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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 senior 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.

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