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Judge William Bertlesman rejects NKU gag order, motion to seal documents in Jane Doe rape case


Staff report

Judge William O. Bertlesman of the U.S. District Court in Covington ruled against Northern Kentucky University Tuesday in denying both its motion for a gag order and its motion to seal depositions in the Jane Doe case before the court.

Jane Doe vs. Northern Kentucky University, et. al., involves a student who says she was raped in a campus dorm in 2013 and that the university’s own internal committee found she had very likely been assaulted by the male student identified. The suit involves her claim that the university did not protect her from further harassment by the perpetrator and did not follow their own procedures for doing so. Doe claims he was never admonished or sanctioned for breaking the rules related to future contact with her.

Judge William Bertlesman

Judge William Bertlesman

The suit claims administrators were “indifferent” and perhaps “hostile” to her numerous pleas for help.

In his deposition, now former NKU Police Chief Les Kachurek testified under oath that he had never been given any information by school administrators to enforce any sanctions against the male student or anyone else found in violation of the school’s policy against sexual harassment or assault.

Speaking for the Northern Kentucky Tribune and its motion-to-intervene against both NKU requests, attorney Kathie Grisham argued for the important public nature of the case and for the public’s right to be informed of the proceedings.

Bertlesman agreed, noting that cases involving sexual abuse on college campuses are constantly in the news today and that it is an “issue of great public interest.”

Katherine Coleman

Katherine Coleman

He took issue too with NKU’s argument in its motions that disclosures related to depositions in the case and ‘trying the case in the media’ would hinder the ability for the university and the defendants to get a fair trial. He said the court has many options for seating an impartial jury – and does all the time.

Every effort will be made, he said, to ensure a fair trial and any remedy is preferable “to imposing a gag order.”

“This case does not call for a gag order – it just can’t be justified,” he said.

In other actions, Bertelsman heard from both NKU’s counsel Katherine Coleman of the Lexington law firm Sturgill Turner and from Jane Doe’s counsel Kevin Murphy on how to proceed with the case to avoid “more waste of time.”

“This is a very important case, a really important public issue,” Bertelsman said. “Let’s get it resolved.”

Kevin Murphy

Kevin Murphy

Attorneys argued mostly about how the Family Educational Rights and Privacy Act (FERPA) – a federal law that protects the privacy of student education records – will be applied going forward.

At one point, Bertlesman cited a 6th Circuit case which holds that “nothing in FERPA prevents a university from producing records.”

Murphy argued that NKU’s counsel was hiding behind FERPA, not to protect student rights but to protect the administration.

Coleman argued that NKU is happy to release records but needs an official request or a court order to do so.

Bertlesman instructed counsel to work together to devise an Agreed Order upon which future discovery will be based. This is to be submitted by Monday or the judge will compose his own Order.

Bertlesman also agreed to Murphy’s request for a second deposition of NKU Athletic Director Ken Bothoff so that his questions can be fully answered.

Murphy filed a motion for sanctions for one of NKU’s attorneys for “interferring” with his first deposition based on persistent FERPA claims that Murphy says were not applicable. Bertlesman took the sanctions request under advisement.

He urged the opposing counsels to “try to get along better” and set a targeted timetable for resolution that all parties agreed to.

November 15 has been set for a settlement conference, as ordered by the court.


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12 Comments

  1. Thomas Haderlein says:

    Bravo to Judge Bertlesman on standing up for the public and against the concealment tactics of the NKU attorneys. The Jane Doe facts are there for everyone to see, but we have since learned because of this case there is more, with NKU’s athletic director admitting under oath he covered up a “sexual incident” involving three basketball players. Bring out all the names, bring the guilty to justice. And we haven’t forgotten our fearless leader, President Geoff Mearns, and his reluctance to do anything about these assaults/incidents/rapes.

  2. Arthur Yates says:

    Let me begin by saying the judge is exactly correct in his ruling, denying NKU any protection by hiding under the flawed FERPA laws. He is standing up for the public’s right to know and I applaud his decision. There should be no concealing of testimony, one way or the other.

    That said, I find the Northern Kentucky Tribune’s coverage of this case extremely flawed. The readers are very aware of the Jane Doe situation, and I would guess most are sympathetic to her suffering. I certainly am. But, if she and her attorney are so driven by justice and not a large payday, why no criminal charges sought? And while I agree there is no question she was indeed assaulted and the victim of an amateurish cover-up attempt by NKU (see the former DPS chief’s deposition), why is she hiding behind the Victim Card while trying to get money from NKU?

