https://www.dailywire.com/news/university-said-accuser-was-conflicting-and-unreliable-but-still-found-accused-student-guilty-a-court-just-overturned-the-schools-finding

A male student at Purchase College State University of New York sued after he was found responsible of sexual assault by his school despite the school also finding his accuser was “conflicting and unreliable.” On Wednesday, the New York Supreme Court ordered the school to set aside its finding, leading the way for the student to find justice.

On April 19, 2017, a student referred to in court documents as John Doe was in his dorm watching a movie with several other students. A female student, whom The Daily Wire will refer to as Jane (she’s referred to as “complainant” in court documents) was also in attendance. At some point, John decided to leave his dorm to attend a party elsewhere. At the time, Jane asked if she could remain in the dorm suite with other students, which John allowed. Later that night, John returned to his dorm, and Jane asked another student in the common room to leave so she could be alone with John. She then asked John if she could spend the night. John agreed, and provided Jane a pair of pajamas to change into before the two got into John’s bed together.

While this was going on, John’s roommate was asleep in his own bed just five feet away in the same room.

Once in bed together, John and Jane began kissing. Jane helped John remove her pants and John digitally penetrated Jane’s vagina. Jane asked John if he had a condom and the two engaged in sexual intercourse.

The next day, John contacted Jane, who would later tell school investigators that John contacted her as if nothing was wrong, indicating he should have known something was wrong even though she gave no indication she was upset the night before. Days after their encounter, Jane told University Police that John sexually assaulted her. Purchase’s Title IX investigator interviewed Jane, John, as well as other witnesses before charging John with violating the school’s Code of Conduct, particularly the portion that pertains to engaging in “any sexual act toward any individual without consent,” or “sexual intercourse with someone who is physically helpless, . . . unconscious, or otherwise incapacitated.”

John attempted to defend himself before an Administrative Hearing Board. At the hearing, Jane claimed that she never told John to stop or verbally communicated a lack of consent in anyway, but insisted she wasn’t capable of consenting to sexual activity because she was intoxicated and suffered from post-traumatic stress disorder, court documents say. How John was supposed to know about her alleged PTSD is not explained. Jane further claimed at the hearing that she did not verbally consent to sexual activity with John.

John testified that Jane did not appear intoxicated or incapacitated in any way and consented to sexual activity through her actions, which is allowed under New York’s affirmative consent law. As the court wrote in its ruling, student witnesses also testified before the hearing board, but their statements were deemed irrelevant for some reason (likely because they supported John’s side of the story).

The hearing board decided that Jane’s statements were “conflicting and unreliable as it pertained to her inability to give consent.” The board added that “[t]here were considerable gaps in the complainant’s memory,” and said it was “concerned that some of her statements after her initial report were tainted by reading the reports that were submitted by other witnesses and parties.”

Despite these findings, the hearing board determined that Jane consented to lying together in bed with John, kissing him, and removing her pants, but somehow did not consent to any further sexual activity.

John was suspended but appealed. The school’s appeal board confirmed the findings of the hearing even with the contradictions. So, John sued, and the case fell to New York’s Supreme Court (which, contrary to the name suggests, is not the highest court in the state).

As author and history professor K.C. Johnson noted on Twitter, the four judges of the Supreme Court panel during oral arguments questioned how Purchase had applied New York’s affirmative consent standard, asking “Are you suggesting that at every step along the way, he gets her to sign a little waiver, or say something?”

This has been the common critique of the policy, which states that students must obtain consent at every escalation of sexual activity through words or actions. In practice, schools have punished students after accusers claim they didn’t give constant consent, like a continuous question-and-answer session. As I have previously reported, there simply is no way for an accused student to prove they obtained affirmative consent under current, draconian policies.

The New York Supreme Court determined that Purchase’s decision to punish John “was not supported by substantial evidence.”

“Having rejected the complainant’s testimony that she was incapable of giving consent, the Hearing Board was not left with adequate evidence to support the conclusion that while the complainant consented to spending the night in the petitioner’s bed, kissing, and removing her pants, she did not consent to the remainder of the sexual activity. The Board indicated that its finding of nonconsensual conduct was based on the statements of the petitioner and the complainant ‘that clear, affirmative consent for these activities was not given.’ However, the petitioner, while freely admitting that he did not obtain verbal consent, clearly asserted that the complainant consented with her actions,” the court wrote (emphasis original).

The court found no specific testimony or statements that adequately supported the school’s decision that Jane was capable of consent but did not consent to the sexual activity with John.

Based on its finding, the court granted John’s petition to overturn Purchase’s determination that John violated the student Code of Conduct and sexually assaulted Jane, which also vacates the penalties imposed on him by the school. Further, the court directed Purchase “to expunge all references to that finding from the petitioner’s academic record.”

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