Title IX

Two Students Hooked Up. It Was Clearly Consensual. He Still Spent $12,000 Defending Himself.

A brief romantic encounter at UC-Davis triggered a Title IX investigation after the female student changed her mind about it weeks later.


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James, a freshman at the University of California-Davis, was on his way to math class when he received an email that would derail his life for the next few months: The university's Title IX office, which handles sexual misconduct disputes between students, was investigating a complaint against him.

This was in February 2018, at a time of heightened public attention to the problem of predatory men taking advantage of vulnerable women. Journalists had exposed Harvey Weinstein, Al Franken, Louis C.K., Kevin Spacey, Roy Moore, and others for committing a variety of sexual misdeeds.

"This was not a good time to get accused of something like this," James tells Reason.

The email from the Title IX compliance officer went into great detail about the seriousness of James's situation. He would be investigated in accordance with the university's sexual assault and sexual violence policies, as well as the student code, which covers physical assault, threats of violence, and conduct that threatens health and safety. A finding of responsibility could result in suspension, or even expulsion.

But the email was short on details of the alleged misconduct. According to the Title IX office, a female student, Becky, had complained that James touched her "on her breasts and buttocks over and under her clothing without her consent." (I am using pseudonyms for both James and Becky.)

James knew Becky. They had been classmates in a drama class, and, very briefly, friends. On the evening of October 20, 2017, they had met up with some other friends to play music. Eventually finding themselves alone in Becky's dorm room, they kissed for a few minutes—and engaged in some light sexual touching—before other students interrupted them.

In James's view, the encounter had not only been fully consensual, it was also mutual: Becky bore just as much responsibility for initiating it as James. And, as Becky would later make clear to the investigator, she had also touched him sexually—she explicitly described her own actions in her official statement.

"[Becky's] account of the incident as set forth in the summary of her investigative interviews does not, on its face, allege any 'act of Prohibited Conduct,'" James's attorney wrote in an April 11 letter to Wendi Delmendo, UC-Davis's Title IX coordinator. "Even if everything [Becky] alleges is true, my client clearly did nothing wrong and did not engage in Prohibited Conduct."

And yet the investigation continued until May 1—at which point the Office of Student and Judiciary Affairs finally concluded that James was innocent. Even so, Becky was afforded the opportunity to appeal the decision, consistent with university policy as dictated by the Obama administration's Education Department, which had obligated college administrators to give accusers the option of appealing adverse findings if they granted this right to the accused.

I've covered dozens of Title IX cases involving dubious sexual misconduct allegations, unfair adjudicatory procedures, and life-ruining consequences for the young men involved. James's situation is different: He was cleared, and is now enjoying his sophomore year at UC-Davis. In some sense, the process worked.

Even so, James had to spend most of a semester fearful that his life as he knew it was about to end—that his name would become synonymous with the evil men of #MeToo. He had to recount the intimate details of an amorous encounter to university administrators, a lawyer, and his parents. And his family shelled out $12,000 in legal fees.

"We're not a rich family, so that made a sizeable debt," says James. "Tuition for UC-Davis is around $16,000 a year. This was almost another year of college."

This was the cost of successfully defending against a sexual misconduct allegation that wasn't even really an allegation of sexual misconduct.

"The joke around here is everybody goes to UC-Davis because they got rejected from Berkeley," James says. "But really what drew me to Davis is I have a decent amount of family in the area. I've warmed up to the campus."

James is a California native. His mother is an immigrant from Asia, and his father is a native-born American. He had a long-term girlfriend for two and a half years during high school, but they broke up when he went away to college.

In a lengthy interview, James shared the story of his encounter with Becky and the subsequent Title IX investigation. I also reviewed UC-Davis's 130-page report on the incident, and all relevant text messages the two students exchanged. (They were included in the report.) To avoid causing Becky to take any further action against James, I did not reach out to her for comment, though her summary of what transpired is included in the report. Becky and James largely agree on what happened, according to the report, and their recollections barely diverge.

James and Becky were enrolled in the same acting class, and they enjoyed performing in scenes together. On October 19, they began exchanging text messages, and agreed to meet outside the classroom. Becky promptly steered the conversation in the direction of sex: She told James about a safe sex information session being hosted in her dormitory building. She proposed "condoms and dental dams" as two of the things that might be discussed. She then explained the function of a dental dam to James.

At dinner, the two continued to discuss sex: how they had lost their virginity, previous relationships, and what kinds of things they enjoyed. Eventually, James accompanied Becky to the safe sex informational session, but Becky's other friends were there. Feeling out of the loop, he left.

The next day, they attended an improv show together with some mutual friends. For a group of musically inclined students who had met in an acting class, it was a fun night.

"We're all improv comedy acting students, so we were amped," says James.

