According to the complaint, she was chosen because the Brandéis, administrator who would have normally presided over the process had recused himself; it further alleges that she was inexperienced and “ill-prepared” for the role. (Id. If 97). John met with Boes on April 24, 2014. (Id. ¶ 96). At their meeting, Boes refused to give John a copy of the Special Examiner’s Report. (Id. ¶ 98). Instead, she simply read aloud a summary that she had prepared of the Special Examiner’s findings. (Id. ¶ 96). John was likewise not given a copy of the summary. According to the complaint, John was “stunned” by the reading of the summary. (Id. ¶ 30). On May 2, 2014, John responded to the summary by supplying additional facts, names of witnesses, and a sworn affidavit. (Id. ¶ 131). According to the complaint, Boes refused to accept at least some of that evidence. (See id. ¶ 110). On May 12, 2014, Boes notified John that on the basis of her review of the Report and John’s response to the summary, she concurred with the Special Examiner’s findings on all charges. (Id. ¶ 132). Boes accepted the findings unilaterally and without the recommendation of any: panel. (Id. ¶ 133). J. The Three-Person Panel and the Sanction After accepting the findings of the Special Examiner, Boes convened a three-member panel to recommend a sanction. (Id. ¶ 134). The panel did not consider the merits of the Special Examiner’s finding that John was responsible for the charges. The panel either gave or recommended that John receive a “disciplinary warning.” (See id. - ¶ 135). According to the complaint, the warning was “the lightest sanction possible.” (Id.). The complaint further alleges that “[tjhrough this sanction, the Panel members clearly signaled that they did not agree with the findings or concluded that the conduct [at] issue was not serious and did not warrant the labels put on it by the. Special Examiner.” (Id.). The disciplinary warning required John to undergo sensitivity training. More importantly, it resulted in the addition of a notation in John’s permanent education record, stating that he was found responsible for sexual misconduct, lack of consent, taking advantage of incapacitation, sexual harassment, physical harm, and invading personal privacy. (Id. ¶ 136). The notation did not provide any explanation for the conduct underlying the charges for which John was found responsible. (Id.). When John received notice of the sanction, he again asked Brandéis for a copy of the Special Examiner’s report for use in his appeal. (Id. ¶ 138). He also asked for the Special Examiner’s witness interview notes. (Id.). Once again, Boes refused, as did Brandeis’s General Counsel, Chief Legal Officer, and Senior Vice President of Students and Enrollment. (Id, ¶ 140). K. The Appeal John appealed the Special Examiner’s findings on grounds of procedural error, denial of rights, and fraud. (Id. ¶ 141).-On June 17, 2014, Boes informed John that three faculty members had been selected to serve on the appeals board, and that “members of the [board] do not interact with either party or their advisors about the process or appeal materials.” (Id. ¶ 160). She also assured John that the members of the board had been “vetted for potential conflicts prior to being selected.” (Id.). According to the complaint, John later learned that the chair of the appeals board and J.C.’s advisor for the Special Examiner process had collaborated on a Brandeis-sponsored Subcommittee on Sexual Violence during the pendency of that process. (Id. ¶ 161). On June 20, 2014, the appeals board rejected John’s appeal. (Id. ¶ 142). L. The Special Examiner’s Report In July 2014 — after Brandéis had denied his appeal and closed his case — Brandéis finally gave John a copy of the Special Examiner’s report. (Id. ¶ 154). The Special Examiner’s Report is dated April 16, 2014. (Def. Mem. Ex. B, Special Examiner’s Report). It is 25 pages long, single-spaced, without exhibits. (Id.). The Report analyzed twelve separate sets of claims made by J.C. against John. (Id. at 5-12). Six of those claims allegedly occurred during the “pre-dating relationship,” and six allegedly occurred during the relationship itself. (Id.). The Special Examiner organized the claims as follows: A. August 2011 through Approximately October 18, 2011 (Pre-Dating Relationship) 1. Unwanted Touching While Walking 2. Pornography Incident 3. Text Messaging Incident 4. The Movie Incident 5. Post-Movie Conduct 6. Decision to Begin Dating B. Dating Relationship 1. Bathroom Incidents 2. Post-Shower Conduct 3. Mandating that J.C. Sleep Naked 4. Sexual Conduct While Sleeping 5. Attempts to Have J.C. Perform Oral Sex 6. Performing Oral Sex on J.C. (Id.). As set forth below, the Special Examiner found that the evidence was insufficient, and. that John was therefore “not responsible” as to eight of the twelve alleged claims. 1, Allegations Not Sustained by Special Examiner a- “Unwanted Touching While Walking” J.C. alleged that John occasionally touched J.C. “in a sexual manner” while they were walking, such as bending over and forcing J.C. “to walk into his 'butt.” (Id. at 5, 18). None of their friends had ever witnessed any such conduct, and John denied that it had occurred, The Special Examiner concluded that the evidence was “insufficient to indicate that these incidents occurred.” (Id. at 18). b.“Pornography Incident” J.C. alleged that John sometimes asked him if he wanted to watch pornography on his laptop computer. (Id. at 6, 22). If J.C. did not want to, John would sometimes move the laptop so “it was in front of [his] face,” and J.C. would then protest or threaten to leave the room. (Id. at 6). Again, no'friends had witnessed such conduct, and John denied that it occurred. (Id. at 22). The Special Examiner found the evidence was insufficient as to that claim. (Id.). c.“Text Messaging Incident” J.C. alleged that in the fall of 2011, John texted him 10 or 12 sexually explicit messages. (Id, at 6, 22). J.C. asked him to stop. (Id. at 6). Neither party preserved any of the texts messages. (Id.). The Special Examiner found the evidence was insufficient as to that claim. (Id. at 22). d.“Post-Movie Conduct” As set forth below, J.C. alleged that in mid-October 2011, John put J.C.’s hand on John’s (clothed) groin while watching a movie in a friend’s room. J.C. further alleged that during some period after, the “movie incident,” John was occasionally naked in J.C.’s room, occasionally tried to kiss him, and once put his hand on-his groin, (Id. at 7, 19). When J.C. objected, John “sulked” and was “moody.” (Id. at 19). None of thé witnesses' observed any such behavior. (Id.). The Special Examiner found the evidence was insufficient as to that claim. (Id.). e.“Decision to Begin Dating” The Special Examiner’s report as to this claim reads as follows:. After the Movie. Incident, [J.C.] and [John] began “quietly hooking up” according to [John] but did not immediately begin dating. According to [J.C.],-he was unsure whether he wanted to begin dating someone who was not out of the closet. [John] recalled that he was conflicted about whether he wanted to “come out” as he believed that this could ruin his future in politics. [J.C.] stated that he felt coerced into starting a dating relationship with [John] because [John] stated that he only would come out if [J.C.] promised to be in a relationship with him. According to [J.C.], this put him in an awkward position. [J.C.] and [John] had multiple conversations about this. According to [J.C.], [John] was very persistent and [J.C.] finally stated that he might consider being his boyfriend if [John] came out. Approximately a week before [John] and [J.C.] began dating, they went to a performance at Chums Coffeehouse. [J.C.] commented that one of the performers was attractive and [John] became jealous. This led to discussions between [John] and [J.C.]- regarding their relationship. On or around October 17, 2011, [John] t