A copy of the decision, dated Dec. 19, written by retired Florida Supreme Court Justice Major Harding in the Jameis Winston Florida State code-of-conduct hearing was obtained by FOX Sports. It is printed in its entirety below. The name of Winston’s accuser has been redacted. FOX Sports does not identify persons alleging sexual assault or victims of sexual assault.
I, Major B. Harding, have been appointed to sit as the hearing body in your student conduct case. You have been charged with the following four violations of section 6C2R-3.004(1 )(e) ofthe Florida State University Student Conduct Code:
I. Sexual Misconduct.
a. Any sexual act that occurs without the consent of the victim, or that occurs when the victim is unable to give consent. Consent is defined as the willing and clear participation in the sexual act. Inability to give consent includes but is not limited to situations where the individual is:
i. under the influence of alcohol, drugs or other substances (including but not limited to prescribed medications); ii. unconscious, asleep, ill or in shock; iii. under the age of eighteen and therefore legally incapable of giving consent; or
iv. known by reason of impairment, mental condition or developmental or physical disability to be reasonably unable to give consent.
Consent is not freely given if no clear verbal consent is given; if the individual is not able to give consent or if consent is achieved through force, threat of force, or coercion. Consent to one form of sexual activity does not imply consent to other forms of sexual activity. Consent is not the lack of resistance; there is no duty to fight in order to indicate lack of consent. Consent can be withdrawn at any time, as long as the withdrawal is clearly communicated by the person withdrawing consent through words or actions.
c. Conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person. This includes unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments.
a. Physical violence towards another person or group.
b. Action(s) that endanger the health, safety, or well-being of another person or group.
The burden of proof in all cases under the Code is the preponderance of the evidence and rests with the University. Stated another way, the evidence must show that it is more probable than not that you are responsible for the charged violations. After a thorough review, the evidence before me does not satisfy this threshold and, therefore, you are not responsible for the aforementioned charged violations.
The investigative hearing materials consisted of over 1,000 pages of documents as well as electronically stored data. In addition, substantial training materials were provided, and I have reviewed the same. The parties were each afforded the opportunity to supplement the record and availed themselves of such an opportunity. In making my determination, I reviewed and considered the investigative healing materials; the supplemental materials submitted by the parties; witness testimony received at the hearing; and exhibits 1-5, 9, and 10 admitted without objection at the hearing. My determination is based solely on this evidence.
Advisor for (accuser) objected to the admission of proposed exhibits 6, 7, and 8 on the basis that they were not timely submitted prior to the hearing. I deferred ruling, and the exhibits were numbered for reference at that time. The parties were given deadlines by which to submit supplemental materials. You and your advisor were aware of this deadline and timely submitted other supplemental materials, but proposed exhibits 6, 7, and 8 were not submitted. As such, these proposed exhibits were permitted to be used as demonstrative aids at the hearing but are not admitted into evidence. I have not considered them. Regardless, proposed exhibits 6, 7, and 8 to be relevant to the narrow issues before me, and their admission would have had no bearing on my determination.
Findings and Application of Fact
It is undisputed that you and (accuser) had sexual intercourse in the late evening and/or early moming (sic) hours of December 6 and 7, 2012, respectively. The focal point, however, is whether that and/or other sexual activity was consensual; whether you engaged in sexual conduct that created an intimidating, hostile, or offensive environment; or whether you engaged in physical violence or other conduct which endangered another person.
The Code defines consent "as the willing and clear participation in the sexual act." The Code elsewhere states that "(clonsent is not freely given if no clear verbal consent is given." Historically, in student conduct cases where consent is disputed, consent has been considered in light of all of the circumstances, verbal and nonverbal. This is a reasonable interpretation and application of the Code.
The sequence of events began at Potbelly’s on the evening of December 6, 2012. During the course of the evening, (accuser) met and gave her phone number to one of your acquaintances, Mr. Casher. You testified that you subsequently danced with (accuser) for a period of time. Mr. Jordan stated that he saw her dancing with a black male.
As closing time approached, (accuser) was with her friend Ms. Kessler. Ms. Kessler testified that (accuser) received a text message from a number not saved in her contacts, presumably a new number, asking her to meet them outside. (accuser) showed the text message to Ms. Kessler. Ms. Kessler indicated to (accuser) that she could go if she wanted, and (accuser) left.
You likewise testified, albeit after having ample time to review the previous statements of Ms. Kessler and (accuser), that you texted (accuser), and she came outside to meet you. (accuser) denied knowledge of the text message, and no such text message could be found. Investigator Newlin testified, however, that the inability to find the text message did not preclude its existence and that there were several issues which could have prevented its retrieval.
You, Mr. Casher, and Mr. Darby each stated that (accuser) voluntarily got into a cab with you to leave Potbelly’s. The evidence further shows that the area outside of Potbelly’s, where (accuser) met you and got into the cab, was active with other students, bar security, and cabs at that time. (accuser) testified that while she did not physically resist or seek help her conduct was not voluntary because she was intimidated and/or scared of the consequences of not cooperating and getting in the cab. (accuser) provided the same response as to why she did not seek help from the cab driver or physically resist or seek help when leaving the cab.
