By Henri Gendreau
The trial in the civil suit that former Kenyon student Stephen Zingarelli brought last year against the College and two former students has been continued to summer 2015. After a pretrial hearing this past Monday, Dec. 8, the Knox County Common Pleas Court scheduled a jury trial — originally planned for April 7 — for July 28, 2015.
In December of 2013, Zingarelli sued the College, a student who accused him of sexual assault and a Sexual Misconduct Advisor (SMA) on 14 counts, including breach of contract, negligence and defamation. Zingarelli alleged that his accuser made a false report of sexual assault, that, as an SMA, Ellen Kaufman ’13 encouraged her to destroy evidence and that Kenyon was negligent in training Kaufman and mishandled its Student Conduct Review Board process as outlined in the Student Handbook.
“There are issues here that aren’t typical, aren’t easily resolved,” Judge Otho Eyster said. “This case is only a year old, so this [the continuance] is not unusual.”
Zingarelli was acquitted on charges of rape and gross sexual imposition on June 26, 2013. He applied for readmission to the College on or around October 1, 2013 to complete his final semester and was told he “would be readmitted subject to the outcome of a Student Conduct Review Board hearing,” according to the plaintiff’s pretrial statement filed Dec. 1, 2014.
In the statement, attorneys for Zingarelli claim that in December 2012 “based on the counsel of Dean of Students Henry Toutain, Stephen was duped into believing he had no option but to ‘voluntarily’ withdraw from Kenyon. Since his constructive expulsion, Stephen’s official academic transcript has included a notation, ‘student conduct charges pending.’”
Zingarelli claims the notation on his transcript has prevented him from being admitted to another university. The statement also claims Zingarelli’s faculty advisor for the planned Student Conduct hearing — Associate Professor of Political Science Tim Spiekerman — told Zingarelli that, as the statement put it, “it would be very difficult for Stephen — or any other male student — to prevail at a Student Conduct Review Board Hearing in a case alleging sexual misconduct.”
In an email sent on Wednesday, Spiekerman wrote, “The standard of proof in these cases is very slight, so I always tell anyone who asks about their prospects that it will be difficult, if not impossible, to prevail.”
The College rebutted the plaintiff’s allegations in its pretrial statement.
“Kenyon responded to Zingarelli’s concerns according to the provision of the Student Handbook and Title IX guidance,” the statement says, referring to the 1972 statute that bans sex-based discrimination in an educational setting. “Ultimately, Zingarelli refused the opportunity for a hearing by the Student Handbook and withdrew his request for readmission, canceled the hearing at which he would have had an opportunity to present his defense to the allegations and filed the present suit rather than participate in the student conduct hearing provided by the Student Handbook.”
Kenyon and Kaufman — who are being represented by Columbus-based firm Bricker & Eckler — say Kaufman, as a former volunteer, should be dismissed from the case under the Volunteer Protection Act, a law designed to protect nonprofit volunteers from tort claims. Additionally, Kenyon and Kaufman deny she advised Zingarelli’s accuser to delete text messages or other evidence.
Zingarelli was deposed in the case on Monday, and plans for further depositions are ongoing.
The College’s pretrial statement mentions that the defense plans on deposing, among others, “the other female student who submitted a sexual misconduct complaint against Plaintiff Zingarelli.” On Tuesday, Richard Lovering, an attorney for Kenyon and Kaufman, declined to comment further. President Sean Decatur also declined to comment.
Lawyers for the student who accused Zingarelli of sexual assault — whose name is being withheld because it is the Collegian’s policy not to name those who identify as victims of sexual assault — submitted a motion for partial summary judgment for the charges of “malicious prosecution” and “intentional infliction of emotional distress” to be dismissed.
Eyster said he would hold off on making a judgment until the plaintiff responds to the motion. Eyster said the attorneys have not ruled out mediation, but that it is “more difficult to settle this kind of case.”
“It may very well go to trial,” he added.
Zingarelli — represented by Cleveland-based film Cavitch, Familo & Durkin — declined to comment. Toutain also declined to comment.