HEARING OFFICER DECISION
This matter came on to be beard upon a complaint filed by the University of Florida,
Division of Student Affairs, Dean of Students Office, in which Mr. Antonio Callaway was charged with violation of the Student Conduct Code as follows:
Student Conduct Code: 4Al - Conduct causing physical injury or endangering another's health or safety, which includes, but is not limited to, acts of physical violence, assault, a relationship or domestic violence.
Student Conduct Code: 4B l - Sexual Assault. Any sexual act or to attempt to engage in any sexual act with another person without the consent of the other person or in circumstances which give in which the person is unable, to do age, disability, or alcohol/chemical or other impairment, to give consent.
Student Conduct Code: 4B2 - Sexual Misconduct "Any intentional intimate touching of another without consent of the other person or in circumstances in which the person is unable, do to age, disability, or alcohol/chemical or other impairment, to give consent.
This matter was heard at the University of Florida, on Friday, August 5, 2016. Present at that time were Antonio Callaway, his advisor, Amy Osteryoung, and his support person, Huntley Johnson. Also present, on the behalf of the University of Florida, were Amy Hass and Brande Smith. Neither the complainant, her advisor nor any of her witnesses appeared at this hearing.
Immediately prior to the hearing I was provided a letter which was made part of the record from Mr. Clune, asking me to recuse myself. I denied the request. While he did not impugn my integrity he was concerned with bias. I recounted my experience training, education and life involvements and indicated that I did not believe that I would be biased in any way in favor of or against any of the parties. I have prosecuted rape cases, I have sat in judgment of lawyers. My family has dealt with rape issues. Note that this was a Student Conduct Hearing which is often held by a member of the university community. The issue is an alleged conduct violation by Mr. Callaway.
Mr. Callaway offered two (2) affidavits which I declined to accept other than as a proffer because they were not provided more than seven (7) days prior to the hearing.
Additionally I declined to accept , other than as a proffer, a notebook of e-mail's and text messages that went back and forth between various members of the university community and the advisors to [REDACTED] and Mr. Callaway. I did not accept the character witness statements offered by [REDACTED] as not relevant at this point in the proceedings. I further found the photographs embedded within the text messages not relevant.
I found that text messages which were not sent/received on the night in question were not relevant. I find, any prior sexual acts or sexual acts subsequent to the incident by were not relevant. Prior to the hearing I had reviewed the record which included the pre -investigation, the Title 9 Investigative Report and various interviews, text message conversations and additional documents submitted by the parties and affidavits. I also reviewed the questions prepared by Mr. Callaway. [REDACTED] had not submitted any questions to be asked of the witnesses at the hearing. Specifically as to the evidence I excluded the affidavits of Mr. as being
inconsistent. I accepted the affidavits (or parts thereof) that were sent/received the night of the incident. I excluded all others as not relevant. I accepted the initial complaint to the University dated January 27, 2016. The investigative report is included in the materials. I do find the parties engaged in sexual intercourse. At issue is consent and injuries. I read 4(a)(l) of the student conduct code to require physical injury or endangering another's health or safety. Implicit in that is consent as set forth in 4(b)(l) & (2). Thus the question is whether [REDACTED] was "unable due to age, disability or alcohol/chemical or other impairment to give consent." There was no issue of being unable to consent due to age or disability.
I noted the statements by [REDACTED] in the investigation report wherein she stated did not consent because of intoxication and/or force, However the totality of the evidence suggest the contrary and she was not intoxicated to the extent she could not consent. The affidavits all indicated that [REDACTED] did not appear intoxicated. Further her own text messages indicated that she was pretending to be intoxicated.
The ER Reports do not suggest injuries nor do any of her statements. [REDACTED] was at Mr. Callaway 's residence voluntarily and not at the request of Mr. Callaway. Others were present the whole time she was at Mr. Callaway’s. She was not detained at any point nor did she ask for help from any of the persons present including another woman. I further find that the time line as indicated by the various text message date stamps do not support her contention s of force or an inability to consent, They are inconsistent, initially reported being forced to have sex and then some time later indicated that she thought she was going to be forced to have sex. Another time she stated that she wasn't sure if she had been. The only live witness was Mr. Callaway.
As a fact finder it is my impression that Mr. Callaway was honest, sincere, and presented himself well. He testified the sexual encounter was consensual, at least on the part of [REDACTED]. Both Mr. Callaway and [REDACTED] admitted he was high on marijuana. She stated, he was "faded as [EXPLETIVE]". He stated, I was so stoned I had no interest in having sex with anyone". He stated she was the aggressor. The burden of proof in a Student Conduct Hearing is the preponderance of the evidence or "more likely than not".
The counter complaint was not heard as an investigation has not been completed by the University at this time. For all of the foregoing reasons and from the totality of the evidence I find that the burden of proof was not met and I find Mr. Callaway not responsible.
