A judge rebuked Brandeis University for denying fundamental due process rights to a student who was found guilty of sexual misconduct for a variety of non-violent offenses: most notably, because he had awakened his then-boyfriend with nonconsensual kisses.
The process that Brandeis employed to investigate the matter was "essentially secret and inquisitorial," according to Dennis Saylor, a federal judge who ruled that the accused student's lawsuit against Brandeis should continue.
This is a significant victory for advocates of due process in campus sexual misconduct investigations. It's also an implicit skewering of affirmative consent as official policy. The accused, "John Doe," was found responsible for stolen kisses, suggestive touches, and a wandering eye—all within the context of an established sexual relationship. His former partner and accuser, J.C., did not file a complaint with the university until well after the incidents took place. In fact, J.C.'s participation in Brandeis' "sexual assault training" program caused him to re-evaluate the relationship.
The two began dating in the fall of 2011. They broke up in the summer of 2013. In January 2014, J.C. made a two-sentence accusation against Doe, who was not informed of the nature of the charges against him. He was also denied a lawyer, the opportunity to evaluate evidence against him, and the opportunity to cross-examine witnesses, including his accuser. Brandeis uses the "special investigator" model to handle sexual assault disputes: a single administrator reviews the charges, investigates them, and makes a decision. There was no panel hearing. There was just one person's decision.
The investigator found Doe guilty on four of 12 charges, according to the court decision:
First, at the very beginning of their relationship, John placed J.C.'s hand on John's (clothed) groin while they were watching a movie in a dormitory room. J.C. now contends that the sexual contact was unwanted. John denies that the contact was non-consensual, and contends that it was simply the first step in their sexual relationship. Among other things, he notes that the two of them had sexual relations for the first time the very next day, and that they continued to have such relations for most of the next two years. He also contends that J.C. afterward recounted the episode in a humorous manner to friends, although the university would not accept his evidence of that fact.
Second, John and J.C. frequently slept together in the same bed during their relationship. According to J.C., John would occasionally wake him up by kissing him, and sometimes persisted when J.C. wanted to go back to sleep.
The other two charges involved Doe checking out J.C. in the shower, and an attempt at oral sex gone wrong. [Related: Students Had BDSM Sex. Male Says He Obeyed Safe Word. GMU Agreed, Expelled Him Anyway.]
The special examiner concluded that Doe's behavior constituted "sexual harassment, invasion of privacy, and sexual misconduct." Taken together, these thing constituted "sexual violence," according to the investigator.
Doe was not suspended, but Brandeis marked his permanent record. According to his transcript, he was found guilty of "serious sexual transgressions." Consider that for a moment: Brandeis decided that being overly affectionate toward one's boyfriend was a "serious" sexual transgression.
In reaching this verdict, the investigator made a number of suspicious logical leaps. For instance, J.C.'s alcoholism subsequent to the breakup was counted as evidence in his favor, because other victims of sexual assault have lapsed into similarly destructive behavior. Saylor was quite critical of this thinking. "Surely 'basic fairness' requires more than rote recitations of generalizations about the way some victims of sexual misconduct sometimes react," he wrote.
Indeed, Saylor was critical of virtually all aspects of the sexual assault adjudication process as mandated by the federal Office for Civil Rights. [Related: Male Student Had Drunken Sex with Female Non-Student. Her Dad Called It Rape. Expulsion Imminent.]
Brooklyn College History professor KC Johnson, an expert on these issues, hailed Saylor's ruling as "without a doubt, the strongest decision by any judge on campus due process since the Dear Colleague letter," which initiated the Education Department's recent wave of Title IX-based due-process suppression.
Saylor's decision merely holds that the lawsuit has enough merit to proceed: Doe has a reasonable claim that Brandeis violated its contractual promise of "basic fairness." The decision does not take a side in the actual misconduct case.
However, it's impossible not to peruse the details and see the folly of a mandatory affirmative consent policy. As The Washington Examiner's Ashe Schow points out:
So a couple in a committed relationship – even a married couple – would have to follow a strict question-and-answer process for the sex to be considered truly consensual. And that's negated if either party had been drinking. Further, there would be no way toprove the policy was followed unless it was videotaped, as the accusation would boil down to a he said/she said (in this case, a he said/he said) situation.
In a world where affirmative consent is a prerequisite for each and every conceivable sexual act, people who awaken their partners by kissing them are committing assault.