Cornell Suspended Male Student for ‘Clearly Consensual’ Sex, Lawsuit Claims

cornellLast week an expelled male student filed a lawsuit against Cornell, claiming the University erred in its decision to expel him for what was "clearly consensual" sex, reports the Ithaca Voice. The male student, a senior at the time of his expulsion and who is referred to as John Doe in the lawsuit, was suspended in May 2014 after being found guilty of sexual misconduct during a sexual encounter with a female student, referred to as Jane Doe, in December 2013. Despite the expulsion, the Ithaca Voice reports there is "no indication criminal charges were ever pursued."

From the Ithaca Voice article:

“In a 53-page complaint, the student’s attorneys launch a wide-ranging critique of both Cornell’s handling of the specific case and the overall framework of the university’s judicial system.

The lawsuit also assails the university’s decision in 2013 to lower the burden of proof for sexual assault cases from a “clear and convincing” standard of evidence to the much-lower “preponderance” standard of evidence.

But Cornell failed to administer even this lower standard of evidence fairly, the lawsuit contends.

“Cornell has created an environment where an accused male student is fundamentally denied due process by being prosecuted through the conduct process under a presumption of guilt,” the lawsuit states.

“By allowing the (Judicial Office) to take on the role of ‘judge, jury and executioner,” there were no safeguards or checks and balances in place along the way to ensure that the JA’s ultimate conclusion was objective and sound.”

A Cornell spokesperson said in a statement that the university does not comment on ongoing litigation.”

In a 2012 Cornell Daily Sun article, Judicial Administrator Mary Beth Grant J.D. ’88, who was involved in the investigation concerning John Doe, was quoted saying, “Lowering the burden of proof for sexual assault cases will encourage more victims of sexual violence to file complaints.” In a Sun article published last March, students and administrators across the University lauded the large increase in reported sexual assault at the University, citing the relaxed evidence and proof burdens. The article failed to explain, however, what these relaxed standards had to do with the reporting of alleged crimes.

Legal Insurrection likened this lawsuit to other high-profile “consent wars” cases at other universities, and provided text from the lawsuit’s Motion to Proceed Under Pseudonym:

“Plaintiff, Jane Doe and Witnesses L.T., M.N., M.V. and V.P. remained in Jane Doe’s apartment for approximately twenty-five minutes. They engaged in conversation in Jane Doe’s kitchen, discussing various topics such as their previous sexual experiences. The Witnesses indicated that no member of the group appeared overly intoxicated, to the point of being incapacitated.

At some point during the conversation, Jane Doe removed her bra from under her shirt, in front of the whole group. As she did this, she motioned toward Plaintiff and moved closer to him….

Due to the cold weather and the distance to Plaintiff’s apartment, Jane Doe agreed to let Plaintiff spend the night at her apartment. Jane Doe did not have a couch so it was understood that Plaintiff would sleep in her bed with her. She attributed this hospitality to her German family’s alleged “sailboat community ideals.”

After M.N., M.V., L.T. and V.P. departed, Plaintiff informed Jane Doe that he was interested in her. Plaintiff and Jane Doe began to kiss while standing up. The kissing continued as they moved towards the bed….

Plaintiff and Jane Doe engaged in sexual activity for approximately one hour. Both Plaintiff and Jane Doe were awake and coherent at all times during the sexual activity, communicating non-verbally by touching, stroking and kissing each other.

Jane Doe demonstrated her consent through both words and actions, by actively participating in the sexual activity, stating her willingness to engage in sexual activities up to a certain point, manually manipulating Plaintiff’s penis, removing her own clothing and underwear and continuing to kiss and touch Plaintiff throughout the sexual encounter.

Plaintiff and Jane Doe fell asleep together in Jane Doe’s bed and woke up later that morning around 8:30 a.m. when an alarm clock went off….

The relationship between Plaintiff and Jane Doe did not change after the Incident, as they continued to attend the same classes, sit nearby each other and complete their finals for the winter semester.

On February 18, 2014, more than two (2) months after the sexual encounter, Jane Doe filed a complaint against Plaintiff, alleging that Plaintiff raped Jane Doe on December 14, 2013, while she was incapacitated. A temporary no contact order was put in place on February 24, 2014 and an investigation commenced.”

The Motion includes Cornell’s alleged procedural violations in its extra-judicial investigative process:

“A non-exhaustive list of Cornell’s wrongful actions throughout Plaintiff’s disciplinary process include the following: (i) Cornell failed to conduct a timely investigation of the allegations and failed to timely bring the case to a close within sixty (60) days while requiring Plaintiff’s compliance with same; (ii) Cornell failed to conduct a thorough and impartial investigation; (iii) Cornell employed a single-investigator model which resulted in a lack of due process for Plaintiff; (iv) Cornell purported to perform a Blood Alcohol Content analysis to form conclusions that were unsupported and highly prejudicial; (v) Cornell engaged in an investigation biased against the male accused; (vi) Cornell wholly adopted Jane Doe’s unsupportable theory of “sailboat community values” as evidence; (vii) Cornell relied on an investigation consisting of a skewed rendition of the facts, cherry-picked witness statements and ignored important qualifying statements; (viii) Cornell made assessments of credibility and evidentiary weight with respect to each fact witness without any ascertainable rationale or logic; (ix) Cornell failed to afford Plaintiff the requisite presumption of innocence required by a disproportionate in light of the circumstances, all of which demonstrated substantial procedural errors in violation of Title IX.”

I wonder if Skorton, Grant, and company foresaw something like this happening when they crafted campus sexual assault policy around the cries of rape culture-proponents rather than adhere to the wisdom of the U.S. Constitution and common law? Did no one in Cornell’s multiple Ivory Towers of Infinite Wisdom foresee the possibility that actual courts might challenge the school’s kangaroo courts?

Even if the prevailing atmosphere on this campus or any other campus is one hostile to sexual assault victims, it makes no sense to warp the judicial system in an attempt to compensate for it. The judicial system is not the problem–the problem is a combination of (mostly) male attitudes that justify or glorify sexual misconduct and of (mostly) female attitudes that whip campuses into a frenzy rather than seek peace and justice.

For example, though it is fundamentally true that efforts to decrease the prevalence of campus rape should focus on removing the impetus to rape from would-be perpetrators, it is fanciful and dangerous to blindly believe in that and ignore the necessary role of rape prevention education. Men and women self-consumed with detoxifying themselves of rape culture are less helpful in detecting, evading, and subduing sexual assault than those trained in these areas.

With whom would you rather walk the streets at night: a pajama boy who screams down the “patriarchy” day-in and day-out or a guy who makes the occasional blue comment about women but will kick the tar out of anyone who tries to do anything improper with a female friend? Maybe the second guy shouldn’t make those blue comments, but maybe, also, the first guy should concern himself more with protecting himself and others than with trivial nonsense.

The original pajama boy

When victims tell stories of how police and administrators turned them away with their initial reports of sexual assault, we recognize how wrong that is. If a story is credible and is received within a reasonable time after the alleged incident, criminal justice forces should investigate it thoroughly. There is no reason to think, however, that lowering the standards of evidence and proof, secret tribunals, policies forbidding legal counsel, and other perversions of the American legal system are any justified remedy. The goal here should be to remove any and all stigma from reporting actual cases of sexual assault and reluctance on the part of the authorities to investigate the matters. The goal should not be the side-stepping of legal procedures meant to safe guard the accused and provide sound legal basis for the accuser.

One explanation for the sorry state of the “consent wars” is the fact that administrators are inserting themselves in criminal justice and legal proceedings. Shouldn’t police handle the evidence collection, and shouldn’t lawyers and judges handle the criminal litigation if necessary?

You see, this actually works against sexual assault victims. The series of bogus rape stories and due process lawsuits at universities across the country are making a large group of the population more reluctant to hear out sexual assault victims and victim advocates. It’s getting to the point to where the cries of wolf are drowning out the legitimate cases, or the ones that will happen here or elsewhere. The gut reaction of questioning the accuser’s genuineness stems not from an inherent bias against females and/or victims, but from the experience of hearing, time and time again, of bogus stories carried on by shoddy legal proceedings.

If you truly stand for creating safer environments for female students and all potential victims of sexual assault on college campuses, you will stand for both rape prevention education and rock-solid legal frameworks that operate outside of the university’s bureaucracy.