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921 Walnut Street, Suite 200
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Advisor to

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Although allegations as serious as rape are commonly held to the applicable criminal
standard of proof beyond a reasonable doubt, the much lower standard of preponderance of
the evidence is used in school disciplinary matters. It is the only standard that complies with
Title IX because it does not favor one student over another and asks only, in the context of a rape
allegation, which students account is more likely. In weighing which account is more likely,
customary evidentiary principles apply, including credibility, bias, consistency and
inconsistency, adverse inferences from refusals to answer questions (see Part II.B.3),
corroboration by physical evidence and other witnesses, post-incident behavior and demeanor,
and whether the student had a motive not to tell the truth. See Gross v. Lyons, 763 So.2d 276,
280 n.1 (Fla. 2000)



Section 6 C2R 3.004(1)(e)(1)(a) of the FSU Student Conduct Code (SCC) defining
consent is vigorous, requiring far more affirmative indication of consent than the Florida sexual
assault statute.1 Under the definition, which governs these proceedings, consent must be verbal
and not by conduct or acquiescence; it must be clear, meaning by explicit verbal statements of
affirmative consent; and each form of sexual activity must be independently consented to with
clear verbal statements.
Section 1(e)(1)(a) reads, in pertinent part, as follows:
[C]onsent is defined as the willing and clear participation in the sexual act . . . 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 is not the lack of
resistance; there is no duty to fight in order to indicate lack of consent. Consent to one form
of sexual activity does not imply consent to other forms of sexual activity. Consent can be
withdrawn at any time, as long as the withdrawal is clearly communicated by the person
withdrawing consent through words or actions.
(Emphases added.)
FSU thus employs an affirmative consent standard that intentionally places a higher
burden on students engaging in sexual activity by requiring that they obtain the explicit verbal
consent of their sexual partners. Unlike other rape and criminal sexual misconduct standards,
FSUs affirmative consent standard defines rape as the absence of consent, rather than the
presence of verbal or physical indicators of non-consent, such as fighting back. Whether the
woman appears to enjoy it or came on to the man does not quality as consent. Lack of
See Fla. Stat. 794.011(a) (defining consent as intelligent, knowing, and voluntary consent that does not
include coerced submission).

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resistance does not qualify as consent. Even highly provocative but non-verbal come-ons (of
which there is no evidence in this case) fail to meet the high bar of 1(e)(1)(a). Instead, each
form of sexual activity requires separate clear verbal consent, which can be withdrawn at any
time. This requirement puts the burden squarely on Respondent Winstons shoulders to ensure
that Complainant through explicit verbal statements, was affirmatively willing to have a sexual
encounter with him. Moreover, (1)(e)(1)(a) of the FSU SCC precludes Respondent Winston
from asserting that Complainant acquiesced to their sexual encounter through a failure to resist
his advances and/or other nonverbal conduct.
The FSU SCC affirmative consent standard is on par with Californias recently-enacted
Yes Means Yes law, which requires university students to ensure that they have the affirmative
consent of a willing partner before engaging in sexual activity. See S.B. 967, 2014 Leg., Reg.
Sess. (Cal. 2014). This heightened standard has also been adopted by more than 800 college
campuses nationwide, including by the State University of New York system and the California
State University System. See State University of New York, Memorandum on Sexual Assault
Response and Prevention (Oct. 8, 2014); see also Deborah Tuerkheimer, Consent Culture and
the Forgotten Law of Rape, 14 Northwestern University Public Law and Legal Theories Series
53 (Nov. 2014) (discussing the trend on college campuses toward a heightened standard of
affirmative consent). Charged with protecting the safety and well-being of all students and with
maintaining an educational environment that is free from sexual harassment and harm, the
affirmative consent standard allows universities to root out sexual misconduct by defining sexual
misconduct as any sexual contact to which someone has not given affirmative consent. Whether
the FSU consent definition is too strict may be a matter for debate, but it remains the standard
governing this case. Accordingly, Respondent Winston violated the FCC SCC if there was
anything less than unambiguous verbal consent from Complainant.


The record evidence is set forth well in Tab 54 of the Hearing Material (HM), 311-28,
which consists of senior FSU Investigator Mirkins (a) interview of Complainant on August 6,
2014, which she confirmed under oath at the hearing, Transcript (Tr) p. 44, and (b)
Memorandum Summarizing Record Review, HM 318-28. Ms. Mirkins Memorandum does an
excellent job of summarizing Complainants allegations, the corroborating evidence, Respondent
Winstons refusals to be interviewed, evidence inconsistent with Complainants account and
inconsistencies between Respondent Winstons witnesses. Ms. Mirkin, at Tab 54, has concisely
laid out a roadmap to the record evidence. Her finding that Complainants multiple statements
unwaveringly assert that she was raped on 12/7/2012 and include largely consistent accounts of
the evidence, is entitled to special deference. HM 323.

Complainants Evidence in Brief

Complainant was taken in a taxi cab from Potbellys bar in the early morning hours of
December 7, 2012, by three men she did not know but who were later identified as Jameis
Winston, Chris Casher and Ronald Darby. Although some of the details from Potbellys are
hazy, Complainant found herself very scared in the cab not knowing where it was taking her or
what the men intended to do. On arriving at the Legacy Suites apartment complex Respondent
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Winston immediately led Complainant to his bedroom, where he removed her clothes and raped
her. Mr. Darby entered the room and told Respondent Winston dude, she is saying no.
Winston then carried the traumatized Complainant into his bathroom, put her on the floor, locked
the door and forcibly raped her again as she struggled to resist. Multiple times she implored him
to stop, saying please stop, please stop, and no, no.
Afterwards, Respondent Winston left Complainant on the street near an address she had
falsely told him was her dorm. Distraught and in tears she cried out for help via Twitter and was
assisted within minutes by friends who came to her aid. Within a few hours she was examined by
a Sexual Assault Nurse Examiner (S.A.N.E.) at the hospital and gave police interviews.
Unable to identify her unknown assailant, she did her best to describe the man to the responding
police officers. Roughly five weeks later, Complainant saw her assailant in a class they both
attended and learned that his namewhich meant nothing to herwas Jameis Winston.
Respondent Winstons DNA was later matched to semen found on Complainants underwear and
Messrs. Casher and Darby also identified Respondent Winston as the man in question.
Complainants evidence is largely undisputed, except by Respondent Winstons lawyerassisted statement about which he took no questions. Complainants description of the assault is
consistent not only in her repeated interviews on the subject but also with all of the physical
evidence and multiple witness accounts.

