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Oberlin tells federal judge that sex becomes rape when one partner says ‘I am not sober’

Every accused student is judged ‘responsible’ 

As it joins the ever-growing ranks of colleges being sued by male students found responsible for sexual assault, Ohio’s most progressive college is throwing the proverbial spaghetti against the wall to see what sticks.

The radical feminism embraced by its Title IX coordinator? Proof of her commitment to “equality.” The accusing student’s alleged statement that she was “not sober” during part of the sexual encounter? Proof that she was “incapacitated.”

And finally, Oberlin College claims that even if “John Doe” did not sexually assault “Jane Roe” two years ago, a federal judge in Ohio has no grounds to rule on the merits of its sexual-assault investigation.

Doe’s lawsuit and Oberlin’s motion to dismiss were flagged by Cornell University Law Prof. William Jacobson last week, in a roundup of the school’s financial and legal woes for his Legal Insurrection blog.

Filed this summer but not previously publicized, according to Jacobson, the lawsuit alleges the liberal arts school found accused students responsible on at least one conduct charge in every sexual-assault case it heard in the 2015-2016 school year.

No one said she was incapacitated

The entirety of the dispute between Doe and Roe concerns whether she voluntarily performed oral sex on him, shortly before which she allegedly remarked “I am not sober.”

Text messages show that Roe suggested meeting with Doe in his room after her evening of drinking and smoking marijuana, but the coherence and correct spelling in her texts suggest “she was far from incapacitated” less than an hour before they met.

By everyone’s agreement, their intercourse was consensual until Roe complained she was “dry down there” and Doe stopped. Her comment about her sobriety appeared intended to explain why the sex had become uncomfortable, the suit claims.

MORE: Presuming students guilty is like banning long hair in school?

Following the encounter, Roe told several close friends about it and “gradually increased the severity of the accusations” to the point where eventually she felt “too intoxicated to consent,” according to the suit. But none of the friends testified that Roe showed any signs of incapacitation, simply describing her as intoxicated based on “their friendship” and familiarity with her.

The Title IX office at Oberlin notified Doe a full week after the initial complaint was made that he was the subject of a sexual-assault investigation. Though its own policies require Oberlin to conclude investigations within 20 days of a complaint’s filing and resolve cases in 60 days, investigator Joshua Nolan took 120 days just to issue the investigative report.

It wasn’t until Nelson’s report was issued, the lawsuit says, that Doe “finally learned the substance of the allegations against him.”

The school’s Title IX regime is rife with “gender bias,” the suit claims. The coordinator at the time, Meredith Raimondo, helped design and implement it, and she described its purpose as a “survivor centered process” inspired by her feminist views:

Its goal, she has said, is to eliminate “rape culture,” an undefined term whose chief characteristic at Oberlin … is an unwavering commitment to treat sexual assault allegations as true, even in the face of serious doubts.

MORE: Bakery sues Oberlin’s Raimondo for leading protest calling it ‘racist’

The school was also notified three months before the disputed sexual encounter that it was under Title IX investigation by the Department of Education, meaning that if Oberlin didn’t appear “tough on sexual assault … [it] risked substantial negative publicity and a loss of federal funding,” the suit says.

The only basis for Oberlin’s finding against Doe is Roe’s lone statement “I am not sober,” which does not meet the definition of “incapacitation” in the college’s own policy, according to the suit.

Roe’s actions up until her statement suggested “there were no external signs of her intoxication,” and even that statement couldn’t be extrapolated to mean “Roe was so drunk that she didn’t know what she was doing and wasn’t in control of herself.”

The dictionary says feminism is good

The college’s motion to dismiss aims to convince Judge Solomon Oliver that Doe doesn’t have enough evidence to prove gender bias, which is “fatal” to his Title IX claim.

It adds context to Doe’s claim that every investigation that academic year led to a responsible finding against a male student. Only one in five reports of “sex-based discrimination and harassment” went forward into a “full investigation,” and about half of those “proceeded to formal process” where a student could be disciplined.