    The Northern Kentucky Tribune is protesting NKU should not be able to conceal information due to FERPA, and they are right. NKU should not be able to hide behind FERPA to hide its sins. But Jane Doe should not be able to hide behind the “victim’s right” is she is only attempting to secure a financial gain and not prosecute the guilty party to the fullest. By accusing NKU of trying to conceal something, while at the same time doing their best to tenaciously protect the identity of Jane Doe, the Northern Kentucky Tribune comes out looking like a hypocrite, full of contradictions to its own protestations.

    We can’t even put a finger on the reporter, because all we see in the by-line space is staff report. Is the reporter also attempting to hide for cover? Why is it fine and dandy to expect NKU to reveal its sins, but at the same time it’s fine for Jane Doe and the Northern Kentucky Tribune to seek anonymity? And why are you not applying your own loft standards expected of NKU being transparent, when you as a media entity are hiding relevant information about Jane Doe and her attacker?

    I agree with the pursuit of the truth by journalists. But in this case, Jane Doe is seeking money, not justice. So is her attorney, who has made the NKU lawyers look like pathetic paralegals in the media. Do I think NKU is guilty? Absolutely, no question. They have allowed Jane Doe to be assaulted on campus and did everything in their power to deflect the truth. They are guilty as charged and should face the consequences, both criminally and financially. But why is there no pursuit of criminal charges against the perpetrator? Or against those at NKU who covered this up?

    Same with the three basketball players and the sexual incident, the worst-kept secret in the history of NKU escapades. Is the NKU director of athletics guilty of covering it up so the players could play their next game? Of course, from his own deposition he admits such. Were there multiple witnesses to this alleged incident? Yes, as many as 20 people were there in the dorm when it happened. But why bring it up almost two years later? Were the players guilty? Of course. Did NKU conduct a proper investigation with law enforcement? Of course not. But why no pursuit of criminal charges? And why is Jan Doe’s case even remotely connected to the basketball players sexual incident? Very simple: Jan Doe’s attorney is trying to show NKU looks the other way when it comes to sexual assault. And he’s doing it for money. Otherwise, he would be contacting the proper authorities and alerting them that criminals are on the loose. His lack of diligence in this area tells the entire story.

    And if this goes to trial, hopefully the Northern Kentucky Tribune will include a real name for Jane Doe, as she is more than willing to take money from NKU in the soon-to-be signed off settlement for a huge payday.

    • Judy Clabes says:

      Mr. Yates: An answer to one of your questions is that multiple reporters and editors contribute to the stories. Our identities are not secret. We’re a small staff and people fill a lot of roles. Most media organizations do not identify the names of rape victims, and we are one of those. We have not used the name of the accused rapist even though we know that as well (it isn’t a secret on campus either). The civil suit is not against the rapist; the civil suit is against NKU and some administration officials and it alleges that they did not protect the victim after she went through their “internal procedures” and trusted their process. The civil suit is a matter of public record and that is why we are reporting it. On the question of criminal charges, it is the victim (or victims) in the incidents you cite who must file criminal charges. There are many reasons young women don’t do that and they are probably all different and very personal. One victim told the Newport Police she didn’t want to file criminal charges against some NKU basketball players because she feared “repercussions.” The Newport Police told us they wanted her to file charges so they could act. Her father told us “she just wants to put it behind her and move on.” The police can’t force people to file charges. We can’t make people speak out. People interpret the victim’s reluctance to file charges in different ways, but rape victims are traumatized in different ways as well. Until the stigma and blame-the-victim attitude changes dramatically, sexual assault victims will always be ambivalent about filing police reports. There’s plenty of research on the subject. In regard to why so late on the reporting of the three basketball players and the young woman in March 1, 2015. A number of media organizations were following rumors and tips about the incident but none of us could get anything on the record so the story was not published, even though most of us know the names of all those involved. A few weeks ago a public document, with under-oath testimony by the NKU Athletic Director, revealed (and confirmed) the information we had and therefore we had an official record of the incident for the first time. And at that time, we shared it with the public– citing verbatim the public testimony. You have drawn certain conclusions from what you know — and so have we. Is there more to know? Can it be proved or substantiated? These are questions that have to be answered and that will determine whether those stories can be told. You have judged guilt and innocence without benefit of a process or investigation or a court of law. You have rushed to judgment based on whatever you think you know, and it’s fairly harsh judgment. You are free to do that. We have to wait to see what the court decides. — Judy Clabes, editor and publisher of the Northern Kentucky Tribune. I’m happy and proud to take responsibility for what we do.