Complainants Account of her Rape is Essentially Undisputed by the

Record and Overwhelmingly Supports all Four Violations of the
SCC by the Preponderance of the Evidence.

a. The bedroom:
As the Memorandum Summarizing Record Review (FSU
Memorandum), explains, HM 324-26, there is no record evidence inconsistent with
Complainants accounts of what transpired in Respondent Winstons bedroom except for highly
unreliable statements made by Respondent Winstons best friends, Messrs. Casher and Darby,
HM 324-26; 406; and Respondent Winstons non-probative Exhibit 9 statement. See Part II.B.2.
Messrs. Casher and Darbys accounts of what they saw show that they only briefly observed
snapshots of Respondent Winstons conduct, and are highly questionable given the lack of
credibility granted to these statements in the FSU Memorandum, and their unwillingness to
substantiate them during the hearing. See also Part II.B.4, infra.
b. The bathroom: Even if the Hearing Officer gives any weight to Messrs. Casher and
Darbys highly suspect prior statements, these statements do not detract from the ultimate
conclusion that Respondent Winston is responsible for the sexual assault of Complainant. This is
because neither Mr. Casher nor Mr. Darby witnessed the overwhelming majority of Respondent
Winstons illicit conduct, including the second and even more violent rape of Complainant that
occurred after Respondent Winston carried her into his bathroom and locked the door. One of
the few consistencies in Messrs. Casher and Darbys statements is that once Respondent Winston
physically carried Complainant into and locked the bathroom, neither man observed any of the
subsequent interactions between Respondent Winston and Complainant.

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Notably, Respondent Winstons opening statement is essentially silent about what

happened in the bathroom, offering no details other than the conclusory statement that we began
to have consensual sex again and eventually concluded having sex. Aside from Exhibit 9s
evidentiary problems (see Part II.B.2 below), it provides no facts to suggest that the bathroom
sex was consensual.
Complainants account of what Respondent Winston did to her after removing her from
the bed and carrying her to the bathroom therefore stands alone and undisputed by any record
facts. Complainants account, corroborated by her injuries, details her unsuccessful struggle to
resist a much stronger assailant whom she begged to stop, and is entirely consistent with her
subsequent severe distress and pleas for help.
A careful review of the Hearing Materials and Transcript makes clear that the following
facts are not controverted by any evidence other than Respondent Winstons dubious opening
Complainant did not know Respondent Winston before that night.
Complainant never heard from Respondent Winston after that night.
Complainant did not know Messrs. Casher and Darby before that night.
Complainant had never been to Respondent Winstons apartment.
Either Mr. Casher or Mr. Darby or both entered the bedroom briefly. HM 321.
Complainant said please stop and no multiple times to Respondent Winston
as he raped her. HM 321. (Mr. Casher also testified that he heard Complainant
say no, no, although he interpreted the pleas as directed toward him rather than
Respondent Winston. HM 414.)
Mr. Casher or Mr. Darby then left the bedroom. Neither saw Respondent Winston
or Complainant again while inside the apartment. Mr. Darby left for his own
apartment on the fourth floor. HM 130.
Respondent Winston carried Complainant fireman style into his bathroom and
deposited her onto the floor. HM 321.
Respondent Winston locked the door and told Complainant it was locked. Id.
Respondent Winston then penetrated her a second time. She struggled to resist but
Respondent Winston pinned her down painfully by the arm and thigh to subdue
her. She implored him repeatedly, please stop, please stop, but he grabbed and
jammed her head to the side. He then covered her mouth and face with his hand,
silencing her and blocking her view of his face, and injuring the back of her head
or neck, as he continued thrusting until he was finally done. Id.
The physical evidence substantiates Complainants account of this brutal
bathroom rape. Within approximately two hours of the rape, Tallahassee Police
Officer Fallis observed that several bruises began to appear on Complainant as
she was being interviewed. Approximately two hours after that, a full S.A.N.E.
examination was conducted, including completion of a rape kit and a pelvic and
whole body physical exam. Semen, later conclusively matched to Respondent
Winston, was also identified. HM 322. Bruises corresponding to thumb and finger
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marks were recorded in the hospital chart on Complainants arm and thigh at the
places she stated that Respondent Winston had pinned her down. HM 875.
According to the hospital chart, Complainant also complained of soreness in
arms and upper thighs, had injuries on her hand and foot, and pain at the back of
her head. HM 326; 888 (emphasis added). The hospital chart reads Unknown
perp. States held down by arms and legs. Now with generalized muscle aches and
vaginal tenderness. Now with H[eadache] and nausea also. HM 874. She had
vaginal tenderness and redness on genital examination. HM 875. She was saying
no and resisting. HM 888. This evaluation was classified by the hospital as
hi[gh] severity and urgent. HM 901.
FSU Police Officer Harris, who drove Complainant to the hospital, testified at the
hearing that Complainant said she told her attacker to stop, as did another man in
dreads, Tr. p. 130, and that she was visibly upset. Tr. p. 134.
S.A.N.E. Nurse
testified at the hearing that Complainant had exterior
trauma, bruises, and generalized vaginal tenderness and redness consistent with
Complainants description of the sexual assault.2 Tr. pp. 154 56. The bruises
and muscle strain Nurse
charted were consistent with sexual assault when
a struggle was involved. Tr. p. 156.
Victim Advocate
interviewed Complainant at the hospital and
independently recalled the case. She testified that Complainant said she had been
sexually assaulted, that the assailants roommate told him to stop, that he locked
her in the bathroom and sexually assaulted her again. Tr. p. 161.
observed that Complainant was disassociated as a defense mechanism to the
attack, but actually remembered a comparatively great deal of detail. Tr. 162
64. She testified that Complainant was traumatized. Tr. p. 164. She recalled
walking away from the hospital thinking that Complainant was a remarkably
strong witness since she remembered a great deal, she immediately contacted law
enforcement, she was wanting to press charges, and she immediately got police,
family and friends involved, all of which gave
the impression that this
was real and that this had happened. Tr. p. 165.
The hospital examination and the statements and testimony of witnesses at the hospital
thus correspond in every possible way with Complainants having resisted a violent rape while
pinned to the bathroom floor by her arms and legs. The Hearing Officer need look no further
than the consistencies between Complainants testimony and the record and physical evidence to
find Respondent Winston responsible for sexual assault by the preponderance of the evidence.