--John J. Schickel
Hearing Officer
This matter came on to be beard upon a complaint filed by the University of Florida,
Division of Student Affairs, Dean of Students Office, in which Mr. Antonio Callaway was charged with violation of the Student Conduct Code as follows:
Student Conduct Code: 4Al - Conduct causing physical injury or endangering another's health or safety, which includes, but is not limited to, acts of physical violence, assault, a relationship or domestic violence.
Student Conduct Code: 4B l - Sexual Assault. Any sexual act or to attempt to engage in any sexual act with another person without the consent of the other person or in circumstances which give in which the person is unable, to do age, disability, or alcohol/chemical or other impairment, to give consent.
Student Conduct Code: 4B2 - Sexual Misconduct "Any intentional intimate touching of another without consent of the other person or in circumstances in which the person is unable, do to age, disability, or alcohol/chemical or other impairment, to give consent.
This matter was heard at the University of Florida, on Friday, August 5, 2016. Present at that time were Antonio Callaway, his advisor, Amy Osteryoung, and his support person, Huntley Johnson. Also present, on the behalf of the University of Florida, were Amy Hass and Brande Smith. Neither the complainant, her advisor nor any of her witnesses appeared at this hearing.
Immediately prior to the hearing I was provided a letter which was made part of the record from Mr. Clune, asking me to recuse myself. I denied the request. While he did not impugn my integrity he was concerned with bias. I recounted my experience training, education and life involvements and indicated that I did not believe that I would be biased in any way in favor of or against any of the parties. I have prosecuted rape cases, I have sat in judgment of lawyers. My family has dealt with rape issues. Note that this was a Student Conduct Hearing which is often held by a member of the university community. The issue is an alleged conduct violation by Mr. Callaway.
Mr. Callaway offered two (2) affidavits which I declined to accept other than as a proffer because they were not provided more than seven (7) days prior to the hearing.
Additionally I declined to accept , other than as a proffer, a notebook of e-mail's and text messages that went back and forth between various members of the university community and the advisors to [REDACTED] and Mr. Callaway. I did not accept the character witness statements offered by [REDACTED] as not relevant at this point in the proceedings. I further found the photographs embedded within the text messages not relevant.
I found that text messages which were not sent/received on the night in question were not relevant. I find, any prior sexual acts or sexual acts subsequent to the incident by were not relevant. Prior to the hearing I had reviewed the record which included the pre -investigation, the Title 9 Investigative Report and various interviews, text message conversations and additional documents submitted by the parties and affidavits. I also reviewed the questions prepared by Mr. Callaway. [REDACTED] had not submitted any questions to be asked of the witnesses at the hearing. Specifically as to the evidence I excluded the affidavits of Mr. as being
inconsistent. I accepted the affidavits (or parts thereof) that were sent/received the night of the incident. I excluded all others as not relevant. I accepted the initial complaint to the University dated January 27, 2016. The investigative report is included in the materials. I do find the parties engaged in sexual intercourse. At issue is consent and injuries. I read 4(a)(l) of the student conduct code to require physical injury or endangering another's health or safety. Implicit in that is consent as set forth in 4(b)(l) & (2). Thus the question is whether [REDACTED] was "unable due to age, disability or alcohol/chemical or other impairment to give consent." There was no issue of being unable to consent due to age or disability.
I noted the statements by [REDACTED] in the investigation report wherein she stated did not consent because of intoxication and/or force, However the totality of the evidence suggest the contrary and she was not intoxicated to the extent she could not consent. The affidavits all indicated that [REDACTED] did not appear intoxicated. Further her own text messages indicated that she was pretending to be intoxicated.
The ER Reports do not suggest injuries nor do any of her statements. [REDACTED] was at Mr. Callaway 's residence voluntarily and not at the request of Mr. Callaway. Others were present the whole time she was at Mr. Callaway’s. She was not detained at any point nor did she ask for help from any of the persons present including another woman. I further find that the time line as indicated by the various text message date stamps do not support her contention s of force or an inability to consent, They are inconsistent, initially reported being forced to have sex and then some time later indicated that she thought she was going to be forced to have sex. Another time she stated that she wasn't sure if she had been. The only live witness was Mr. Callaway.
As a fact finder it is my impression that Mr. Callaway was honest, sincere, and presented himself well. He testified the sexual encounter was consensual, at least on the part of [REDACTED]. Both Mr. Callaway and [REDACTED] admitted he was high on marijuana. She stated, he was "faded as [EXPLETIVE]". He stated, I was so stoned I had no interest in having sex with anyone". He stated she was the aggressor. The burden of proof in a Student Conduct Hearing is the preponderance of the evidence or "more likely than not".
The counter complaint was not heard as an investigation has not been completed by the University at this time. For all of the foregoing reasons and from the totality of the evidence I find that the burden of proof was not met and I find Mr. Callaway not responsible.
--John J. Schickel
Hearing Officer
