The Volokh Conspiracy
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Interesting New Title IX Sexual Assault Hearing / Sex Discrimination Opinion
"[P]laintiff has ... made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex ...."
From Doe v. Rensselaer Polytechnic Institute, decided today by Judge David N. Hurd (N.D.N.Y.):
The Court understands many of the impulses that may cause a school to favor women over men in the context this case presents. After all, claims of sexual assault like Roe's—and Doe's—are often difficult to prove. By their very nature, these claims typically involve a level of privacy that undercuts the availability of witnesses, to make no mention of the stigma that attaches so easily to sexual assault victims, the profound psychological trauma that inevitably follows sexual assault, or the age-old stereotypes that call listeners to disbelieve complainants—especially, historically speaking, women. Much work must be done to ensure that sexual predators are called to justice, and the Court does not shrink from that truth.
Instead, it is to this Court's grudging relief that its task is not to resolve the nettlesome question of how to properly create an environment such that women, who for far too long have been victimized by those stigmas and stereotypes, can feel secure enough to seek justice without allowing an accusation against a man to carry the day on its own. Rather, it is enough to say this: whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims.
As the facts now stand, Doe has made a showing sufficient to establish a reasonable likelihood that RPI has come down on the opposite side of that truth, no matter how dysphonic their chosen path may be when this Court attempts to harmonize it with plaintiff's rights under Title IX. As a result, plaintiff has also made a sufficient showing that defendant has threatened his academic future in violation of his rights to equal treatment regardless of his sex, a harm that damages cannot make whole.
Against Doe's protected rights, RPI's showing of the equities amounts to hollow portents of rampant sexual assault and the impermissible assumption that plaintiff is already guilty despite not having so much as a hearing on a matter of grave import to his future…. Accordingly, plaintiff's motion for a preliminary injunction must be granted. Defendant will be enjoined from proceeding in its hearing against plaintiff until its treatment of plaintiff has been tested and this case has run its course….
There's a lot that leads up to this conclusion, including the question whether the new Department of Education Title IX rules should be applied in this case; you can see it all in the full opinion. Here are the facts:
At all relevant points for this case, Doe has been a student at RPI. Plaintiff alleges he chose defendant because it has a high-ranking engineering pedigree and the various technological assets that ranking brings with it. However, plaintiff did not choose to live on defendant's campus, instead opting to live nearby in Troy, New York.
In November of 2019, Doe, a senior, and female RPI freshman Jane Roe ("Roe") met through the online dating application Tinder. Plaintiff and Roe spoke through varied electronic media periodically throughout the end of the Fall 2019 semester and over the winter break in advance of the Spring 2020 semester. Upon returning to Troy in advance of the Spring 2020 semester, plaintiff and Roe met in person and had consensual sex on multiple occasions in January of this year.
One morning after Roe had slept over at Doe's apartment, Roe alleges that she discovered that plaintiff had been using his cell phone to record video of her as she was dressing. Roe claims she was immediately disturbed by plaintiff's surreptitious filming, and asked a friend to pick her up from plaintiff's apartment. That friend then apparently confronted plaintiff about the video, and plaintiff reassured him that the video had been deleted from the phone.
Either late in the night of January 22 or early in the morning of January 23, 2020, Roe invited Doe to her dorm room again. Roe claims that she agreed to discuss with plaintiff her anger at his having filmed her, which was a conversation that she did not feel comfortable having at his off-campus apartment. Plaintiff alleges that he was too drunk to drive, so he walked to her residence hall and joined Roe in her room.
Once there, both plaintiff and Roe agree that plaintiff had multiple drinks of vodka. Plaintiff then alleges, and based on her own eventual Title IX complaint against him Roe does not disagree, that the two of them had consensual sex.
Roe and Doe's narratives of their encounter that night and morning diverge at approximately 3:00 a.m. To hear plaintiff tell it, Roe remained sober the entire night while she plied him with excessive amounts of alcohol. He alleges that Roe eventually began to pressure him to have sex with her again, but he refused because he had only brought one condom and did not want to have unprotected sex.
However, Doe eventually gave in and had sex with Roe again. Plaintiff claims that he remembers only pieces of this round of intercourse, but he claims to distinctly remember that Roe asked him to put his hands around her neck, even though this made him uncomfortable. Plaintiff eventually complied, if only briefly. Roe agrees that she requested that plaintiff put his hand on her neck and provide pressure, but she claims that this happened during their first, consensual encounter on that night.
Doe further alleges that Roe then began to pressure him into having anal intercourse with her. He also claims that eventually, despite his recurring protest that he did not wish to engage in intercourse without a condom, he had anal sex with Roe for about ten seconds" before stopping because he felt uncomfortable. Plaintiff claims that after he and Roe concluded their second intercourse, he needed to ask her to get him water because he was too drunk to get out of bed.
Roe agrees that Doe had trouble getting out of her bed at one point during the night of January 22. She also noted during an interview with a Title IX investigator that plaintiff had been "getting kind of weird" and that he informed her he was under the influence of "a couple substances," which caused him to act "different from usual."
The next morning, plaintiff left Roe's room because she needed to go to class.
Plaintiff alleges that the psychological damage from being pressured into sex with which he was not comfortable forced him to take a medical leave from school.
By contrast, Roe alleges in her Title IX complaint that after the initial consensual encounter, she and Doe began to argue. In the midst of this argument, she asserts that plaintiff again put his hand around her neck and squeezed—this time both in a non-sexual context and without her consent—which caused Roe to be afraid for her safety. She further alleges that between 3:00 a.m. and 5:00 a.m., plaintiff rubbed his penis against her back, buttocks, and legs without her consent. At her eventual interview with the Title IX investigator assigned to her case, Roe also said that she may have unwillingly engaged in sexual intercourse with plaintiff because she was afraid he would hurt her if she denied him and in the hope that if she complied he would just go to sleep and the encounter would be over.
But according to Roe, her compliance was not the end of it. At about 9:00 a.m. on January 23, 2020, Roe alleges that Doe again engaged in sexual activity with her without consent. Eventually, Roe complained to plaintiff that the sex was painful, at which point plaintiff apparently continued intercourse while asking her if she would like him to stop. Roe responded that she would, and plaintiff continued for a "couple more seconds longer" before stopping.
On January 27, 2020, Roe's resident advisor informed RPI that a sexual assault had allegedly taken place on January 23, 2020. On January 31, 2020, defendant notified Doe that it was initiating a Title IX investigation against him as a result of that incident. On June 9, 2020, plaintiff filed his own Title IX complaint against Roe, alleging that he was too intoxicated to consent to sexual activity on the night of January 23. Roe was interviewed by a Title IX investigator concerning her own complaint on February 3, 2020, and interviewed again concerning plaintiff's complaint on July 17, 2020.
On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school's August 24, 2018 Student Sexual Misconduct Policy ("the 2018 policy") by sexually assaulting Roe. As was his right, plaintiff requested a hearing to challenge the initial finding that plaintiff had violated defendant's sexual misconduct policy. That same day, defendant dismissed plaintiff's Title IX complaint against Roe, finding that he had failed to establish his allegations by the same standard.
In particular, RPI found that Doe's participation in complex conversation, recall of details, ability to leave and re-enter Roe's residence hall at 2:30 a.m. to smoke, and his failure to prove that he did not willingly consume alcohol or initiate sexual activity with Roe made his complaint insufficiently credible. In fact, plaintiff was recorded on a campus security camera leaving the residence hall at 2:30 a.m., and according to defendant his gait appeared steady on the captured footage, although plaintiff paused while climbing the stairs for an unknown reason.
Doe timely appealed RPI's determination on August 11, 2020, requesting a hearing as to his claim's dismissal. In particular, he argued that defendant: (1) overlooked facts in Roe's July 17, 2020 interview establishing that he had consumed alcohol and smoked marijuana before arriving at Roe's dorm, drank vodka "many times" while in her room, and "had trouble getting off" Roe's bed; (2) erroneously relied on the irrelevant determination that there was insufficient evidence that plaintiff was supplied alcohol against his will; and (3) erroneously relied on the irrelevant determination that plaintiff failed to prove he did not initiate sexual activity. Defendant denied plaintiff's appeal on August 25, 2020, claiming that plaintiff had failed to demonstrate an error in the denial that would merit a hearing….
