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This past June, FIRE reported on the case of a former Occidental College student who had filed a pseudonymous lawsuit against the private institution in California after being expelled for an alleged sexual assault. John Doe was found “responsible” for the violation despite significant evidence that the sexual encounter in question was consensual. (Readers can find exculpatory text messages and other materials on our Occidental case page.) Doe argued in his complaint that Occidental denied him key due process protections and failed to follow its own written policies in adjudicating the case.

Now Doe has also against the college with the Department of Education’s Office for Civil Rights (OCR), alleging that Occidental discriminated against him as a male student by refusing to investigate the sexual misconduct allegations he made against his accuser. Since both parties were intoxicated during their sexual encounter and there is no indication that Doe was the sole initiator, Doe’s Title IX complaint argues that Occidental should have given both students’ allegations the same serious consideration.

Occidental’s Title IX Coordinator claimed that the decision not to investigate Doe’s claim was based on his “inconsistent assertions, the timing of [his] complaint, and [his] failure to cooperate in the initial assessment process.” Yet as Doe’s Title IX complaint points out, Doe refused to be interviewed by Occidental’s counsel only after his own counsel was barred from the process. As FIREhas written before, it is critically important that students accused of serious crimes such as sexual assault have meaningful access to an attorney throughout all hearings, since anything they say could be used against them in court. That’s especially important when a lawyer paid by the college just happens to demand the right to question a plaintiff in an active lawsuit against the college while the plaintiff is alone and unrepresented.

Doe’s complaint also argues that the college created a by essentially convincing his accuser that she had been raped and profiling Doe as a rapist based on irrelevant characteristics like his high GPA and participation in sports. The complaint also alleges bias in the hearing process, which the complaint claims involved no males besides Doe.

Also noteworthy is the complaint’s discussion of how the evidence did not support a finding of responsibility—even by retroactively applying the strict and controversial “affirmative consent” standard recently codified in California and gaining traction elsewhere across the country. The complaint states (PDF):

It would be difficult to imagine a better documented case of affirmative consent for sexual activity than this case, where the female student initiates the sexual contact, asks for a condom in writing, tells a friend she is going to have sex in writing, tells friends she is "fine" when she is having sex, willingly performs oral sex, is interrupted by a roommate while having sexual intercourse and continues, and then sends smiley faces to friends right after having sex. In fact, Occidental made findings that Ms. Jane Doe engaged in conduct and made statements that would indicate she consented to sexual intercourse with Mr. Doe (Exh. 6, page 8) and there was no force, threat of force, or coercion involved. (Exh. 6, page 6, fn. 5.)

These findings, which are supported by the evidence, should have concluded the hearing in Mr. Doe's favor.

Instead, the complaint alleges, Occidental disregarded all signs of the accuser’s ability to consent and concluded that she was incapacitated and therefore couldn’t consent to sex. Particularly considering that Occidental disregarded its own definition of “incapacitated,” the case illustrates the extent to which institutions may be motivated to shift or misapply policy standards in order to reach a finding of guilt.

This will be an interesting case to watch for those concerned with due process for college students accused of sexual assault. If OCR decides to investigate, the case will be one of two in which institutions are alleged to have committed Title IX violations against male students accused of sexual assault and to have denied a fair hearing. Last month I reported on one such investigation against Brandeis University.

Check back to The Torch for updates.