‘Incapacitation’ Policy at U of Michigan Fought

     DETROIT (CN) — Challenging his expulsion from the University of Michigan in a federal complaint, a former student says the school relied on an ambiguous policy that should distinguish between victims who are purportedly “incapacitated” rather than merely “intoxicated.”
     Filing suit under the pseudonym, John Doe says U of M forced him to withdraw on June 27, 2016, when he was just 13.5 credit hours short of his degree, carrying a 3.95 GPA.
     Though the school’s appeals board found that he violated its policy on student sexual misconduct, Doe says this finding relied on “an unconstitutionally vague or legally incorrect definition of the term ‘incapacitated.'”
     As described in the federal complaint filed on Sept. 1 in Michigan, the sexual encounter that got Doe expelled occurred in January 2016. The woman who says she was too incapacitated to have sex with Doe is described in the lawsuit only as “the complainant.”
     Doe says she had come with friends to a party he was hosting, and he does not know whether she had consumed alcohol prior to arriving.
     What Doe does know, according to the complaint, is that he served the woman a single shot of alcohol, and that had no “difficulty walking or talking.”
     Over the course of an hour, he says, they danced, kissed and proceeded to his room where they had sex.
     Doe says he had left the room to use the bathroom when either his roommate or his roommate’s guest turned on the lights at about 2 a.m., awaking the complainant.
     Though she “appeared emotionally distressed,” the student proceeded to send “very coherent” text messages to her friends throughout the early morning, Doe says.
     This evidence should have been critical, according to the complaint, to determining whether Doe’s accuser “was incapacitated at the time the sexual activity occurred, and if so, whether plaintiff knew or should have known of the incapacity at the time the sexual activity occurred.” (Emphasis in original.)
     Even the criminal defense attorney whom the school tapped to investigate the claims against Doe cleared him, according to the complaint.
     Doe says this investigator’s 41-page report says “the preponderance of evidence does not support the conclusion that the [Doe] engaged in unwanted touching of a sexual nature in violation of the policy.”
     She “determined that there is insufficient evidence to suggest [the complainant] was incapacitated and unable to provide valid consent at the time of the incident,” the complaint says.
     After the complainant challenged this April 15 report, with help from a law firm, an appeals board issued its decision against Doe on May 25.
     Doe says his predicament stems from the board’s reliance on a policy about incapacitation that was so vague, the school amended the policy on April 6, 2016.
     The former policy defined incapacitation as lacking “the physical and/or mental ability to make informed, rational judgments,” according to the complaint.
     “The policy did not explain the difference between ‘intoxicated’ and ‘incapacitated,’ nor did it provide information as to how a student could determine without outward signs, whether another student lacked the mental ability to make rational, informed judgments,” the complaint states.
     Doe says the new policy went into effect in July after his expulsion. It “explains that ‘incapacitation is a state beyond drunkenness or intoxication,” the complaint states.
     Claiming that the appeals board reversed against him based on “irrelevant” information, Doe notes that its report detailed the complainant’s inexperience with drinking and sexual encounters in high school.
     U of M officials named as defendants to the lawsuit have not returned emails seeking comment. The school itself is not named as a defendant. Instead the lawsuit takes aim at the members of the appeals board, including assistant dean David Baum, and two other school officials.

%d bloggers like this: