I have spent the last several days going through the various accounts of Florida State University student-athlete Jameis Winston's student conduct hearing. And the more I read, the more my initial response of "disappointed but not surprised" has changed. Because I truly am surprised that former Florida Supreme Court Justice Major Harding really felt that there was not enough evidence to confirm the Winston had violated FSU's student code of conduct.
A note about the media coverage of this case and its outcome: several reporters have written something to the effect of "FSU is investigating Winston despite the fact that the prosecutor chose not to file charges against him last year because of lack of evidence." What happened with the potential criminal case (the highly problematic one), has no bearing on this investigation. Winston is being charged with violations of FSU's student code of conduct. The school's investigation is mandatory (and almost 2 years late). There is no "despite."
After two days of hearings earlier this month, which included
multiple witnesses who were questioned by the complainant (victim) and respondent (Winston)
announced in a letter to Winston that he did not find that the
information presented met the preponderance of evidence standard
required in student conduct hearings. Harding was approved by both sides
to oversee the hearing, in part because he had no ties to FSU. Other
panel members, however, were FSU employees.
Both sides had witnesses; both had advisers all of whom were lawyers. Advisers are only allowed to confer and offer advice. All questions to witnesses were asked by the respondent, the complainant or members of the panel. Both the victim and the accused offered opening statements. Winston, somewhat curiously, had his entered into the record seemingly as an attempt to make it appear to be evidence, which it is not. As has been noted already in this 2-year long case, Winston has continually refused to answer questions about the events of that night in early December 2012. This hearing was not very different. He did not, as was his right, take questions about his statement which gave his version of the events of that night. His two witnesses, the roommates and teammates who have already had their own student conduct hearings, also were called and they too--as was their right--refused to answer questions. These are the two men who could have corroborated Winston's version of the events of that night which differ greatly from those of victim and do not hold up to various accounts offered by other witnesses including law enforcement, friends of the complainant, and health professionals.
As a reminder of some of the details: the victim did not know the name of and could not identify Winston, who maintains that the sexual encounter was consensual despite never--as the student conduct code requires--receiving verbal or physical consent. She only recognized him when they, coincidentally, had a class together, even after hearing his name she did not know who he was (i.e., the quarterback for FSU). She sought help immediately after Winston brought her home (she lied to him about where she lived and he dropped her off nearby), from her friends, police (both campus and local), family, and medical professionals (she went to the hospital, had a rape kit performed and asked for a victim's advocate). This was not a case of trying to bilk a celebrity or feeling bad after a consensual sexual encounter and "crying rape." (These narratives are actually quite rare.)
Often in cases of sexual assault--at least in the criminal system--the victim's credibility is questioned. There were questions swirling about alcohol consumption and willingness to get into the cab with the three (implying that she was seeking multiple sexual encounters??), which the victim addressed during the hearing. But Harding was apparently not convinced that the victim did not want to go home with the men. He writes in his ruling that she did not seek help from people outside of the bar where they all were. This presumes a couple of things. One, that she was able to or felt safe enough to protest. Two, that even if she did want to go wherever they were going that such an action was tantamount to consent to sexual relations with any of them. It is not, which is why the fact that even Winston's statement did not include the victim saying yes makes me question what evidence Harding was looking at when making what amounted to a non-decision.
Harding's rationale also questions her motives and credibility in a way that Winston's was never questioned. Winston's credibility was very difficult to question--because he wouldn't answer questions--though his past behaviors are well known (stealing, making disparaging comments about women in a public place, writing and posting a pro-rape song). It is clear that none of these actions were a factor for Harding and also point to a problem that might hurt FSU: they were never the subject of student conduct code investigations.
The victim's lawyer, Baine Kerr, who was present at the hearing as an adviser, said to the press that he and his team do not believe Florida State intends to hold Winston accountable. Given what I have read, I have to agree with him.
There is a 5-day period (which will be in January given the semester break) in which an appeal can be filed, but Kerr has not said whether they will do so. Kerr and his team are also working on a civil lawsuit, and there remains the OCR investigation into FSU's handling of sexual assault cases. In other words, it's not over--for anyone.