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In female-on-male campus sexual assault case, judge refuses to require cross-examination

They aren’t ‘similarly situated,’ so it’s not a due-process violation

If you want to accuse someone of sexual assault, say you don’t remember being assaulted.

A federal judge refused to issue an injunction against the University of Cincinnati in response to a lawsuit by a female student who claimed the university unconstitutionally found her responsible for sexual assault.

“Jane Roe” had claimed that her sexual partner falsely accused her in retaliation for her accusation against his friend a year earlier.

The public university believed “John Doe” in part because he claimed to be so drunk that he couldn’t remember any sexual activity. Roe, in contrast, claimed to be “not too drunk” during their encounter, and called it consensual.

The university was under no obligation to let Roe fully cross-examine Doe’s witnesses about her earlier accusation against his friend, U.S. District Judge Timothy Black wrote in his order denying an injunction last week.

Black rejected Roe’s claim that the 6th U.S. Circuit Court of Appeals had required such cross-examination in a ruling a year ago, also against the University of Cincinnati.

In addition, the judge denied that Roe and Doe were “similarly situated” – that both of them should have been investigated for potential sexual violations, rather than only Roe being investigated.

Hence, the 6th Circuit’s ruling against Miami University of Ohio earlier this year for selective enforcement does not apply to this case, Black said.

Brooklyn College Prof. KC Johnson, who chronicles Title IX-related litigation, said Judge Black had “narrowly” interpreted the two 6th Circuit precedents. This stands in “sharp contrast” to “every other” ruling on the subject by an Ohio or Michigan judge for a year.

MORE: UC suspends female student because male sexually touched her

‘Tipsy’ and consensual vs. incapacitated and opposed to sex

Roe was trying to stop the university from suspending her until Doe leaves the university and yanking her ROTC scholarship as punishment for the alleged assault. (He’s also an ROTC student.)

She had walked Doe home from an off-campus party because he was drunk and she wanted to make sure he drank some water at home. Roe also refused to leave his house because she was “dizzy.”

They disagree who initiated the sexual encounter. Doe claimed that he woke up to an unclothed Roe “kissing and touching him,” denied her request for sex, and passed out again. When he woke up in the morning with “blood on his hands and sheets,” he guessed that he had digitally penetrated Roe.

Roe said Doe initiated the encounter and asked her to lock his door. She was “aware” he was intoxicated but called him “active and willing.” Their witnesses disagreed how intoxicated Roe was.

MORE6th Circuit blasts refusal to investigate male’s complaints

Judge Black punctuated his rejections of Roe’s legal claims with frequently underlined words and phrases.

She “does not demonstrate” the university treated her differently “under the same set of operative facts,” the judge said. Unlike in the 6th Circuit’s Miami ruling, Roe could have consented to the sexual encounter because she told the university it was consensual and described herself as “tipsy,” not incapacitated.

Black was persuaded by the university’s statement of differences between the parties: Doe reported sexual misconduct, claimed inability to consent and lack of memory, and said he wouldn’t have engaged in sexual activity “if sober.” Roe did none of these, and so the university was not obligated to investigate Doe’s alleged violations of an intoxicated Roe.

Also unlike Miami, Roe has not provided any “statistical evidence” showing a pattern of anti-female decisionmaking at the university, Black said. She simply claimed that the university punished her as a response to male students who are suing it for discriminatory punishment. This “plausible inference is not sufficient,” the judge said.

Judge refuses to order cross-examination in female-on-male sexual assault case by The College Fix on Scribd

Not a purely he-said, she-said situation

Black sided with the university’s argument that Roe wasn’t allowed to ask any question she wanted during cross-examination.

Roe wanted to grill Doe’s witnesses about her earlier accusation against Doe’s friend, known as the “April 2017 Complaint,” to reveal their “possible biases, prejudices, or ulterior motives” against her.

The university said these questions were irrelevant to whether Doe was capable of consent. Black said Doe’s witnesses already testified about their “past interactions” with Roe “that could evince bias,” including the April 2017 incident.

“Thus, the UC disciplinary board was well aware that witnesses might be biased against Ms. Roe,” the judge continued, and her desire for further cross-examination also could have exposed her “sexual history,” which could be “prejudicial” to her.

The Cincinnati ruling from a year ago is only applicable in truly he-said, she-said situations, Black said: The hearing board also reviewed Roe’s text messages that showed “she should have been aware” Doe couldn’t consent. “UC did not merely decide it believed Mr. Doe over Ms. Roe.”

The “government interest” of eliminating campus sexual assault outweighs Roe’s implication that the university is required to ask “all the questions” she submitted, even those they consider irrelevant or prejudicial.

Though he found that Roe would suffer “irreparable harm” without an injunction, Black said her presence on campus would also interfere with the rights of her accuser. Granting her relief would also “likely disturb” the university’s ability to enforce its disciplinary procedures.

Roe was facing a stacked deck from the start. While the university judged her based on the low “preponderance” standard, known as “more likely than not,” she had to prove her case for an injunction by “clear and convincing evidence” – roughly 75 percent certainty.

MORE6th Circuit requires cross-examination in Title IX cases

MORE: 6th Circuit says colleges must investigate alleged violations by accusers

IMAGE: vchal/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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