Afterward, they headed back to a commons area in Becky's dormitory building—a group of 10 people or so—to play music. James played the guitar; Becky played bass guitar and cello. This went on until midnight, at which point James helped Becky carry her instruments back to her room. She showed him around, and instead of rejoining the group, they started chatting.

"We keep talking for maybe 5 minutes, turns into 6, turns into 7, 8 minutes," he says. "I didn't want to leave, and I don't think she wanted to leave."

The conversation came to a halt and, according to James, Becky leaned in as if she wanted to kiss him. He met her halfway, and they kissed.

According to Becky's complaint, the kissing followed a night of mutual "flirting" and started out "romantic." Eventually, she either asked James to close the door or closed it herself. They continued kissing, and also touching, as they grinded against each other.

"I had my hands on her back, and I was like, 'Wow, we're starting to get frisky,'" says James. "My hands start making my way up her back, slowly, respectfully, testing the waters."

James opened his eyes to make sure Becky was enjoying what was happening. She seemed "into it," and so he touched her breasts and her butt, over her clothes. James removed his shirt, and, according to Becky's account, she told him to drop it on the floor.

Becky was wearing a jumpsuit over a crop top. According to her statement to the investigator, she told James he could unbutton it, "since it seemed like that's what he wanted." Becky admitted that her hands were on James's back and that she touched his butt as well, because "if he's doing it, I can do it too." The report noted that she did not explicitly ask James whether she could do this: "Complainant said during the interview she did not have a conversation with Respondent about touching his buttocks."

At one point, James became too forceful—he was grinding against her, and she was pressed against a closet door. Becky asked James to be more gentle. He agreed, and toned down the grinding, Becky told the investigator.

Becky admitted she kissed James's neck but didn't think she gave him a hickey. She did, however, ask him whether he was into "nipple stuff," and touch his nipples intimately when he responded affirmatively. According to Becky, James gave her several hickeys. She was initially "aroused" by this.

The encounter ended when they heard Becky's roommate coming down the hall. James quickly put his shirt back on, and left the dorm.

Becky started to feel self-conscious about the hickeys after her roommate pointed them out. According to the report, she said, "I thought I enjoyed it, but I don't think I really did."

But James was unaware that Becky had begun to recontextualize what had just happened. Around 1:00 a.m., Becky texted James that she would like to clarify things between them. James was still in the neighborhood—he had been comforting a friend who was feeling out of sorts—and returned to meet Becky inside a bathroom.

She quickly asked him what he thought had "happened back there." James said that he thought he had made out with a "cool girl from my drama class."

Becky said she was getting a friends-with-benefits vibe from James, and he readily agreed. They then proceeded to discuss the terms of such a relationship: They agreed to keep it secret from their other drama class friends, and not to have penetrative sex or oral sex—it was Becky's preference that they stick to "hand stuff." And they discussed getting James's roommates to leave so that they could have some private time.

"I thought she still wanted to see me," says James.

But one thing caught James off guard: Becky told him that he should have asked, explicitly and verbally, before touching her breasts or butt. James apologized, and promised to do so next time. They parted ways on what James thought were good terms—he asked if he could give her a small kiss goodbye, she said yes, and he did so.

The next day—Saturday—Becky cancelled their plans to meet, claiming she was sick. On Monday, she sent him a we-need-to-talk text. At that point, James had a feeling she was going to break it off.

"I biked over to the dorms," recalls James. "I see her, she's dressed in all black, black sunglasses, black shoes. She says 'Let's go for a walk.'"

James was right to be worried. In the two days since their last meeting, Becky's feelings about the encounter had "shifted," according to the report. She told investigators that her mother noticed the hickeys while they were video chatting—the hickeys made her feel "disgusted" because it was as if James had been "marking me as his own," she said. Becky's mother agreed with her that she should break things off with James. "You were definitely violated," said Becky's mother, according to the report.

During their Monday meeting, Becky told James that her last boyfriend was emotionally abusive, and she just wasn't ready for another relationship—even a friends-with-benefits one. James told her he understood, and asked whether they could still be friends.

Then Becky said something that worried him: She again accused him of touching her without consent. Further, Becky revealed that she had already spoken with their drama teacher and asked not to be paired with James in activities.

"At this point I feel like I'm being accused," he says. "I think she told the drama teacher she'd been sexually abused by me." (Indeed, according to the report, Becky had emailed their drama teacher to say that James had made her feel uncomfortable "in a sexual context.")

Becky then asked James whether he knew something was wrong. James replied that he indeed suspected something was amiss, thinking she was referring to the status of their relationship. But she was evidently asking whether he knew something was wrong with touching her that way—and thus she took his response as a kind of confession.

James left this meeting feeling terrible. But he did his best to avoid Becky for the rest of the semester, and went out of his away to avoid making eye contact, or being too close to her in class.

In January, James was at the gym when he accidentally crossed gazes with a familiar face: Becky. Not wanting to make it awkward, he "pointed at her in a friendly way."