Title IX coordinator Raimondo (below, on a panel discussion) was “one of many” administrators who created the policy, and her stated feminism actually shows her fairness, the school argues, citing the Merriam-Webster dictionary:

Contrary to what Plaintiff may believe, feminism does not seek to engender bias against men. Rather, feminism is the “theory of the political, economic, and social equality of the sexes.” … Plaintiff’s allegation that Dr. Raimondo strove to achieve equality among the sexes in the formulation and execution of the Policy, therefore, disproves, rather than supports, his Title IX claim.

Doe also can’t point to any evidence that Oberlin would have treated a female student accused of sexual assault differently than a male, because he doesn’t know of any such male-on-female accusation, which negates his “selective enforcement” claim.

The fact that his male hearing adviser retweeted the comment “To survivors everywhere, we believe you” also does not demonstrate gender bias, because “sexual-assault victims can be both male and female,” Oberlin said, citing a 2016 ruling favorable to colleges from its federal appeals court of jurisdiction, the 6th Circuit.

MORE: 6th Circuit orders colleges to allow cross-examination in rape cases

Though Oberlin was acting in response to the Obama administration’s 2011 “Dear Colleague” letter on sexual misconduct and it was currently under federal Title IX investigation, Doe provides no evidence the college responded to “political and public pressure” by finding male students responsible, the college claims.

It followed the Obama-mandated “more likely than not” preponderance standard of evidence in judging that Roe did not give “effective consent” when she performed oral sex on Doe after saying she was “not sober.”

The college quoted its full policy on incapacitation to argue that Roe could have been incapacitated by the time Doe asked her to perform oral sex:

The Policy notes that the “impact of alcohol and drugs varies from person to person” and “can have a cumulative effect over time [so that] a person who may not have been incapacitated at the beginning of sexual activity may become incapacitated and therefore unable to give effective consent as the sexual activity continues.”

Oberlin doesn’t try to explain a seeming contradiction: that Roe claimed she “physically resisted” performing oral sex on Doe but the hearing panel instead judged her incapacitated, a state in which “an individual cannot make an informed and rational decision,” such as physically resisting a sexual act.

After consecutively noting Doe’s resistance claim and the panel’s finding, the college says: “Oberlin did not clearly abuse its discretion, nor did it act unreasonably, arbitrarily, or unconscionably” but simply followed its own procedure.

‘Plaintiff’s claims of innocence are insufficient’

Regardless of Doe’s culpability, Oberlin claims its process was enough.

In the motion to dismiss, the college says that Doe shouldn’t be able to get a court to issue a different judgment. “Plaintiff wants this Court to act as a policy maker and substitute its judgment for that of Oberlin. Courts, including those in this District, consistently refuse to assume this role. This Court should do the same and dismiss Plaintiff’s Complaint in its entirety.”

In its response to Doe’s opposition to the motion to dismiss, Oberlin reiterates that Doe’s culpability wasn’t the salient issue.

The college argues that courts have given special privileges to institutions of higher education because they have been sued by both accusers and accused students:

Noting that colleges and universities are caught between the proverbial rock and a hard place, courts, including those within the Sixth Circuit, presume that colleges and universities act with honesty and impartiality in adjudicating sexual assault claims. … Plaintiff’s claims of innocence, however, are insufficient to survive Oberlin’s motion to dismiss when Plaintiff has failed to allege any facts upon which a reasonable fact finder could conclude that he was treated differently because of his gender.

But again, Oberlin concluded that “it should have been clear” to Doe that Roe “was too intoxicated to consent,” based on her lone “I am not sober” comment.

MORE: Oberlin Black Student Union demands payment for time protesting

IMAGE: altafulla/Shutterstock

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About the Author
Jeremiah is a junior at Franciscan University of Steubenville, where he is majoring in journalism and minoring in human life studies. He has served on the student government as a senator. A fluent Spanish speaker, he also regularly contributes to Red Alert Politics, The Rouser and toddstarnes.com.

Add to the Discussion

  • KeenIncite

    “Plaintiff wants this Court to act as a policy maker and substitute its judgment for that of Oberlin…”

    That is exactly correct! What’s being adjudicated here is a crime! That is the exclusive purview of law enforcement and the courts, not any Title IX board! A federal law needs to be passed that requires all colleges to pass these types of complaints on to local law enforcement.