(Accuser)’s beliefs and mental state could have affected her decision making. Further, (accuser) did not identify any evidence that you acted in a manner that would reasonably justify her developing such beliefs. The evidence is undisputed that people were present, but (accuser) did not seek help. This lack of evidence, among other things, is relevant to the charged violations of physical violence and endangerment.
(Accuser)’s statements concerning the night’s events have changed over time, but one point on which she has remained steadfast is that once in your room that you had sexual intercourse with her and that she did not consent to or actively participate in the sexual intercourse. (accuser) stated that she told you no and/or to stop and that Mr. Darby, who she identified by his dreadlocks, came into the room and told to you stop as well. She stated that you subsequently carried her into your bathroom, locked the door, and proceeded to continue sexual intercourse against her will. (Accuser) stated that she continued to plea for you to stop when in the bathroom and that she tried to resist you at this point but that you pinned her down.
You, however, vehemently contradict (accuser)’s recitation of the night’s events. You testified that once in your room that you and (accuser) engaged in foreplay and that you asked for, and (accuser) willingly performed, oral sex on you. You further testified that you retrieved a condom, that (accuser) assisted you in putting on the condom, and that (accuser) was an active participant in the sexual intercourse that followed. You testified that (accuser)’s physical actions and statements during the sexual intercourse demonstrated its consensual nature and that she at no time told you no, told you to stop, or objectively demonstrated any objection.
You testified that Mr. Casher came into the room and that (accuser) told Mr. Casher no and to get out and/or leave, but that these statements were never directed at you. Mr. Casher admits that it was he, and not Mr. Darby, who entered your room, and Mr. Casher was found responsible for doing so at his own student conduct hearing. The statements of Mr. Casher and Mr. Darby, although based on brief observations, are consistent with your recitation of events. While the statements of Mr. Casher and Mr. Darby differed on certain points, their main observations have remained consistent.
You testified that (accuser), following Mr. Casher having entered the room and the door being pushed open, asked if there was somewhere more private. Namely, you indicated that (accuser) wanted to continue to have sexual intercourse with you, and that was the reason you both went into the bathroom where you continued to have sexual intercourse. Although Mr. Casher made a statement as to what he thought he heard, you and (accuser) are the only persons with personal knowledge as to what actually happened in the bathroom.
The medical exam and testimony of the SANE nurse, Ms. Walker, who performed (accuser)’s exam are inconclusive. Ms. Walker reported that (accuser) had vaginal tenderness and redness that could be consistent with either a sexual assault or consensual sexual intercourse. Likewise, the reported bruises, to the extent received on the night in question, are not necessarily inconsistent with the particular evidence of consensual sexual activity in this case.
It is undisputed that immediately after your sexual encounter with (accuser) that you gave (accuser) a ride home on your scooter at which time she had to hug and hang on to you. Later, (accuser)’s friends indicated that shortly thereafter and the following day that (accuser) was hesitant to be touched or hugged.
As summarized in the preceding paragraphs, the evidence regarding the events that unfolded between you and (accuser) once in your room is irreconcilable. In light of all of the circumstances, I do not find the credibility of one story substantially stronger than that of the other. Both have their own strengths and weaknesses. I cannot find with any confidence that the events as set forth by you, (accuser), or a particular combination thereof is more probable than not as required to find you responsible for a violation of the Code. Therein lies the determinative factor of my decision.
You and your advisor have asserted that (accuser) intentionally fabricated an elaborate lie, but I am not prepared to conclude as much. A person’s mental state, whether it be the result of trauma, stress, anxiety, or the like, can affect the person’s memory which can possibly improve with time. In fact, this is a matter addressed in the training of hearing bodies. This issue was also addressed by Ms. Walker and Ms. Chatfield, a victim’s advocate who worked with (accuser). There is evidence that (accuser) was in such a state of mind following her encounter with you although I cannot conclude by a preponderance of the evidence that this encounter was nonconsensual and the sole basis for any such trauma.
Although there is much evidence regarding the amount of alcohol consumed by (accuser), whether and by whom (accuser) was given a shot, and whether (accuser) had been drugged, lab reports show that there were no known drugs in (accuser)’s system and that her blood alcohol level was within reason. Moreover, (accuser) stated that she was not intoxicated, and the consensus among witnesses was that (accuser), while having been drinking, was never at a level that impacted her decision-making abilities.
In closing, I have thoroughly reviewed and considered everything on the record before me and assigned it the relevance and weight I feel it deserved. Further, to the extent that objections were made to the hearing procedures on the record or in the hearing briefs, these matters have been preserved.
This was a complex case, and I worked hard to make sure both parties had a full and fair opportunity to present information. In sum, the preponderance of the evidence has not shown that you are responsible for any of the charged violations of the Code. Namely, I find that the evidence before me is insufficient to satisfy the burden of proof.