"That's a universal gesture right?" he said. "Like, hey there? I just kind of pointed at her and gave her a smile and then rushed out of the building."

A week later, he received an email from the university instructing him that he was forbidden from having contact with Becky. A few days after that, he obtained notice of the Title IX investigation as he was on his way to calculus. He sat through math class "scared out of my mind," then went home and lay down.

It wasn't easy for James to tell his parents that the university was investigating him for sexual misconduct. He began by calling his dad and telling him the whole story over the phone. He said he wasn't sure if he should get a lawyer—he was worried getting a lawyer would make it look like he needed a lawyer.

His dad laughed, James recalled, and said, very grimly, "Well, that's because you do need a lawyer."

Mom reacted less well. James met both his parents at a restaurant. The first thing she said to him was, "You couldn't keep it in your fucking pants?"

"I think she was just fearful," he says.

James' family found him an attorney, who listened to James story and then told him, "If everything goes south on us, don't kill yourself." The attorney promised to do everything he could to get justice for James.

In the weeks that followed, James and Becky both gave statements to the Title IX investigator. The investigator also spoke with Becky's roommate, the drama teacher, and other associates of Becky and James who had some knowledge of what had transpired. It was an uncertain and lonely time for James, who was reluctant to tell anyone else what he was going through. He was worried people would assume he was guilty. One day, he noticed a poster in a dorm building that discussed what to do in cases of sexual abuse. The very first suggestion? Believe the victim.

"If you're in polite conversation with someone and they say, 'Remember, believe the victim,' you can't just say, 'I don't know, there should be some sort of investigation process,'" says James. "You'd get crucified for that."

Eventually, in early April, James and Becky were given the opportunity to review each other's statements. James received good news: In the opinion of his attorney, the case was at this point open and shut. Becky had not actually alleged any wrongdoing on James' part—despite later feeling uncomfortable about the encounter, she had given plenty of indication at the time that she had consented to what James was doing.

"My lawyer told me her statement might be better for me than for her," remembers James.

On April 11, James' attorney fired off a letter to UC-Davis demanding an immediate end to the investigation. "Even taking everything [Becky] alleges in her account as true, no reasonable person could harbor even a suspicion that my client acted improperly, let alone that he violated any university policy," wrote the attorney. "It is an outrage that the University is subjecting my client to an investigation under these circumstances."

University administrators countered that they were obliged to see the matter through to the end. But according to the University of California system's sexual harassment policy, administrators should make an initial assessment of a report's seriousness "as soon as practicable."

"If the university continues this baseless investigation, it will cause my client additional harm and expense," wrote the attorney.

By April 26, the investigator had finished the report, and to James' relief it recommended that he be found "not responsible," on the basis that Becky had indicated consent during the encounter. But it was still up to the director of judicial affairs, Donald Dudley, to decide whether to accept this recommendation. The investigator compiles a report, and the director makes the determination—that's UC-Davis's Title IX process, a kind of single-investigator model that has become an increasingly popular type of sexual misconduct adjudication on campuses. This circumstance concerned James' attorney, because even if Dudley accepted the recommendation, Becky would have the opportunity to appeal it, potentially dragging out the process for months.

A few days later, on May 1, James received word from Dudley that the recommendation had been accepted: He was cleared. And luckily for James, Becky never appealed the decision, which meant that the ordeal was all over. He was elated, and in the months since the outcome he has been able to move on with his life.

In the end, the investigation served James well: He was rightly found innocent. But if this was an example of the process working, it's quite a curious one. University administrators spent weeks investigating the matter. It cost James' family thousands of dollars. And it caused James tremendous emotional stress.

There's little doubt that the #MeToo movement has accomplished much good, or that sexual misconduct is a serious problem—in Hollywood, in politics, in the media, in the workplace, and on college campuses. The bitter confirmation fight over Brett Kavanaugh's nomination to the Supreme Court, marred by accusations of sexual assault and harassment against him, shows that we haven't come close to figuring out the right balance between respect for victims and fairness for alleged perpetrators. It's certainly the case that a lot of powerful men are still getting away with terrible behavior, but we have also seen plenty of public lynchings of men whose failures seemed far less serious or obvious. Jezebel recently called for the #MeToo movement to boldly wade into "the gray areas"—encounters that are problematic but fall short of actionable sexual assault. I wonder if that would mean encouraging more women like Becky to see themelves as victims and behave accordingly.

In the midst of the Kavanaugh battle, President Donald Trump remarked that it was a "very scary time for young men in America," which drew indignant scoffs from the left. The president's interest in due process and the presumption of innocence is, as always, highly selective. But this doesn't mean Trump's critics should completely reject the sentiment. There are many victims of sexual mistreatment, but there are victims of bad-faith accusations as well. James was lucky to get through his "very scary time" unscathed, and those who carry the banner of #MeToo should denounce excesses and overreaches like the one he experienced.