Complainants Behavior After Leaving the Apartment is Wholly

Inconsistent With Consensual Sex and Consistent Only With Having
Been Raped.

On cross-examination
agreed that mild vaginal redness and tenderness can be produced by
consensual sex, but Respondent Winston conspicuously did not ask about the physical findings of exterior trauma,
bruising and muscle strain. Tr. p. 157.

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The following undisputed facts presented in the Hearing Materials and Testimony
describe a textbook case of rape trauma that cannot possibly be squared with consensual sex:
After the rape, Respondent Winston asked Complainant where she lived and
she gave him a false address so he would not later be able to find her. HM
As soon as Respondent Winston disappeared, after leaving Complainant on
the side of the road, she Tweeted SOMEONE PLEASE HELP. Id.
Complainant sobbed as she slowly made her way back to her dorm. Id.
Almost immediately, two alarmed friends called Complainant. She was crying
so uncontrollably that it took three times for Complainants friend, Bria
Henry, to understand that Complainant had just been raped by a stranger. Id.
When she spoke to her friend, Jenna Weisberg, Complainant was so distraught
that Jenna kept her on the phone as she drove to Complainants dorm, and
continually assured her that she was on her way to help, including identifying
every intersection she passed so Complainant knew that she was getting
closer. HM 314, Tr. p. 82.
After hearing what had happened, Jenna immediately called the FSU campus
police. FSU police promptly arrived and took Complainant to the hospital.
HM 13.
At the hospital, Complainant readily agreed to a highly invasive and painful
rape kit examination. HM, Tab 73.
In the first four hours after the rape, Complainant repeated the same account
of rape by an unknown assailant to each individual with whom she spoke.
HM 323. She told each that she did not know the identity of her rapist and
could not give a name to the police. HM 323.
Complainant texted Monique Kessler that morning, I got raped. HM 324.
When Kessler went to her, Complainant was shaking, crying, could barely
talk, and had been throwing up. Tr. p. 107. Over the following months,
Complainant isolated herself, didnt want to go out, and just kind of stayed
alone. Tr. p. 108.
When Marcus Jordan saw Complainant that morning, she was crying her
eyes out I went to go hug her and she would not let me touch her, she
wouldnt let me near her. I didnt know why and then she told me she had
been raped. Tr. pp. 119-20.
When Complainants parents arrived at the hospital they climbed into bed
with her holding her and crying, and telling her we loved her. Tr. p. 144.
Since the rape Complainant has dramatically changed, she stays around the
house, she hardly ever goes out. Tr. p. 146.
Five weeks after the rape, on the first day of classes for the spring semester,
Complainant went to her Race and Ethnicity class. Because it was the first

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week of class, the professor called roll. Complainant looked back for some
friends and was shocked to see her attacker in the classroom. She listened
until she heard his name called and wrote the name down. Shortly after class,
she called the police investigator to inform him that she could now identify
the man who raped her. His name is Jameis Winston. The name meant
nothing to her at the time. HM 322.

Complainants Post-Rape Demeanor and Reporting Add Significant

Weight to Evidence that She was Raped.

While by law Complainants testimony alone is sufficient to satisfy her burden to

establish that she was raped, see Tibbs v. State, 337 So.2d 788, 790 (Fla. 1976), her behavior
after the assault is strong corroboration that a sexual assault occurred.
Complainant immediately requested help after the assault and was emotionally
distraught. Her friends found her sobbing uncontrollably and stated that she was exhibiting
behaviors that were totally unlike her normal personality, including hysteria, fear and an inability
to communicate coherently. These types of post-assault demeanor are widely accepted as
corroboration of a victims story of rape. . See e.g., Moore v. United States, 306 A.2d 278, 281
(D.C. 1973) (holding that a victims testimony is corroborated by her emotional condition after
the assault); State v. Mosby, 450 N.W.2d 629, 635 (Minn. Ct. App. 1990) (holding that sexual
assault victims demeanor after assault corroborated her testimony);Garza v. State, 231 P.3d 884,
891 (Wyo. 2010) (holding that victims conversations with others about her assault and
demeanor after the assault corroborate the victims testimony).
Complainant also immediately acted to report the rape to police. Shortly after returning to
her dorm and speaking with Jenna Weisberg, Complainant called her parents to tell them what
happened and asked Jenna to call the police. Within several hours after the rape, Complainant
was willingly being interviewed by FSU campus police and examined by Nurse
Complainants prompt reporting of an incident of sexual assault further corroborates her
testimony of rape. See e.g., People v. McDaniel, 611 N.E.2d 265, 268 (N.Y. 1993) (evidence
that a victim of sexual assault promptly complained about the incident is admissible to
corroborate the allegation that an assault took place); State v. Butts, 439 N.W.2d 493, 496 (Neb.
1989) (victims prompt complaint of assault and scared and shameful demeanor corroborate
testimony of assault); Fitzgerald v. United States, 443 A.2d 1295, 1302 (D.C. 1982) (holding that
a victims prompt complaint to her family and the police corroborates testimony of rape).
Complainants testimony clearly establishes that her rape was not consensual, and the evidence
presented of Complainants post-race demeanor and prompt reporting further corroborate that
version of events.

Conversely, Respondent Winstons Contentions of Consensual Sex

Are Refuted by the Undisputed Corroborating Evidence.

