Texas Student Says Consensual Sex Got Him Suspended

AUSTIN, Texas (CN) — A University of Texas student claims that after he was cleared of sexual-assault allegations by a female student, the university president reversed the decision because of a new policy that allows people to retroactively withdraw consent for sex if they were intoxicated.

John Doe sued the University of Texas at Austin and its president, Dr. Gregory Fenves, in Austin federal court on Monday, alleging sex discrimination and due process violations.

Doe, an undergraduate student at the university, says that on April 16, 2016, a woman referred to in the lawsuit as Jane Roe went to his apartment near the UT campus following her sorority’s year-end formal party.

Doe asked Roe if she wanted to have sex, and she allegedly said yes.

“A few days later, Jane decided that she had been too intoxicated to make a good decision about whether or not she wanted to have sex with John that night,” the 38-page complaint states.

Roe then allegedly went to the university’s Title IX office and accused Doe of raping her.

“In doing so, she attempted to retroactively withdraw the consent she had freely given the night she and John were together,” he says.

Doe claims the Title IX investigation revealed these undisputed facts: Roe gave him affirmative verbal consent to have sex; she was never unconscious during sex; and no use of force or violence was involved.

UT’s investigation also found that Roe drank about five cups of sangria during a pre-formal boat party she attended with Doe on Lake Austin, according to the complaint, and she did not consume any more alcohol that night following the pre-formal party.

Roe and Doe arrived at her sorority formal two hours after the boat party and stayed there for an hour and a half, and then took a bus back to her sorority house and spent another hour there, investigators reportedly found.

Doe then asked Roe if she wanted to go back to his apartment and she said she did, the complaint states, so they walked to his apartment from the sorority house. They both believed they were intoxicated, the investigation found.

Doe and Roe then allegedly had consensual sex at his apartment, and she slept the rest of the night in his bedroom.

The ultimate issue is whether or not she was “incapacitated” while in Doe’s bedroom that night, according to the complaint.

The lawsuit says that investigators found there was sufficient evidence to believe Roe was incapacitated, and therefore reason to believe her consent was void.

But at Doe’s disciplinary hearing, the hearing officer expressed doubt as to Roe’s credibility regarding what she claimed to remember from the night, he says. The hearing officer also found inconsistencies in her testimony about consent.

A footnote in the complaint notes that one of Roe’s friends also doubted her credibility, allegedly telling investigators, “I think she might have been using being drunk as an excuse.”

“Ultimately, the hearing officer determined as to the incapacitation of Jane: ‘the complainant made rational decisions throughout much of the evening prior to and after the sexual intercourse. These facts do not support her claim that she was incapacitated according to the definition as provided by [the university investigator],’” the lawsuit states.

Roe then appealed the hearing officer’s decision to UT President Fenves.

On April 12 of this year, Fenves reversed the hearing officer’s findings and determined that because Roe was intoxicated when she gave affirmative verbal consent to sex, Doe was responsible for raping her, according to the complaint.

Doe says he was suspended for five semesters, which equates to two calendar years.

He claims that the university’s appeal process improperly gives Fenves “unfettered discretion” that does not ensure fairness. He also alleges that Fenves reversed the earlier decision in the interest of political correctness.

“Namely, the president may (and did in this case) reverse a hearing outcome when the hearing outcome, although correct, did not advance the university’s goal of being on the forefront of the national movement against on-campus sexual assault,” the complaint states. “In addition, it allowed President Fenves, in this case, to overturn an independent arbitrators ruling that had gone against the daughter of a wealthy university donor.” (Parentheses in original.)

Doe also says that Fenves’ ruling went against prior UT policy on sexual assault.

“In finding against the plaintiff and in favor of the daughter of a donor, President Fenves unilaterally changed the definition of who could consent to sexual activity in a way which ignored UT’s own prior policy that ‘Yes Means Yes,’” the lawsuit states.

The complaint continues, “It also ignored the definition used in [a] sexual assault survey that President Fenves championed just days before…That study defined incapacitation as ‘when [a person is] too drunk or high to know what they are doing, or to control their behavior or to provide consent.’ A much higher and more reasonable standard than the one President Fenves suddenly announced.”

Doe claims that Fenves’ biases and conflicts of interest were the main factor in his decision to reverse the hearing officer’s findings, because Roe’s father had allegedly donated “significant sums” within one month of her allegations.

“President Fenves has a conflict of interest in deciding Title IX appeals generally, but especially when a donor’s child is involved because of his potential bias towards donors and his role as a fundraiser,” the complaint says.

Doe alleges that Fenves was also protecting the university’s reputation by reversing the earlier decision against Roe “because he believed the complaining witness was likely to file a lawsuit if the university did not decide her way.”

Fenves was also biased against Doe because of the university’s interest in maintaining federal funding, he claims.

“Maintaining a ‘tough-on-sexual-assault’ appearance protects the university from ‘huge potential’ federal funding penalties that can be enacted by federal officials,” the lawsuit states.

Doe says UT’s sexual-misconduct policy is to blame because it is unconstitutionally vague as to the definition of the term “incapacitation.” He claims that at his own hearing, the investigator was unable to give a coherent definition of the word.

“If the person investigating claims of incapacity is not qualified to determine when someone is or is not incapacitated, who is? … The rule can be enforced with complete and arbitrary discretion because its terms are so vague,” the complaint states.

The university’s enforcement of this policy has threatened Doe’s career opportunities and reputation, he says.

A media relations spokesperson for UT said it does not comment on student disciplinary issues due to federal privacy laws, but added, “Our policies and procedures in such cases are followed and applied with care and diligence at all levels, including appeals to the president during which he makes decisions only based upon the record in the case.”

Doe seeks an unspecified amount of damages for claims of sex discrimination and due process and Title IX violations. He also wants an injunction stopping UT and Fenves from enforcing his suspension.

He is represented by Brian Roark of Botsford & Roark in Austin.

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