    • Jim Smith says:

      Arthur: You are right on with most of your comments. The Tribune has unfairly brought up the incident of what happened in 2015 with three of our basketball players, not mentioning once it happened under the Former Head Coach and his Staff. It was a college prank and Mr. Bothof did a great job of handling it internally. Mr. Bothof took under consideration the Former Head Coach and how the three players were needed in our A-SUN Tournament game in Regents Hall, and he met with many of the administrators about it. They played because there were no charges filed against them. It gave the Former Head Coach a full squad in the A-SUN Tournament, a fair chance to see if he would be brought back WITHOUT the excuse of he didn’t have three of his players. They lost, and Mr. Bothof made the decision to relieve the Former Head Coach of his duties. This is all the truth.

      Just to show there is an agenda, we were told last week one of the Former Head Coach’s assistants testified against us in the Jane Doe matter and brought up the incident in 2015. It’s all a case of bitter ex-employees trying to get back at great men like President Mearns and Mr. Bothof. The Jane Doe attorney is feeding the Tribune, so don’t pay any attention to her response to you, you brought up great points about why they don’t name her. Norse Up!

      • Judy Clabes says:

        Legal documents are accessible through a system called Pacer, which is what is “feeding” our coverage. Everything we’ve reported has come directly from public record, Mr. Smith — or whoever you are. You are not listed on the Athletic Department staff but you seem to have a lot of “insider information” — so what’s your source? Have you read the legal documents? What does Norse Up mean to you, by the way. Is it all about sports or is it about ethics and decent character and civil behavior and being a productive citizen — which is what it means to most people at NKU. Some of those decent people are our sources as well, Mr. Smith or whoever you are. They don’t all see things your way. But, again, we listen — but we verify with the real facts, as found in legal documents.

  3. Paul Webster says:

    Some interesting points made by both Arthur Yates and Judy Clabes. Of course, those are offset by the usual idiot rants from NKU sycophant Jim Smith. Jim Smith must really need his job to keep defending Mearns and Bothof like he does each time. Makes me wonder if he’s being instructed to try and discredit the Tribune by those two clowns. Don’t mind him none, Judy, he’s an idiot either way.

    On to Arthur and Judy, I kind of agree with both of you on some of the points. Judy is right that “People interpret the victim’s reluctance to file charges in different ways, but rape victims are traumatized in different ways as well.” Very good point. No one can argue this one bit. But a prosecutor can subpoena a victim (also known as a witness) to a trial or get a deposition if the evidence is there. This is where I see Arthur’s points about Jane Doe and the criminal vs. the money grab thing. None of us want a rapist walking around free.

    I think if Jane Doe and her attorney want the money, they should also go forth with filing a criminal complain against the guy. Same with the NKY Tribune, if you know the rapists by name, it might be a good idea to reveal him so the public is aware of such an offender. Just my 2 cents.

    • Judy Clabes says:

