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College contradicts its own ‘affirmative consent’ policy in responding to student’s due process lawsuit

‘Overt actions’ constitute consent, too

St. Olaf College appears to be holding a former student to a narrower sexual-conduct standard than is written in its own Title IX policy.

The private school in Minnesota asked a federal judge to dismiss a lawsuit by Dilip Rao, saying it expelled him in part because “he never obtained clear verbal consent” from his accuser to sexually touch her, the Pioneer Press reports.

Though St. Olaf uses an “affirmative consent” standard for sexual activity, its Title IX policy explicitly recognizes consent when demonstrated by “overt actions.”

In his lawsuit, 19-year-old Rao claims that he received affirmative consent from the student because she “lifted her hips slightly to allow him to remove her jeans.” St. Olaf said the female student gave him an “inaudible response” before he removed her jeans, so her consent wasn’t valid.

The college also did not claim that the unnamed accuser was incapacitated at the time, because its own investigation concluded that she “consented to some kissing and touching but not to getting naked with Rao.”

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The lawsuit claims that Rao and his accuser had just met when they played “Truth or Dare” together with three others in November 2017. The two were drinking at the time, and returned to his dorm room after the game.

They “kissed and groped each other on his bed but stopped once she fell asleep,” he claims. She woke up when he got up to use the bathroom and “seemed confused about why she was naked.” The accuser then got dressed and walked home, texting a friend that something “bad happened,” according to the Press.

She reported the incident to police, claiming she had told Rao repeatedly that “she was tired and didn’t want him to touch her.”

County prosecutors accused Rao of more serious violations than St. Olaf did. The criminal sexual conduct charges against him “relate to a victim who was forced or coerced or who was mentally incapacitated or physically helpless,” the Press reports.

St. Olaf claims that Rao admitted that he engaged in “further sexual contact” with his accuser after she “fell asleep.”

Rao accused St. Olaf of “overcompensating” for its failure to punish another alleged rapist, which brought bad publicity, by depriving him due process in this case. He also blamed the Obama administration’s Title IX guidance, which had been rescinded two months before the disputed incident, for St. Olaf’s unfair treatment.

The College Fix has asked the college to explain why it cited Rao’s failure to receive “clear verbal consent” when its Title IX policy recognizes “overt actions” as valid consent.

Read the Press report.

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IMAGE: Albina Glisic/Shutterstock

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