by Sam Colt
Judge Otho Eyster, who is presiding over former student Stephen Zingarelli’s civil suit against the College and another former student, Ellen Kaufman ’13, has denied a motion to dismiss two counts of Zingarelli’s suit that relate to Kenyon’s alleged criminal negligence.
Zingarelli filed his suit in December 2013. His attorneys allege that, although he was acquitted of sexual assault, Zingarelli was subjected to defamation, emotional distress and negligence by the College, Kaufman and his accuser.
The order handed down on Wednesday suggests that Kaufman — who is also represented by the College’s lawyers at Columbus-based law firm Bricker & Eckler LLP — may bear some responsibility for her actions as a Sexual Misconduct Adviser (SMA) while at Kenyon. She declined to comment for this article.
According to the lawsuit, Zingarelli’s attorneys allege that Kaufman encouraged another former student to bring sexual assault charges against Zingarelli “when she knew or should have known those allegations were false.”
The suit also alleges that Zingarelli’s accuser — aided by Kaufman — “willfully destroyed text messages that demonstrated the voluntary and consensual nature of the sexual relations between them.” The Collegian does not name individuals who identify as victims of sexual assault.
Amidst a volley of filings two months ago, Kenyon’s lawyers said Kaufman had “no liability as a matter of law under the Volunteer Protection Act,” a federal statute designed to indemnify non-profits against the actions of those who assist them.
The College issued a statement when Zingarelli’s lawsuit came to light in December.
“Kenyon College will defend the integrity of its rules of governance and student conduct in the matter of a lawsuit filed by former student Stephen Zingarelli in Knox County Common Pleas Court on Dec. 5, 2013 against the College and others,” the statement read. “The College believes the allegations are unfounded.” “Out of concern for the rights of the former students involved, and as a matter of policy, the College declines any further statement at this time.”
Zingarelli was found not guilty of rape and gross sexual imposition on June 26, 2013 in criminal court. Judge Eyster also presided over that trial, but felt no compunction about his role in the civil suit.
“I didn’t see any need to [recuse myself],” Eyster said. “Neither party has asked that I recuse myself. I don’t know why I would.”
Eyster said because the civil suit is a jury trial — as opposed to a bench trial where the verdict is decided by the judge — he does not foresee a conflict of interest.
“What I’ve decided in the past is not relevant,” he said.
The College’s chief attorney, Richard Lovering, declined to comment on whether or not Eyster should have recused himself or if the defense feared an anti-Kenyon bias from a Knox County jury, citing Zingarelli’s pending civil suit. Kaufman also declined to comment.