A male Oberlin College student was expelled even though the school lacked evidence the female accuser was incapacitated for their sexual encounter and even though she told investigators and a hearing panel drastically different stories.
The male student, referred to as John Doe in court documents, just received a win from U.S. Court of Appeals for the Sixth Circuit, which ruled Oberlin violated John’s rights by discriminating against him based on his sex. Writing for the majority, Judge Raymond Kethledge began the ruling with a fiery acknowledgement.
“Any number of federal constitutional and statutory provisions reflect the proposition that, in this country, we determine guilt or innocence individually—rather than collectively, based on one’s identification with some demographic group. That principle has not always been perfectly realized in our Nation’s history, but as judges it is one that we take an oath to enforce. Here, the relevant statute is Title IX of the Higher Education Act of 1965, which bars universities that receive federal funds from discriminating against students based on their sex,” he wrote.
Kethledge then laid out several ways in which Oberlin has demonstrated its bias against students accused of sexual misconduct – who are almost all male. For example, “Oberlin instructed its faculty, ‘via an online resource guide,’ that they should ‘[b]elieve’ students who report sexual assault, because ‘a very small minority of reported sexual assaults prove to be false reports,’” Kethledge wrote. Further, members of Oberlin’s Title IX office, which investigates and adjudicates claims of sexual misconduct, reportedly receive “annual training in strategies to protect parties who experience sexual misconduct[,]” but no training on “how to conduct impartial fact-finding proceedings,” John’s attorneys alleged.
The woman who was named Oberlin’s Title IX Coordinator, who oversees the department and has a say in sanctions against accused students, was hired in 2013 and said in 2014 that she was “committed to survivor-centered processes.” The Coordinator’s name is Meredith Raimondo, who was named as a defendant when Gibson’s Bakery sued Oberlin for defamation and won millions. Further, a report from Oberlin showed that 100% of allegations that resulted in a hearing panel ended with a responsible finding against the accused.
This all painted the backdrop for Jane Roe, as the accuser is referred to in court documents, to make her allegations against John. The two undergraduates met at a party in December 2015 and spent the night in John’s room after having consensual intercourse without a condom, court documents say. They had little interaction for the next two months, until John texted Jane at 1 in the morning on February 28, asking, “What are you up to tonight?” The two exchanged nine text messages in 30 minutes, court documents say. Jane said she was “about to smoke [marijuana]” in John’s residence hall and asked him if she could come by after. John said “yea.”
Jane arrived at John’s around 1:45 a.m. The two spoke briefly and began making out before taking off their clothes. Jane requested John use a condom when they had sex. During the encounter, Jane said she was thirsty, so John stopped to get her some water. They again had sex, this time without the condom, until Jane said she was “dry” because, “I’m not sober.”
John stopped having sex with her and asked if she would perform oral sex on him, to which she agreed. Afterward, the two talked a little and Jane left.
Nine days later, Jane told Raimondo that John had sexually assaulted her. Raimondo didn’t tell John about the charges until a week later, and even then only gave a vague description, writing in an email that Oberlin was investigating a claim that he had sexually assaulted Jane “on 2/27/16 while she was incapacitated due to alcohol and unable to consent to sexual activity.”
Raimondo appointed Joshua Nolan to investigate the allegations. Oberlin policy stated that investigations should take no more than 20 days and that the entire matter should be resolved in no more than 60 days. Nolan took 120 days to issue an investigative report, court documents say. After 61 days, John emailed Raimondo to ask about the delay, saying he couldn’t get in contact with Nolan. Raimondo said nothing except that Oberlin would notify him “of the reason(s) for the delay and the expected adjustment in time frames.”
It wasn’t until July 7, 2016 – more than four months after the sexual encounter – that John would even learn of the details of Jane’s allegations. Jane’s account of the encounter differed from John’s only slightly. She said John asked her oral sex before they had intercourse and she asked if he had a condom. She said nothing about being thirsty or John getting her water. She again said John “asked” her for oral sex and that she responded “okay, but I’m not very sober right now.” Jane wrote in a personal journal shortly after the incident that John “asked” her “to go down on him.”
Nolan interviewed 10 people, mostly Jane’s friends. Nearly all of them said Jane didn’t appear incapacitated, instead describing her as “intoxicated” but not “overly” so, her speech as “slower” than usual but “not slurred.” Another said she asked Jane if she was “good” when she saw her immediately before her encounter with John, to which Jane replied “yes.” The further from the incident, the more Jane claimed she was sexually assaulted. A friend she saw shortly after said Jane was “disappointed and upset that she had done something.” Another friend said Jane claimed she was “too intoxicated to consent.” A third friend, who spoke with Jane a few days after the encounter, said Jane said John had “sexually assaulted her” by “forc[ing] oral sex on her.”
When Nolan interviewed Jane, she was accompanied by her friend J.B., a male, whom she identified as her “designated support person.” J.B. would later say he was surprised by how different Jane’s account to Nolan was than what she had told him. J.B. said Nolan told him he would be brought back of his own interview, but Nolan never contacted him again. After J.B. heard that John had been found responsible, he emailed Raimondo saying that Jane told him John never forced her to perform oral sex on him and that her hearing testimony was misleading in other ways as well. Raimondo never responded and there is no evidence Oberlin considered anything J.B. said about the incident.
Despite what she wrote in her journal and what she told investigator Nolan about John asking her for oral sex, Jane claimed at the hearing that John forced her and never asked her. Nolan testified at the hearing, saying that the only contradiction he heard in testimony from what he was told during the investigation was from Jane about whether John asked for oral sex.
John was appointed an advisor who was supposed to support him, but this advisor “left the hearing early” and two weeks later retweeted: “To survivors everywhere, we believe you.”
John was unsurprisingly found responsible based on what the hearing panel claimed was a “preponderance of the evidence established that effective consent was not maintained for the entire sexual encounter that occurred on February 28, 2016.”
Judge Kethledge wrote:
Consent was absent, the panel found, because Roe was incapacitated, as the Policy defined it, from the moment she told Doe that she was “not sober.” The panel cited no other behavior supporting a finding either that Roe was incapacitated as defined by the Policy or that Doe would have had any reason to think she was. Nor did the panel mention the contradiction cited by Nolan, between what Roe told him (and several friends) and what she told the hearing panel, as to whether Doe had “asked” for oral sex. As a sanction, the panel recommended the most severe one: expulsion. The College accepted that recommendation and ordered Doe expelled.
Oberlin’s policy defined “incapacitated” as a person who “lack[s] conscious knowledge of the nature of the act” or “is physically helpless.” Jane’s casual remark about not being sober was enough for the hearing panel to determine she was “incapacitated,” despite what her friends said and the fact that not only did the school have to demonstrate that Jane was incapacitated as defined by Oberlin’s policy, but that John or a reasonable person would have been able to see that she was incapacitated.
John sued Oberlin, but a district court granted the school’s motion to dismiss. John appealed to the Sixth Circuit, which overturned the lower court’s decision.
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