Two students who each filed a sexual assault claim against the other based on the same sexual encounter were treated very differently by their college, leading to a harsh rebuke from a judge appointed by President Bill Clinton.
The students, referred to as John Doe and Jane Roe in court documents, were both students at Rensselaer Polytechnic Institute in New York. John was a senior when he matched with Jane on the dating app Tinder. The two messaged during the Fall 2019 semester and winter break before meeting in person during the Spring 2020 semester and having consensual sex multiple times.
On one of those occasions, John reportedly used his cell phone to record Jane as she was dressing. Jane did not like this and called a friend to immediately pick her up from John’s apartment. That friend then confronted John about the video and John said he deleted it from his phone.
Late in the night of January 22, Jane invited John to her dorm room. She would later claim she did this to further argue with John over the video and that she didn’t feel comfortable having such a discussion at John’s apartment. The two each contend that at some point after this argument, they had consensual sex. They also both contend that John drank vodka while in Jane’s dorm room.
Around 3:00 a.m., however, their stories diverge, court documents suggest. John claims Jane remained sober throughout the entire night while providing him more and more drinks. He then claims Jane pressured him to have sex with her again even though he didn’t want to because he only brought one condom. He says he eventually gave in but only remembers bits and pieces of the intercourse that followed, including Jane allegedly asking him to put his hands around her neck, with which he says he wasn’t comfortable. He says he eventually complied with her wished. He also says she pressured him into having anal sex, which he also didn’t want, but he complied for “about ten seconds” before he stopped because he was uncomfortable.
John also says that after their second encounter, he had to ask Jane to get him a glass of water because he was to drunk to get it himself. He says he left the next morning and eventually took a medical leave from school because of how uncomfortable he was with Jane’s requests that night.
Jane admitted she asked John to put his hands around her neck and apply pressure, but claims it happened during their first, consensual encounter and not the second. Jane also acknowledged that John struggled to get out of bed at some point that night and that John had admitted to being under the influence of “a couple substances that night.”
Jane, however, claimed that she and John argued after their first consensual encounter and that during his argument, John tried to choke her. She also claimed to RPI that John rubbed his penis against her that night without her consent. She told a Title IX investigator that she only had sexual intercourse with John because she was afraid he would hurt her if she refused. Around 9:00 a.m. the next morning, Jane alleged, John had sex with her without her consent and that she told him it was painful. She said John continued to have sex with her but kept asking if she wanted him to stop. When she did so, he allegedly continued to have sex with her for a “couple more seconds longer” before he stopped.
Jane told her resident advisor what happened, and the RA reported a sexual assault to RPI.
John was informed of the investigation against him on January 31. Months later, on June 9, he filed his own Title IX complaint against Jane, alleging he had been too drunk to consent to sexual activity the night of their last encounter. The school did not dismiss John’s claim by alleging it was done in retaliation, but instead briefly investigated it before concluding it was too flawed.
As Judge David Hurd wrote in his ruling on the case, similar flaws existed in Jane’s allegations and yet her complaint was not dismissed. RPI dismissed John’s complaint in part because the school said he failed to substantiate that he didn’t voluntarily consume the alcohol he was given in Jane’s dorm room nor did he substantiate that he had not initiated sexual contact with Jane.
“This raises a powerful inference of sex discrimination. After all, RPI’s reliance on these twin findings is curious considering that even the 2018 policy makes no mention of voluntary consumption of alcohol as a factor bearing on the question of a complainant’s inability to consent due to excess intoxication. Instead, that rule states that ‘[d]epending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.’ Any carveout based on voluntary intoxication must be cleverly hidden indeed to hide among such plain language,” Hurd wrote. “Similarly, the 2018 policy does not provide any exceptions to the rule that ‘[c]onsent may be initially given but withdrawn at any time.’ As a consequence, RPI’s specific finding that Doe failed to prove that he did not initiate his sexual encounter with Roe is once again bizarre, since it is apparently directly contrary to defendant’s own sexual misconduct policies.”
Hurd further excoriated RPI for dismissing John’s complaint even though there should have been enough evidence for it to hold up as Jane’s did. The school claimed John wasn’t drunk enough to be unable to consent because he took part in a “complex conversation,” was able to recall some details of the encounter, and was able to leave Jane’s room to smoke. Video footage also showed him walking steadily around 2:30 a.m. yet pausing on a staircase.
No evidence was provided to RPI that John participated in a “complex conversation.” What both John and Jane described as their discussion topics wouldn’t count as complex. Jane even admitted that during a conversation about the video, John “g[ot] kind of weird and… informed [her] that he was… under the influence of a couple substances.” After John filed his own complaint against Jane, she started claiming he was “completely coherent” during the incident.
Further, while RPI dismissed John’s pause on the staircase because it wasn’t “clear” why he paused – turning that into grounds to reject his accusations against Jane – the school was completely fine with Jane’s witnesses telling completely different stories of the night in question. Only one of Jane’s witnesses even mentioned the consensual sex that Jane admitted to on the night of the incident. One of the witnesses went so far as to say John “was apparently very out of it” and that Jane allowed him “to lay down” until he could sober up enough to leave. Such a claim supported John’s version of events, yet his complaint was dismissed and Jane’s was continued.
“[W]here the allegations are so inherently intertwined and the female’s complaint is accepted, flaws and all, while the male’s complaint is rejected for having similar flaws, that discrepancy lends force to the conclusion that the difference is traceable to gender discrimination,” Hurd wrote.
Hurd also took RPI to task for trying to claim that providing John due process protections would lead to mass rape on campus.
“It is troubling enough that defendant frames protections for one individual’s due process rights, whether that individual be male or female, as inciting campus sexual assault on a mass scale. But far worse is that by its own litigation position defendant seems already to be considering plaintiff to be guilty of violating the policy without giving him any opportunity to challenge its evidence. Needless to say, defendant’s arguments on this point are ill-advised, and do little to demonstrate that the equities do not favor granting plaintiff’s requested injunction,” Hurd wrote.
But it is in Hurd’s conclusion when he really drops the hammer on RPI and all colleges and universities that have discriminated against men in order to take campus sexual assault “seriously”: “[W]hatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.”