Judge denies subpoena for Title IX records in former BYU professor’s sexual abuse case

Officials at 4th District Court in Provo are currently holding hearings remotely due to the COVID-19 pandemic. On Monday, Judge Darold McDade denied a request for Title IX records in the sexual abuse case against a former BYU professor during an online hearing. (Lisi Merkley)

A 4th District Court judge denied a request for access to a BYU Title IX complaint in the case of a former BYU professor charged with sexually abusing one of his students.

Judge Darold McDade made the decision Monday afternoon following oral arguments by former BYU professor Michael James Clay’s attorneys, state prosecution and the alleged victim’s attorney. The hearing was held remotely because of COVID-19.

McDade ruled that the request does not meet the requirements found in Rule 14(b) of the Utah Rules of Criminal Procedure at this point in time.

The request by Clay’s attorneys was for email correspondence between the victim and the BYU Title IX Office regarding a report made by the victim’s freshman mentor to Title IX about an incident between the victim and her boyfriend, as well as any Title IX documents relating to those emails.

The defense argued that the victim recanted the allegations in the report, and that the records could prove a pattern of the victim misunderstanding or mischaracterizing interactions with those of the opposite sex, including Clay. The victim’s attorney, Randall Spencer, said the defense’s characterization of the emails was inaccurate, claiming that the victim told the Title IX Office there had been a misunderstanding and asked officials not to conduct an investigation.

Spencer added that the events mentioned in the requested records are unrelated to the circumstances in Clay’s case, especially considering the lack of consent inherent in the power dynamic between a professor and a student.

“This is a classic case of a fishing expedition,” Spencer said, “which will only victimize my client again.”

Deputy County Attorney Adam Pomeroy, who is representing the state, argued the motion was unsound for two main reasons. First, it requested information (any Title IX records attached to the requested emails) without having evidence that such information exists.

The defense countered by arguing that a general understanding of the Title IX process is sufficient evidence since it would dictate that a file be opened in conjunction with the emails and the original report made. Leah Aston, who represented Clay, said Pomeroy’s characterization of the issue was such that it “would require my client to have a crystal ball.”

Pomeroy’s second argument was that the information in the emails themselves is not exculpatory evidence since accessing them wouldn’t prove whether the defense or victim’s counsel’s characterization of the emails was correct.

Aston made two objections following the judge’s decision, arguing that the request was specific enough and that the request was not being made to generally challenge the credibility of the victim but to provide key information for Clay’s defense about how the victim may possibly misunderstand encounters with the opposite sex.

It is not clear if the victim, whose name has been left out of public court documents to protect her identity, was present at the hearing. However, an individual logged in with the name Michael Clay was in attendance online.

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