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Respondent Winstons contentions that he had Complainants consent for his sexual
penetration that left Complainant bruised, sore, and in tears in the hospital, are clearly at odds
with this series of events and raise a myriad of inconsistencies that Respondent Winston was
unable and unwilling to resolve during the hearing.
His brief opening statement does not explain why Complainant was so traumatized and
distraught, nor why she sent such urgent pleas for help after the encounter. It does not resolve
why she willingly cooperated with police and the hospital in the weeks and months that followed
the assault, or why she was willing to endure the pain and indignity of a S.A.N.E. examination.
Respondent Winstons statement that Complainant consented to the rape is inconsistent with the
S.A.N.E. exam report, the photographs documenting bruising corresponding to his hand holds,
and vaginal trauma. HM 20-23; Tab 73. Respondent Winston also cannot, and did not, explain
why Complainant would file a report of rape that he alleges was falsified, yet fail to accuse a
perpetrator, or why she would then call police five weeks later when she learned his name only
by the pure coincidence of a shared class. Nor does his statement explain why a few details
how she got separated from Monique at Potbellys, how she wound up on the sidewalkremain
hazy, when, if she were only fabricating such detail, she could have easily made them up.
Respondent Winstons account of nonconsensual sex thus cannot be squared with Complainants
account, nor with the live testimony of every witness presented at the Hearing, the observations
of law enforcement, medical and victims witness assistant personnel, or the findings of the
forensic medical examination.



Respondent Winstons Answers to the Hearing Officers Three

Questions About Consent Show no Consent was Obtained.

At the close of the hearing, Respondent Winston declared that he was not going to
answer any questions. Tr. p. 201. The Hearing Officer nevertheless asked three questions that
went to the heart of the proceedings and, after initially hesitating, Respondent Winston attempted
to answer:


the Complainant has indicated that she continually

resisted by saying no to your sexual overtures, and you
have indicated that she gave consent. And I would like to
know in what manner, verbally or physically, that she gave
consent. And I ask that with the understanding that you
have previously given.
Both, your honor, verbally and physically.
And what did she say and what did she do?
Moaning is mostly physically. Well, moaning is physically
and verbally at that time, Your Honor . . . .
Well that was during the sexual encounter?
Yes, Your Honor.
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Justice Harding: Okay. Alright. Anything further of Respondent

[Winston]? I believe then that that concludes all of the evidence.
Tr. pp. 203 204.
These answers constitute the entirety of Respondent Winstons responses after almost
two years of questions about the incident. Even if, for the sake of argument, it is to be believed,
it falls woefully short of the clear verbal consent to each form of sexual activity required by
1 (e)(1)(a) of the SCC.
Moaning is obviously not clear verbal consent or even a clear verbal expression.
Moaning in no way communicates willing and clear participation in the sexual act, as consent
is defined by the SCC.
Respondent Winstons sworn testimony thus undercuts the vague contentions in his
opening statement about verbal expressions of consent. Moaning and verbally do not
explain what affirmative verbal consent Complainant gave to Respondent Winston, nor do they
confirm that Respondent Winston received Complainants consent for each sexual encounter.
The logical inference is that Respondent Winston, when asked exactly how Complainant
clearly communicated verbal consent, had no ability to answer. In his sole answer in two years
to how he obtained consent for his sexual encounters with Complainant, Respondent Winston
had nothing to say. Questioned under oath, he could offer no evidence of consent at all
because he never had it.
Complainants detailed evidence that she never consented, as set forth above, thus stands
completely un-rebutted by testimony from Respondent Winston. Complainant has satisfied her
burden to establish that a rape occurred by a preponderance of the evidence.

Respondent Winstons Exhibit 9 Opening Statement is of Negligible

Probative Value and Should be Given no Weight.

The Opening Statement is not Testimonial in Nature.

Respondent Winstons only account of the incident was provided in an opening

statement, which was subsequently entered into evidence as Exhibit 9. This opening statement
was prepared by Respondent Winston and his counsel only after the benefit of over a year to
review the evidence in the case, including the statements of witnesses and Complainants own
accounts of what happened that evening. Respondent Winston initially chose not to swear to the
content of the statement, but later reversed course at the end of the hearing, saying I declare
under penalty of perjury that my statement yesterday is true. Tr. p. 200. He then immediately
stated that he refused to answer any questions about it, Tr. p. 200. Shortly after the Hearing

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adjourned it was distributed to media nationally in violation of admonitions that Hearing

testimony is confidential.
Respondent Winston had the opportunity to submit supplemental hearing materials to
corroborate the opening statement but did not. Conspicuously, no telephone records were
submitted by Respondent to substantiate his assertions in the statement about obtaining
Complainants telephone number and texting Complainant to meet him outside.
Both the FSU SCC and civil precedent make it clear that opening statements normally do
not constitute evidence to be considered by the hearing officer. See FSU SCC, Sections 6C2R3.004(5)(a)(v) & (6)(b); Gatlin v. Jacobs Const. Co., 218 So.2d 188, 190 (Fla. Dist. Ct. App.
1969) ([i]t is of course elementary that opening statements do not constitute evidence.); Collins
Fruit Co. v. Giglio, 184 So.2d 447, 449 (Fla. Dist. Ct. App. 1966).
Respondent Winston attempted to circumvent this standard by later introducing his
opening statement as evidence, in lieu of testimony. At a minimum, Exhibit 9 should be treated
with skepticism, as it is of very limited evidentiary value. Although the FSU SCC permits a
hearing officer to accord equal weight to witness testimony in the form of a written statement,
this provision does not extend to the testimony of the charged student himself. See FSU SCC,
Section 6C2R-3.004(6)(b). The purpose of this rule is to allow for the full presentation of
evidence by a party even where a non-party student witness is unable, or unwilling, to participate
personally in the hearing process. Such justifications do not extend to the statement of a charged
student like Respondent Winston, whose presence is required at the hearing and who is available,
but simply unwilling, to provide live testimony, have that testimony cross-examined or further
questioned while under oath. Respondent Winstons effort to have his unexamined opening
statement taken as single-handedly establishing his version of the facts, while forcing
Complainant to refute or disprove his assertions without the benefit of cross-examination, is an
end run around the truth seeking procedures that guides these proceedings.
Precisely such circumstances have led the Florida courts, and courts across the nation, to
hold that sworn affidavits presented in lieu of live testimony cannot be used to prove contested
facts at an evidentiary hearing because they are not subject to cross-examination and because
they impermissibly shift the burden of proof to the other party. Fortune v. Fortune, 61 So.3d
441, 445 (Fla. Dist. Ct. App. 2011). They are, at best, weak evidence, to be received with
caution. Carrie Wood, 19, Admissibility as Evidence, 3 Am. Jr. 2d Affidavits (2014).
Although the hearing officer is not bound by stare decisis in this case, the principals of
determining credibility of the Respondent Winston and the weight a hearing officer gives each
piece of evidence are equally applicable here. Complainant has willingly appeared before this
administrative process and openly and repeatedly subjected herself to questioning regarding her
traumatizing story of rape. She has likewise provided extensive evidence and multiple witnesses
to testify on her behalf and has freely allowed the hearing officer to scrutinize these sources.
Conversely, Respondent Winston has employed all possible procedural maneuvers available to

{W0935731 JCC}11

him in this proceeding in order to ensure that his one written statement is not subject to any form
of examination or accountability. Under such circumstances, Respondent Winstons submitted
statement is of negligible probative value and cannot possibly rise to the preponderance of the

Even if Respondent Winstons Exhibit 9 Statement were

Regarded as Evidence, it Fails to Counter the Overwhelming
Evidence of Non-Consensual Sex.

