Staff report
Northern Kentucky University has filed a motion asking federal District Court Judge William O. Bertelsman to impose a gag order on all parties and their counsel in the case of Jane Doe who has sued the university over its handling of a rape Doe says occurred in a campus dorm in 2013. She was a freshman at the time.
The university’s lawyer, Katherine M. Coleman of Sturgill, Turner, Barker & Maloney law firm in Lexington, filed the motion Friday, in the wake of news reports about the deposition of NKU’s former police chief, Les Kachurek, in which he said that two friends of the male student the young woman had identified as her attacker told him he had confessed to the rape. Kachurek also said that administrators did not take his suggestions on improving campus safety and never provided him copies of sanctions against any students, which made it impossible to enforce such sanctions.
The deposition was part of a public record. NKU wants the judge to seal future documents related to the case so they cannot be made public.
Then followed on August 24 news reports revealing an abuse of a female NKU student in Newport last March by four male students. The incident was investigated by Newport police, but the young woman refused to press charges saying she feared “repercussions” because her attackers were members of the NKU basketball team. Though the incident was reported by Newport police to NKU police, no report was filed on the NKU police log. An NKU spokesperson later said the incident was handled internally for reasons related to student privacy. The student’s names were listed in the Newport police report, a public document.
The motion for the gag order argues that Jane Doe’s case “has been the subject of publicity from the outset” but that “active campaigning to the press by a party or a party’s council is inappropriate” and creates prejudice that threatens the ability to obtain a fair trial.
The Northern Kentucky Tribune will file an amicus brief with the court objecting to the imposition of a gag order, said Judith Clabes, editor and publisher. The Cincinnati Enquirer has reported that it will also file an objection.
The motion points to at least “seven separate known news stories since January,” and points particularly to the most recent, a Cincinnati Enquirer story on August 14. The story was based on the deposition of Kachurek filed with the court that became a public document.
The motion says that Jane Doe and her counsel were specifically interviewed for that story.
In that story Jane Doe describes her “alleged” treatment at NKU — by officials and students. Her attorney, Kevin Murphy, is quoted as calling NKU’s behavior “appalling” and revelations in Kachurek’s deposition as “shocking.”
The motion also cites a story appearing in the Northern Kentucky Tribune on January 22, a report about the filing of the lawsuit in federal court. Coleman’s motion for NKU says that “Murphy was extensively quoted in the story.”
“The references in the motion regarding our story are misleading in themselves,” said Clabes. “The story cites at length the exact language from the lawsuit which Mr. Murphy did file on his client’s behalf. It is public record. Mr. Murphy offered no additional comments for the story, nor did his client. The quotes in the story are directly from the lawsuit. Please note that the university’s response was also published in full and verbatim as was the full text of a controversial campus wide email from then Police Chief Kachurek.
“This motion fails to note that in a subsequent story on February 19, when the university filed its official response and asked for dismissal of the lawsuit, the NKYTribune also extensively quotes the university’s response verbatim. Neither Mr. Murphy nor his client were quoted in that story. It deals completely with the university’s official response, which is a matter of record.”
At the time, the NKyTribune provided access for readers to both legal documents in full. Those links to that public information are repeated here:
The motion cites several other stories in which Murphy has been liberally quoted with comments that “paint an extremely negative picture of the Defendants” while they are bound by “responsibilities imposed” by FERPA (Family Educational Rights and Privacy Act).
NKU argues that deposition transcripts and student records should be sealed. The motion refers specifically to Murphy’s recent deposition of NKU Athletic Director Ken Bothof, not yet public. Coleman objects that Murphy questioned Bothof about unrelated incidents on campus that involve “nonparty” students to the Doe case.
“The sealing of depositions will prevent the abuse of discovery for salacious media purposes,” protect nonparty students’ privacy, and keep the plaintiff (Jane Doe) from taking her case to the “court of public opinion,” says Coleman’s motion.
The motion concludes that “due to the extreme imbalance between the parties’ abilities to publically comment on this case, there is a severe likelihood of juror bias against the Defendants” (NKU, et al).
In response to inquiries, Murphy did tell the NKyTribune this morning that “a government agency receiving federal funds and supported by taxpayers should not be able to keep secret the sexual violence on their campus. The university’s policies and practices related to the handling of sexual abuse — in total and in specific incidences — is very much relevant to my client’s case.”
Mike Farrell, director of the Scripps Howard First Amendment Center at the University of Kentucky and special projects editor for the Northern Kentucky Tribune said, “The university’s attempt to prevent more information about this lawsuit from reaching the public demonstrates a blatant disregard for the First Amendment right of all Americans to be informed about what their government is doing.
“In a Supreme Court decision declaring trials should be open to the public and the news media, then Chief Justice Warren Burger wrote, ‘People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.’
“But that is exactly what NKU is doing, trying to keep the public from understanding how it handled this situation. The motion to gag the young woman and her attorney and seal other records shows its contempt for the public. No scientist has ever proven that pretrial publicity infects potential jurors to the point they can’t disregard it and decide a case only on the evidence.”
Previous related stories in the NKyTribune:
NKU students carrying mattresses protest
NKU student files suit related to sexual assault in dorm
NKU files reply to Doe complaint.