Amherst College expelled a male student who was accused of sexually assaulting a female student while he was blacked out. Again, while he was blacked out. The woman he allegedly assaulted was fully lucid.
How did that happen? It didn’t. The evidence overwhelmingly suggests that the male student did nothing wrong. If anyone committed sexual assault during their encounter, it was in fact the female student.
This is one of the few cases where we have an actually good idea of what happened the night in question. Doe accompanied the accuser (who was Doe's girlfriend's roommate) to her dorm room. The accuser performed oral sex on a blacked out Doe (Johnson notes that even the Amherst hearing found Doe's account of being blacked out "credible"). Doe leaves. The accuser then texted two people: First, a male student she had a crush on — whom she invited over after a heavily flirtatious exchange earlier in the evening. Then, a female friend.
The accuser said during her hearing that she only texted one friend to help her handle the assault as she felt "very alone and confused." But her texts with her female friend give no indication of an assault. Rather, the accuser texted her friend "Ohmygod I jus did something so fuckig stupid" [sic throughout]. She then proceeded to fret that she had done something wrong and her roommate would never talk to her again, because "it's pretty obvi I wasn't an innocent bystander."
She also complained that the other man, who had come over after the alleged assault, had taken until 5 in the morning to finally have sex with her.
The accuser found herself friendless after the encounter, when her roommate discovered what she had done.
Between the encounter with Doe and the accusation — nearly two years later — the accuser developed new friends. And as it happens, these new friends were all "victims' advocates."
After making those new friends, long after the incident, she accused John Doe of assaulting her. The adjudication process, as described by Johnson, was a Kafkaesque farce:
Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was “blacked out” during the oral sex, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Since AS [the female] said she withdrew consent at some point during the sexual act, and since Doe couldn’t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuser’s tale.
Keep in mind what happened here. John Doe was with his girlfriend’s roommate when he blacked out. She then performed oral sex on him. She immediately regretted it—not because Doe had done anything wrong, but because she had done something wrong. Yet he was expelled.
This outcome was obviously a gross miscarriage of justice. I think even the most staunchly pro-victim anti-rape activists would admit that (maybe). But it strikes me that this is exactly the kind of confounding verdict that a college is likely to reach when forced to adhere to the favored policies of the anti-rape activists: affirmative consent and preponderance of the evidence standards. When university administrators poorly trained in legal procedures are asked to determine whether it is more likely than not an accused student had obtained ongoing, enthusiastic, affirmative consent during a sexual encounter, they will invariably convict the innocent.
In a twisted sense, administrators were correct to find John Doe guilty. He was accused of sexual assault, and he couldn't prove the encounter was consensual. Imagine if he had accused her of sexual assault as well—the panel might very well have concluded that they raped each other.
We should expect to see more of this insanity, not less, when the federal government obligates college administrators to insert themselves in students’ sex lives.
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