Exhibit 9, about which Respondent Winston refused to take any questions, also contains
statements about consent that, even if true, fall far short of establishing clear verbal consent.
As Complainant testified, nothing Respondent said [in Exhibit 9] is true. His false story
conflicts with the evidence in the case. I never consented. I didnt know who he was, he never
told me his name. I never entered my number into his phone, and I never received a text from
him. Respondent raped me twice, on his bed while I lay frozen but telling him to stop. And
again when he put me on the bathroom floor and locked the door and told me that it was locked.
Then I struggled against him as hard as I could. Tr. p. 45.
Even if Exhibit 9 were true, however, it only establishes disputed issues of fact that could
not possibly overcome Complainants unwavering assert[ions] that she was raped and [her]
largely consistent accounts of the incident, HM p. 323, as Investigator Mirkin concluded.
When all of the disputed and undisputed evidence is assembled, there are three instances
of alleged sexual activity to consider: (1) the oral sex that Complainant steadfastly denies took
place (2) vaginal intercourse on Respondent Winstons bed; and (3) vaginal intercourse on the
floor of the locked bathroom.
The only place in the opening statement that recounts supposed consent to a form of
sexual activity is when Respondent Winston claims that he asked . . . if she would perform oral
sex on me. She said she would. Again, Respondent Winston does not provide any description
of what was actually said that indicated to him that she would. Apart from this one vague
assertion about oral sex there is no evidence of verbal statements unambiguously signifying
consent to either the admitted vaginal intercourse on the bed, or the admitted vaginal intercourse
on the bathroom floor. Instead, the statement contains only conclusory assertions with no factual
detail. In their entirety these assertions in Exhibit 9, all disputed by Complainant, are as follows:
The conduct and other verbal expressions left no doubt that our sex was consensual.
She did not do or say anything to Chris to express or indicate that she was being forced
to have sex with me.
We had consensual sex again in the bathroom.
She did not do or say anything to express or indicate that she was upset, which is
contradicted by every known witness in the case.

{W0935731 JCC}12

She engaged in sexual talk and took other actions that made it clear that the sex was
consensual. What talk? What other actions? What was said that made consent clear?
I did not rape Complainant.
These vague assertions should be accorded no weight on the issue of clear verbal consent.
They are not only controverted by all of the other evidence in the case, they specifically fail the
test of SCC 1(a)(1)(a), which requires unambiguous consent to each form of sexual activity.
Exhibit 9 proffers no evidence of consent for vaginal intercourse in bed, or for intercourse in the
locked bathroom, other than near bald assertions that there was consent. They are also
undermined by Respondent Winstons statement under oath that moaning and verbal were the
sum total of Complainants expressions of consent.
Respondent Winstons opening statement cannot begin to counter Complainants
consistent and corroborated accounts that the sexual activity in both the bedroom and the
bathroom was non-consensual.

Respondent Winstons Refusal to Answer Questions during the

Hearing Warrants the Adverse Inference that Respondent Winston is
Responsible for the Violations at Issue.

Not only has Respondent Winston provided no testimonial evidence (except moaning)
during the course of these proceedings, his refusals to answer questions should raise adverse
inferences in Complainants favor. On five prior occasions, he has formally refused to answer
any questions about whether he raped Complainant, including:
1) When the TPD asked him to appear for a recorded interview on January 22, 2013,
close to two weeks after Complainant identified him as her assailant;
2) When the TPD requested an interview on November 14, 2013, HM 272;
3) When he appeared before SSR Director Rachel Bukanc on January 23, 2014, to answer
questions about the rape allegations in this proceeding, HM 309-310;
4) When he was notified but failed to appear as a witness at the May 20, 2014 Casher and
Darby Code of Conduct Hearing, HM 405; and
5) When FSU asked him again to cooperate and be interviewed in the SRR Code of
Conduct Process via letter on September 5, 2014, HM 329.
Then, on December 2 and 3 at the Hearing, Respondent Winston formally refused to
answer questions regarding the rape for the sixth time by asserting his rights under the FSU SCC,
Section 6C2R-3.004(6)(d), which states, a student may choose not to answer any and all
questions posed by a hearing body. This is the FSU Code of Conduct equivalent of the Fifth
Amendment. The impact of Respondent Winstons refusal to answer questions on the weight of
the evidence is not clearly addressed in the SCC and is left to the discretion of the hearing

{W0935731 JCC}13

The well-settled rule of the United States Supreme Court and multiple other jurisdictions
is that, unlike criminal proceedings, in non-criminal proceedings refusals to answer questions
count as evidence from which inferences of culpability may be drawn. Baxter v. Palmigiano, 425
U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976). See also United States v. A Single Family
Residence and Real Prop., 945 F. Supp.2d 1331, 1339 (M.D. Fla. 2013); Vasquez v. State, 777
So.2d 1200, 1203 (Fla. Dist. Ct. App. 2001); Olin Corp. v. Castells, 180 Conn. 49, 428 A.2d 319
(1980); Eldridge v. Herman, 291 N.W.2d 319 (Iowa 1980); Labor Relations Commission v. Fall
River Educators Ass'n, 382 Mass. 465, 416 N.E.2d 1340 (1981); Bull v. Bull, 634 S.W.2d 228
(Mo. App. 1982); Parker v. Hennepin County District Court, 285 N.W.2d 81 (Minn. 1979); Tice
v. Mandel, 76 N.W.2d 124 (1956).
There is every reason to apply the rule permitting adverse inferences from refusals to
answer questions in this non-criminal Code of Conduct proceeding. Accordingly, the adverse
inference in this case is that the Respondent Winstons refusals to answer questions are evidence
of his culpability. Alternatively, the refusals to answer are reasons to accord his minimal
evidence very little, if any, weight.