      Thanks, Mr. Webster. I would need to know what the statute of limitations is on filing a criminal rape complaint (just looked — there is none in KY apparently). One of the problems I would see re filing a criminal charge and actually getting a conviction is — there is no rape kit. Short of a confession chances are slim on that front. I doubt that the third-party revelation to the former Police Chief (their friends admitted to them he had raped Jane Doe, according to the disposition, would stand up. The main reason victims should report sexual abuse directly to the police is that procedures are followed that result in evidence admissible in court. Things get so complicated when victims don’t report — for young women it is often because they are so ashamed and they don’t want to have to tell their parents — particularly fathers — out of fear for what they will think of her or of what an angry father might do. The trauma is real and deep and can last a lifetime — and affect relationships forever. It’s so easy for the rest of us to say what a young woman should do. There are no easy solutions to this problem. Or to figuring out how to deal with relationship rape or date rape or any form of sexual abuse. I assume you are correct that a prosecutor could do what you say — but a reluctant witness can easily be discredited in a trial situation — so the added trauma to the woman is probably not worth it to good prosecutors. The problem with the Trib naming the “rapist” is that he has not been convicted (or even charged) with that crime. We are not the judge and executioner and shouldn’t assume that role — and calling him that without legal cause to do so subjects us to libel, which is in itself a serious offense. We all have our roles, Mr. Webster, and we have to trust that those who have certain duties — including the administrators at NKU and other college campuses across the country — live up to their obligations, follow the appropriate procedures for the good of the students and not for covering up their own failings, and keep our campuses truly safe. One in four women on college campuses today suffers some form of sexual assault. This is an epidemic we should not willingly accept. I agree with Mr. Yates on his broader views. He is free to draw conclusions that I am not free to do. I do think, however, that Jane Doe has suffered traumatic experiences further exacerbated, she claims, by a system that did not protect her as it said it would against having to face her attacker on campus. Perhaps she believes that a civil suit for a monetary sum may at least help her get the therapy she will need going forward. But it is up to her attorney to prove that she deserves that — and that is the process that is taking place in Judge Bertlesman’s court and we have to let the process play out. We argued for an open process and we prevailed so that we could inform our readers about what happens along the way to a resolution. — Judy Clabes (signing my name — it’s real — so Mr. Smith doesn’t accuse me of hiding 🙂

      • Troy Hopkins says:

        Judy/Paul: Let me get in on this: Derrick Rose was named in a rape allegation for a lawsuit, and he was named? Why not the NKU rapist? Should someone not point him out so people know who it is? If he’s running around free, that’s a problem, right?

        • Judy Clabes says:

          He’s an adult public figure and part of a civil trial on a lawsuit brought by an adult woman two years after the fact and the jury found him and his two friends not guilty after a two-week trial. There was no physical evidence to support the rape. The L.A. police say they are continuing to investigate her criminal complaint. She has still not been identified. There may be some tenuous parallels to any other rape case but I’m not sure really how to apply them to the NKU case at hand. Age would be one disconnect.

      • Paul Webster says:

        I see your points, but there is no statute of limitations in this instance. I don’t want Jane Doe dragged through a public circus, not my point. I want those responsible and who aided those individuals escape the system brought to justice, not the victims. Based off they depositions, Kachurek and Bothof could, in theory, both be charged with obstruction of justice if the evidence supports actual rape. It referred to as “Anticipatory obstruction of justice” in a recent case, here’s what they could expect: “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

        This would be a good deterrent against trying to cover up violent crimes in campus. Just saying.

  4. Troy Hopkins says:

    Judge Bertlesman deserves a lot of praise for standing firm and not allowing NKU to bury the facts about these rapes. I hope NKU is paying this Lexington law firm Sturgill Turner only if NKU wins the case, they are getting killed in the press and the p.r. damage done by these stories to the campus is beyond repair. NKU has tried unsuccessfully to cover up multiple rapes it would seem. They are paying a Lexington law firm to defend them, but they are getting completely blown away publicly by this same law firm’s inability to get out in front of things. Sounds like a waste of tax dollars by NKU. Maybe they can get their new, half-starved looking mascot to go to court and defend them. He couldn’t do any worse than the bunch of backward lawyers that’s defending them now. Then again, it’s obvious NKU is guilty of looking the other way while sexual assaults are happening on their campus, so there is no defense.

  5. Harvey Gosney says:

    Major props to Judge Bertlesman on this ruling, a good man making the right call. NKU has juke and jived their way into trouble, the Judge sees through it. I want to see the Jane Doe case played out in court, but I have a strong hunch the lawyers-for-hire that NKU is paying a king’s ransom to defend them will see the light and agree to a quiet settlement. This has already been a major embarrassment to those of us who have family and friends that work for NKU.

    Also props to the Judge for making sure the AD Bothof gets a second round of deposition from the Jane Doe attorney. The last time the NKU attorney objected to every other question thrown at Bothof, who still admitted under oath he covered up a sexual incident with the three basketball players. Bothof did such a good job for the plaintiff’s case, they want him back for seconds. My personal opinion, and I’ve followed NKU basketball since they was NKSC in the early ‘70s, is Bothof is the most incompetent AD in the history of the school. He might be the dirtiest as well, and that’s saying something considering we had Eaton in that job before him.

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