The University of Cincinnati suspended a female student for allegedly engaging in nonconsensual sex with a male student who claimed he was too drunk at the time to approve the encounter.
The fact that this case involves a male accuser ("John Doe") and a female aggressor ("Jane Roe") makes it unusual among Title IX complaints. (Title IX is the federal statute that forbids sex discrimination in schools.) But the female student's lawsuit against Cincinnati—which accuses the university of violating her due process rights—reveals something even odder: Roe had previously filed a sexual misconduct complaint against one of Doe's friends.
Roe's lawsuit, then, suggests that Doe filed the complaint against Roe as a kind of revenge for getting his friend in trouble. (I have an alternative theory, but I'll save that for the end.)
according to the suit.
Roe also contends that it was ridiculous to find her guilty of nonconsensual sex because of Doe's drunkenness, but not find Doe guilty too: Roe was also drunk at the time, so under the rules she was just as unable to consent to sex as he was. While this might seem like a paradox—how can two young people rape each other?—it would actually be a straightforward application of affirmative consent, which requires all participants in a sexual encounter to proactively obtain freely given and unambiguous consent before proceeding.
The encounter between Roe and Doe took place on September 30, 2017. They went to a party together and then returned to Doe's residence after Doe said he was feeling drunk. They went to his bedroom, where Roe fell asleep. Doe eventually crawled into bed and initiated sexual contact with her. After allowing him to touch her, Roe asked if "there was anything else you want to do." He said no and they went to sleep. (Keep in mind that this is Roe's account, and she is the accused.)
On October 2, Doe went to the school's Title IX office and filed a complaint alleging that Roe had engaged in sexual activity with him while he was too drunk to give consent.
That same day, Title IX Coordinator Karla Phillips informed Roe that she was under investigation. Since neither party disputed that sexual activity had occurred, the only relevant matter was whether Doe had been able to give consent. At a hearing, the university determined that he had been intoxicated, and that it thus had no choice but to suspend Roe until his graduation. Roe filed an appeal and was denied.
According to
The Cincinnati Enquirer, Roe said that she was being punished for "engaging in the same sexual freedoms that men on the campus enjoy." It might be more accurate to say she is being held to the same standard—a standard that is,
for many reasons, horrible.
Roe's theory that Doe's complaint was a form of revenge is interesting, and it could be true. Perhaps the whole thing was a setup—he lured her to his bedroom, feigned drunkenness, and initiated sexual contact, fully intending to race to the Title IX office the next day,
no-one-wounds-me-with-impunity style.
Here's an alternative theory: Doe woke up, realized they had engaged in sexual activity while they were both drunk, and feared that she would file a complaint against
him, as she had done to his friend. Panic-stricken, he felt he had no choice but to beat her to the punch.
Indeed, if you suspect you are going to become the subject of a Title IX investigation, the optimal strategy may very well be to file the first complaint. For reasons not completely clear to me, Title IX administrators often appear biased in favor of the initial complainant, and presume the other party is the wrongdoer.