The Highly Inconsistent Statements of Respondent Winstons Best

Friends Are Not Only of Very Limited Evidentiary Value but Wholly
Lack Credibility.

Messrs. Casher and Darby are anything but neutral witnesses in this case and their
accounts lack credibility for several different reasons.

The past and current relationship between Messrs. Casher and

Darby and Respondent Winston is grounds for giving their
statements little, if any weight.

In November 2013, nearly one year after the rape, Respondent Winstons criminal
defense lawyer, Attorney Timothy Jansen, presented affidavits by Messrs. Casher and Darby that
were written and signed in Mr. Jansens office and track each other almost verbatim. Mr. Casher,
Mr. Darby, and Respondent Winston are also best friends, HM 406. Respondent Winston and
Mr. Casher have been accomplices in several instances when they ran afoul of the law or
otherwise engaged in troubling behavior.
Respondent Winston, Mr. Casher, and Mr. Darby acted in concert the night of December
7, 2012, and Mr. Casher even tried to participate in the rape of Complainant, which was
apparently common practice for Mr. Casher and Respondent Winston. HM Tab 113.
Additionally, Mr. Casher and Respondent Winston had previously been confronted by police at
gunpoint after being reported for menacing individuals with a pistol (which turned out to be an
air pistol) and later were detained and investigated for causing over $4000 worth of damage to
windows in their apartment complex. See Supplemental Exhibits 1 and 2. Disturbingly, Mr.
Casher and Respondent Winston also jointly filmed a pro-rape song during the course of these
proceedings. See Part II.C.1, infra, and Supplemental Exhibit 3.

{W0935731 JCC}14

Especially concerning for Mr. Cashers biases and motives is his highly suspicious
personal involvement in misconduct regarding Complainant. He has admitted the following:
He videotaped Respondent Winstons and Complainants sexual activities without
their consent, for which he has been sanctioned under the SCC. HM 325.
He destroyed the film of the sex some time thereafter, which is some evidence by
adverse inference that it depicted rape. Id.
His reason for joining Respondent Winston in the bedroom was to have sex
himself with Complainant, HM 113, p. 9.
Of Complainant, he was thinking, we can kind of like run em that is kind of
how we [Casher and Winston] do it. Id.
Run em is a common slang expression for run a train, a synonym for gang
rape. See e.g., http://onlineslangdictionary.com/meaning-definition-of/run-train.
for me and Jameis [,] is kind of a football player thing, Mr. Casher told police.
HM 114, p. 16.
The biases of Respondent Winston, Mr. Casher, and Mr. Darby as best friends, team
mates, and partners in criminal conduct should be taken into account in these proceedings.
Though by their own accounts they witnessed only brief snapshots of what Respondent Winston
did to Complainant, they have extremely powerful incentives, as Respondent Winstons
accomplices to describe what little they saw as consensual.

Both Mr. Casher and Mr. Darby admit that they observed very
little of the interaction between Respondent Winston and

In addition to apparent bias, both Messrs. Casher and Darby have acknowledged that they
only briefly observed what Respondent Winston was doing to Complainant in the bedroom, and
saw nothing of what happened in the bathroom. HM 416, 429. Mr. Casher testified he was only
in the room once and Mr. Darby merely glanced once at the cracked open door on the way to the
kitchen. HM 416; 438. Mr. Darbys statement reads What little I witnessed appeared to be
entirely consensual, HM 429 (emphasis added), but it was nothing more than a glance before he
headed up three flights and talked to the security guard.

The many problems with Messrs. Casher and Darbys

inconsistent statements.

Messrs. Casher and Darby each gave four different statements about the events of
December 7, 2012. Initially, Respondent Winstons lawyer carefully crafted a pair of nearly
identical affidavits for them to sign. However, when they told their story to Tallahassee Police
Department (TPD), and were pressed to elaborate on details, they started to veer from the
script, and inconsistencies appeared. Their stories further unraveled when they again recounted
the events of that night to their own Code of Conduct Hearing Board, in both their written
statements and sworn oral testimony. Representative inconsistencies are the following:

{W0935731 JCC}15

Messrs. Casher and Darby gave strikingly different accounts of Respondent Winstons
and Complainants positions during the supposed oral sex that Mr. Darby told police he
and Mr. Casher observed simultaneously. HM Tab 23, pp. 8:25 9:02. Mr. Casher
described Respondent Winston facing the door, with Complainant on her knees on the
floor in front of him. By contrast, based on Mr. Darbys gestures, (HM Tab 25 pp. 8:209:20, see video), Complainant was sitting on the bed, and she and Winston had their sides
facing the door, a dramatically and irreconcilably different view from what Mr. Casher
described. Their oral sex claims are also inconsistent with the negative lab tests of buccal
swabs of the insides of Complainants cheeks. HM 83-84. The reason for this stark
inconsistency is simpleMessrs. Casher and Darby never actually saw Complainant
performing oral sex.
Messrs. Casher and Darby gave polar opposite accounts of Respondent Winstons and
Complainants positions during intercourse. Mr. Casher told TPD that he observed
Respondent Winston on top of Complainant, 5:12 of Tab 23 video interview. Mr. Darby
told TPD that Complainant was either on top of Respondent Winston, or kneeling on the
bed on her hands and knees as Respondent Winston penetrated her from behind.
Mr. Darbys versions of the intercourse he claims he observed -- on top and from behind
are internally irreconcilable with each other. These were not sequential positions as Mr.
Darby only saw their sexual positions once. HM Tab 25, pp. 9:4 13.
Mr. Darby in his SCC statement said he only glanced in the bedroom once briefly on his
way to the kitchen. HM 358, 3. Yet he said he observed a) both oral sex with
Respondent Winston standing on the floor, b) vaginal intercourse with Winston on his
back in bed, and c) penetration from behind with Winston on his knees on the bed behind
Complainant all in one brief glance.
Mr. Darby showed signs of remorse consistent with Complainants account of his trying
to get Respondent Winston to stop raping her: He quickly left the first floor apartment
and located the security guard on the fourth floor. Tab 25, pp. 130-31. He spoke with the
guard 15-20 minutes but was not asked by police whether he reported Respondent
Winstons actions. Id. The next day, December 8, he posted on his Facebook page, I
feel almost the worse I ever felt. Smh [shaking my head] #stupid. Supplemental
Material Exhibit 4.
Messrs. Casher and Darbys accounts of the sequence of events at the apartment do not
match up. Mr. Darby told TPD that Mr. Casher went to Respondent Winstons door first
and then told Mr. Darby to come here. But Mr. Darby told the SRR Hearing Board that
after two minutes, HM 155, p. 8, he was the first one to approach the door, on his way to
the kitchen. Mr. Casher says they both went to the door together after 10 minutes and
pushed it open. HM 111.
Mr. Darby initially described his involvement as very limitedhe only once briefly
glanced in Respondent Winstons room as he passed it and did not attempt to pass by or
look in the room again. HM 358, 3. Darby later told TPD that he got up twice to look
into Respondent Winstons room. HM 326.
The stories also differ on what happened after Complainant supposedly told Mr. Casher
to get out of Respondent Winstons room. At the Code of Conduct hearing, Mr. Casher
{W0935731 JCC}16

