VMI denies responsibility for alleged sexual assault

The civil case, Jane Doe v. Board of Visitors, No. 6:23CV00052, wherein a prospective female cadet alleges she was sexually assaulted by her designated cadet escort while she slept in the escort's room on night of September 17, 2021 is moving forward through the Courts. The incident allegedly occurred when the prospective cadet participated in an open house event on Post she attended with her family. On September 14, 2023, the prospective cadet filed a federal lawsuit against the Virginia Military Institute (VMI) Board of Visitors (BOV) in the United States Federal District Court, Western District of Virginia, Lynchburg Division. The Court approved the request for the Plaintiff in the case to proceed under the pseudo name "Jane Doe" because she was a minor at the time of all incidents alleged in her Complaint and she was the victim of a sexual assault on a state-run campus in Virginia. The BOV responded to the complaint in Court documents filed Feb. 9, 2024. In their response, the BOV denied all allegations of any wrong-doing and that the plaintiff is entitled to any relief from the Court and attests that VMI's barracks "barracks have been, and continue to be, a safe environment" and specifically "denies that Plaintiff was sexually assaulted and battered, regardless of those terms' definitions." The BOV also denied the Plaintiff made a formal complaint under Title IX. The "Affirmative and Other Defenses" the BOV filed with the Court in the document are directed primarily against the plaintiff herself. The BOV alleges the claims are barred as the Plaintiff "…did not suffer any injury by any act and/or omission from VMI in responding to Plaintiff's report and did not suffer any injuries to which she could recover under Title IX." They also claim she "did not suffer any injury by any act and/or omission from VMI in the establishment, maintenance, and enforcement of rules, policies, and practices addressing sex discrimination and sexual harassment on campus." Notable in the BOV's response is the defense that the "VMI is not liable to Plaintiff for any intervening criminal act that caused Plaintiff any damages." According to WexLaw, the two types of intervening causes are defined as dependent and independent. A dependent intervening cause results from the defendant's behavior and the defendant's liability remains unless that behavior is "extraordinary". However, a defendant has no liability or fault if the intervening cause is independent, that is, "the event was foreseeable". The BOV also claims, "Plaintiff's claims are barred by unclean hands". According to Cornell Law School's Legal Information Institute, citing the case in Kendall-Jackson Winery v. Superior Court, 76 Cal.App.4th 970 (Cal. Ct. App. 1999), "the party asserting the unclean hands defense must prove that the misconduct relates directly to the subject matter concerning which a particular claim is made. In other words, there must be a direct relationship between the misconduct and the claimed injuries." According to the Kendall-Jackson opinion, "The doctrine of unclean hands does not deny relief to a plaintiff guilty of any past misconduct; only misconduct directly related to the matter in which he seeks relief triggers the defense." This indicates a possible BOV strategy to challenge the credibility of the Plaintiff herself by alleging her own misconduct or other actions caused or contributed to the alleged sexual assault. Although a court date for the trial before a jury is not yet scheduled, the Feb. 12, 2024 pre-trial order requires the parties to contact the Court to schedule the trial by Feb 26, 2024. Initial disclosures are due 30 days from the order with Initial expert disclosure 90 days from the order. Dispositive motions are due 75 days before trial and any required hearings on those motions 45 days before the trial date one set. The high profile private law firm Woods Rogers PLC is representing the BOV in the case. The BOV's attorneys have strong diversity and equity backgrounds. According to her online profile on the firm's website, lead attorney Leah Michele Stiegler, "has traveled the Mid-Atlantic region speaking about diversity and implicit bias." Attorney Victor O'Neil Cardwell "practices labor and employment law throughout the U.S., focusing on diversity, the Fair Labor Standards Act, and labor/management relations—including union-organizing campaigns and union-avoidance techniques—and workplace violence." The third attorney on the listed team is Olivia Sinclair Moulds. The composition of VMI's legal team in the case differs from the norm as VMI's designated Virginia Assistant Attorney General Mr. Patrick O'Leary and, as needed, additional representatives from the Office of the Attorney General traditionally represent VMI and the BOV in litigation. Mr. O'Leary and representatives from the Virginia Attorney General are representing VMI and the BOV in defending the lawsuit filed by former VMI Deputy Commandant, COL Todd Pegg for discrimination scheduled for jury trial in June 2024. VMI and the BOV were also recently sanctioned by the presiding judge for making inaccurate and false representations to the Rockbridge County Circuit Court in the civil cased filed against VMI and the BOV by Center for Applied Innovation, LLC for alleged violation of procurement rules in VMI's award of a Diversity, Equity, and Inclusion training contract.