    • Civil Opinion

      Absolutely.

  • mark abrams

    Someone who commits fellatio without any overt threat or violence is doing so by choice whether inebriated or not. Fellatio is not a passive act on the females part. She must position herself in front of the male and take his genitalia in her mouth. To stop such an activity the male must detach and repel the female from him. So it must be Oberlin’s contention that a male, when informed that a female is drunk, must physically restrain her from doing what she chooses to do, which would be assault. Oberlin is evidently an insane asylum not a college.

  • MikeyParks

    Title IX has mutated into a license to abuse men. It was wrong-headed to begin with and now it’s criminally wrong-headed.

  • martqbdlve

    When did academia take over the criminal justice system? A rape needs to be investigated by the police.

    • Civil Opinion

      Seriously. The schools should take themselves out entirely. If you were raped/assaulted, you need to go to the police, not your academic adviser. If the police find guilt, THEN and ONLY THEN do you discipline the student. ESPECIALLY if the alleged action took place OFF CAMPUS. Students are not property of the schools. They should not be treated as such when incidents happen off campus.

      Do people not realize all of this extra bs from universities only drives up the cost of tuition? How do you think they pay for the lawyers, the departments and the investigative teams? Your tuition.

    • Cogsys

      I agree entirely, rape is a serious crime, college administrators have neither the training or mind set to properly investigate or punish such a crime.

    • J2

      More aptly, a parallel system of criminal justice…one that denies due process and the presumption of innocence.

      • martqbdlve

        Does this mean the police can grade my term paper?

        • Flag Girl

          ‘probably do a better job of it.

  • felixinmontana

    So an intoxicated male cannot engage willfully? So cannot rape?

    • martqbdlve

      I say charge them both with rape.

  • Cogsys

    Looking over the article it appears that Oberlin has less of a “Rape culture” than it has a “drug and alcohol” culture. If Oberlin really wants to do something, stop with the title IX program and crack down on drinking and drug use.

    • martqbdlve

      you nailed it!!
      If colleges and universities would work on the underage drinking. 90% or more of their rape culture would take care of itself. Both men and women do things when they have had a drink of two. They would not normally do.

  • raydrnayshon

    Why in heaven’s name go to Oberlin? At least if one is a straight male, especially if one is a straight white male, it’s like playing Russian Roulette every time one engages in physical contact of an intimate nature. Sooner or later, the odds are, some partner will be aggrieved about something, and that’s that. At best, thousands upon thousands in legal fees, and for what? To stay at Oberlin?

  • SterlingMaloryArcher

    Damn, I’ve been raped many, many times and didn’t even know it. #metoo

  • GulfPundit

    Five minutes after I have a shot of whisky I’m not sober. I’m also not drunk, incapacitated or incapable of making informed decisions. A ridiculous legal argument if there ever was one.

  • Rockster

    These idiotic ideologues think that this is feminism? They think that this promotes equality? No, all they are doing is creating a narrative which says women are weak and feeble minded individuals who have no agency to take responsibility for their chosen actions, These cases also debase true accusations of real sexual assault. This nonsense only empowers women in that it allows them to behave like immoral and unethical monsters who would prefer to destroy the life of another rather than simply own your own choices. Truly pathetic. Oberlin is pathetic.

  • J2

    I can think of no more effective policy than Oberlin’s Title IX implementation if the goal is to force male college students to remain celibate while in school, and to absolutely destroy heterosexual romance and sow complete mistrust between the sexes. I would expect nothing less than this sort of Reign of Terror over men by the Marxist-Feminist cabal whose goal all along has been to destroy the family and the institution of marriage. Just more women for the Lesbian Man Haters to keep for themselves, eh?

  • Henry Krinkle

    meredith raimondo: another liberal arts school graduate drawing a big fat salary and doing worse than nothing.
    there are zillions of parasites like this entrenched in our higher learning institutions, petty bureaucrats who cause the costs of a college education to skyrocket, and burn up millions in Federal aid, without adding any value to college educationsl