said Complainant did not ask him to leave. HM 460-461. Messrs. Casher and Darbys
affidavits simply state that they continued to hear Respondent Winston and Complainant
having intercourse, and that, after 20 minutes, Mr. Casher went to his room and Mr.
Darby left the apartment. But Mr. Darby told the Hearing Board that he left the
apartment within 4-5 minutes. Mr. Cashers account to TPD was much different, and
includes that Mr. Casher and Mr. Darby continued to watch through the door until
Complainant and Respondent Winston went into the bathroom.
In addition to these extensive contradictions, Messrs. Casher and Darby have also
exhibited an inability to recall important details. Mr. Casher had no recollection of when or how
long he observed Respondent Winston and Complainant, HM 410, or where he was standing,
HM 411, or whether he said anything about the sex, HM 418. Mr. Casher testified at the May
hearing that Mr. Darby said nothing to him about stepping into the room to video the sex. HM
417-18. But Mr. Darby told police that when Mr. Casher said come here, and stepped into the
room, Mr. Darby said you crazy and sat back down. HM 130.
Finally, when the truth of their accounts would have been put to the test in the form of
sworn testimony they have refused to answer questions.
At his own hearing, Mr. Casher refused to answer what his mindset was that evening and
whether his intention was to join in the sexual activity, and refused to give a general account of
the evening. HM 409-11. In this proceeding, he refused to answer any questions at all regarding
the inconsistencies in his statements, his involvement in the rape of Complainant, and what he
observed on the early morning hours on December 7, 2012.
Mr. Darby, at his May 20 SCC hearing, refused to answer whether he glanced into the
bedroom while walking into the kitchen, HM 438, how many seconds he was watching, id., the
positions of Complainant and Respondent Winston in the bedroom, HM 438, and, why his sworn
testimony was different from his interview with police. HM 440. In this Hearing, he refused to
answer any questions at all.
In addition to the adverse inferences raised by Respondent Winstons failure to testify in
this hearing, adverse inferences against Respondent Winston also arise from Messrs. Casher and
Darbys failure to testify. The Eleventh Circuit has recently held that a court may deem such
inferences trustworthy after considering (1) the nature of the relevant relationships; (2) the
degree of control of the party over the nonparty witnesses; (3) the compatibility of the interests
of the party and non-party witnesses in the outcome of litigation; and (4) the role of the nonparty witness. See Coquina Invs. v. TD Bank, 76 F.3d 1300, 1311 (11th Cir. 2014). Here, it is
undisputed that Messrs. Casher and Darby had a close relationship with Respondent Winston and
that they have a vested interest in the outcome of these proceedings given their involvement in
the alleged rape and Respondent Winstons prominent role as their football teammate.
Additionally, Messrs. Casher and Darby have a significant role in these proceedings as they are
the only non-parties to view the alleged rape. Thus, in sum, not only are Messrs. Casher and
Darbys varying accounts highly biased, contradictory, and limited in probative value, but their

{W0935731 JCC}17

failure to testify in this proceeding raises an adverse inference of culpability by their friend
Respondent Winston.

In the Few Places Where Messrs. Casher and Darby Agree

They Contradict Respondent Winston.

Respondent Winstons opening statement states that he, Mr. Casher and Mr. Darby alone
went from Potbellys bar to the sidewalk outside. Messrs. Casher and Darby said the
three of them plus Complainant went from the bar to the sidewalk outside. HM 111, p.3;
155, p.6.
Respondent Winstons opening statement states that in the taxi cab everyone was
cheerful and talking. Mr. Casher stated that no one talked in the cab. HM 113, p. 12.
Mr. Darby stated that he never talked to Complainant in the cab or elsewhere. HM 158,



Complainant has previously submitted evidence of a song prepared and recorded by

Respondent Winston and Mr. Casher as an exhibit for the record for this hearing. Under rules of
evidence much stricter than those that govern this hearing, it is admissible under both Federal or
Florida Rule of Evidence 404(b) as proof of motive, plan, intent, and absence of mistake or
accident, and also under Rule 404(a)(1) to rebut Respondent Winstons assertion in Exhibit 9
that he condemns rape as rape is a vicious crime.
On January 23, 2014, Respondent Winston appeared before Dr. Bukanc and Dean of
Students Ward-Roof to answer questions in the investigation of Complainants sexual assault. He
refused to respond to any questions and left. Shortly after this meeting, in February 2014,
Respondent Winston received a copy of FSUs Student Conduct Code from the university, which
explicitly set forth the schools affirmative consent standard. Two weeks later, despite FSUs
clear policy that sexual assault includes any sexual encounter where one individual has not given
unambiguous consent, Respondent Winston and Mr. Casher posted the video submitted as
Supplemental Exhibit 3. It is a film of the two of them dancing and singing the following lyrics
to the song On the Floor:
She said she wants to take it slow.
Im not that type of guy Ill let cha know.
When I see that red light (all I know is go).3

In the context of the rest of the lyrics of On the Floor it is clear that these references are to sexual
intercourse: me on top of your hot body while were sweating a lot/too bad shes not into that stuff a lot .
. .
{W0935731 JCC}18

In other words, while under an investigation for rape that has garnered much national
media attention, Respondent Winston and Mr. Casher publicly posted a video declaring that
Respondent Winston is the kind of guy who ignores women who tell him to stop in sexual
situations a video that, in effect, celebrates rape and mirrors Complainants description of


A September 23, 2014 letter from Respondent Winstons counsel David Cornwell is
included as Tab 56, in the Hearing Materials. It contains a number of untrue and irrelevant
factual assertions that should be either stricken or disregarded:
1. Evidence of prior sexual contact is not relevant.
Complainant was an 18 year-old, first semester freshman when she was raped. Jamal
Roberts was her high school boyfriend and is still her boyfriend today. While his DNA matched
a stain on Complainants pants, he was at college in Ohio on December 6-7, 2012 and the DNA
was from a prior sexual encounter. HM 327.
Although attempting to label a victim as promiscuous is a typical defense tactic, it would
not apply here. As witness Marcus Jordan stated, Complainant was probably the last person
who would go home with anyone and it would be way out of character to let some random guy
take her home. HM 324.
Regardless of the explanation above, under the FSU SCC, prior sexual history is
expressly inadmissible and irrelevant to any determinations. FSU SCC, HM 721-746.
2. Assertions that complainant lied or changed her story that she was hit on
the head should be disregarded
It is undisputed that Complainant had significant head pain in the hours following the
assault, which Complainant believes was caused by Respondent Winstons pushing her head
against the bathroom floor. HM 314; 874 (hospital records). Witness Jenna Weisberg told the
FSU police operator that Complainant thinks she was hit on the back of the head but explained
at the hearing that all Complainant said was that the back of her head hurt. Tr. pp. 83-84.
Likewise, Bria Henry, the first friend to respond to Complainants tweet for help, found
Complainant hard to follow due to her sobbing but interpreted her statement that her head hurt to
mean that she was hit on the head. HM 326. This issue is a red herring. There is no question
that Complainant consistently described suffering from head pain as a result of the assault.
3. The false account of confidential settlement discussions should be stricken
or disregarded.

{W0935731 JCC}19

In his Exhibit 9 opening statement, Respondent Winstons asserts that Complainant

demanded seven million dollars. This assertion is an attempt to prejudice Complainant in the
eyes of the Hearing Officer and it is false. Confidential discussions regarding settlement did
occur between Respondent Winston and Complainants former attorney, but they began almost a
year after Complainant first reported her rape to police when Complainants allegations were
already public knowledge. 4
4. Respondent Winstons attorneys assertion that Three Independent
Investigations Have Rejected Complainants Story is wholly inaccurate
and should be disregarded.
The three investigations to which Mr. Cornwell refers, HM 332, are those of the TPD and
the State Attorney, plus the Casher and Darby Code of Conduct proceedings that resulted in a
finding against Mr. Casher.
The Code of Conduct proceedings against Messrs. Casher and Darby had nothing to do
with exonerating Respondent Winston or addressing his culpability. The suggestion that the
criminal investigation and review of filing of charges was a rejection of Complainants report of
rape is false. In fact, when the Tallahassee States Attorneys Office was asked about their
impressions of Respondent Winstons conduct, Chief Deputy States Attorney Georgia
Cappleman stated:
A.S.A. Capplemans investigator, Hearing witness Newlin, likewise confirmed that poor
police work by the TPD hampered the S.A.Os being able to bring charges. As for Chief Deputy
Cappleman, her opinions were made clear by Newlin who acknowledged her statement in the
"I believe that Mr. Winston cannot be convicted [beyond a reasonable doubt]. I don't
necessarily believe that he's innocent." See Tr. p. 198; Exhibit 6.

5. Respondent Winstons accusations that Complainant waited two years to

make a Title IX claim are both false and have nothing to do with the
events in question.
As Complainant explained during the hearing, she fully cooperated with the police the
day of her assault and in the weeks after. It wasnt until November of 2013, when the media
frenzy rocked the FSU campus and forced her to withdraw, that she first learned that the criminal
investigation had been closed and then subsequently and quickly reopened by the States

Although Respondent Winstons lawyers have suggested that perhaps Complainant is motivated by
money from future football playing contracts, it is important to note that at the time of reporting her rape
and later identifying her assailant, Respondent Winston was still ten months away from his first game of
college football and was relatively unknown.
{W0935731 JCC}20

Attorneys Office. The correspondence of February 21, March 25, and April 11 of this year
demonstrates that the allegations that Complainant was uncooperative until August of 2014 have
been invented out of whole cloth. (HM 704-706, 712-713 and 753-754). The only individual
who has refused to cooperate in these proceedings has been Respondent Winston, and in this he
has been consistent. Lastly, the discussion of this issue serves little more purpose than to distract
from events of December 7, 2012 and should be of no matter to the determination of these
The hearing materials submitted are well summed up by Title IX investigator Sarah
Mirkin. There can be no dispute that shortly after leaving the apartment of an unknown male
student, a female college freshman was left sobbing and pleading for her friends to help her. She
was examined by an expert S.A.N.E. nurse who documented her demeanor, bruising, and vaginal
trauma. She described being raped immediately after her interaction and has not wavered since.
Despite protestations by Respondent Winstons supporters, there is only one explanation
as to why Complainant was sobbing, bruised, and suffering from vaginal tearing, why she
immediately told her friends, parents, medical personnel, police, the States Attorneys office,
and her school that she was raped, why she subjected herself to a painful pelvic examination,
stayed in contact with the schools confidential victim advocate, and subjected herself to two
years of oppressive media scrutiny and social media death threats without wavering in her
account, why Messrs. Casher and Darby refuse to testify, and one explanation as to why
Respondent Winston has repeatedly refused to be interviewed by anyone and examined under
Accordingly, Complainant asks Justice Harding to make that one finding consistent with
this evidence and hold Mr. Winston accountable for these very serious violations of FSUs
Student Conduct Code.

Submitted this 12th day of December.

Baine P. Kerr

{W0935731 JCC}21