Occidental Justice: The Disastrous Fallout When Drunk Sex Meets Academic Bureaucracy

On September 7, 2013, two freshmen were gearing up for their third Saturday night at Occidental College. The small liberal-arts school in the Eagle Rock section of Los Angeles was just beginning its fall term, and after an unseasonably warm day that ran well into the 90s, the campus settled into one of those clear 70-degree nights that people plan their retirements around. In the southeastern corner of campus, under the red tile roof of Braun Hall, the hours ahead offered nothing but possibility.

The one freshman, John, eighteen years old and a slim six one, was good and drunk by sundown. He'd started drinking earlier in the day as part of a freshman-jock initiation. Shots, chugging, stupid human tricks—bonding and hallowed ritual to some, hazing to others—left him too drunk to finish the initiation, and around 11:00 P.M. a teammate escorted him back to the second floor of Braun. He would later describe that night as the drunkest he's ever been, and a neighbor from down the hall would describe his level of intoxication as a "shitshow." He was "slurring his words, stumbling over the others when he got up." That kind of drunk.

The other freshman, Jane, one month shy of her eighteenth birthday and a mere five feet two inches tall, was rebounding from the previous night's hangover by shooting vodka and sipping screwdrivers at a small gathering in a friend's room. Around 10:15, she and some friends went looking for a party off campus, but once her preparty buzz turned into full-blown, falling-down drunkenness, she parted ways with the group and started to make her way back to her room on the third floor of Braun. One of the friends who helped get her back to the dorm would later say Jane had a hard time walking and, upon seeing a resident advisor, said, "I have to act normal." That kind of drunk.

Once inside the dorm, Jane ran into John's roommate, who told her that John was having a little dance party in their room. Her interest piqued, she went into the room, and by the time John's roommate caught up with her a few seconds later, John and Jane were embracing. The roommate promptly left John and Jane alone, and minutes later, two of Jane's friends who'd been with her earlier in the evening came in to check on her. One of them would later describe the ensuing half hour as Jane "trying to kiss John and dance with him … and John trying to get [the two friends] to leave." That friend also said that "Jane was grabbing John and trying to kiss him… . John was 'somewhat' responsive … but 'also seemed pretty indifferent' to Jane's advances. [The friend] observed that John was 'not at all going for her … it was not like he was grabbing her and pulling her onto the bed.' " Eventually, according to Jane's other friend in the room, "John and Jane laid down together on John's bed, with Jane on top of John … 'getting really physical' … [with Jane] 'kind of riding on top of John. Her hips were moving… . It looked like something sexual was going down.' " Her two friends convinced Jane it was time to go home, but not before she gave John her number. (The college would later commission an inquiry into the events of the night, with two independent investigators interviewing witnesses and summarizing their statements—and in some instances quoting them directly—in an official report. All observations attributed to witnesses in this story, as well as texts cited, are taken from that report.)

The two friends got her back to her room, put her to bed, and left. It was 12:31 A.M., and she got a text.

JOHN: The second that you're away from them, come back

JANE: Okay

JOHN: Get the fuck back here.

JANE: They're still with me o

JOHN: Make them leave. Tell them yoy want to sleep. I'dc. [I don't care.] Just get back here

JANE: Okay do you have a condom

JOHN: Yes.

JANE: Good give me two minutes

JOHN: Come here.

JANE: Coming

JOHN: Good girl.

JOHN: Knock when you're here

Seemingly aware of what was coming next, Jane texted a friend "I'm wasted" and "I'mgoingtohave sex now," and while she made her way down to John's room, she vomited in a trash can in the hallway before making it to the men's bathroom and, finally, John's room.

Later, John would say he remembers few specifics about the following hour, including the 12:39 A.M. text he sent to his roommate instructing him to "stay the fuck out of our room." He also put a piece of paper in the slot for the key card to the room, the millennial equivalent of the sock on the doorknob.

Jane would say that she doesn't remember much either, except for when she told John she'd just thrown up and needed a piece of gum; and when she asked him again if he had a condom; and when she performed oral sex on him; and when John told her that his roommate had just walked in on them having sex. (His roommate would later tell investigators that, based on what he was told to look out for during the sexual-assault-prevention training he received during orientation, what he saw when he walked in the room didn't look like sexual assault.) Later, when John went down the hall to use the restroom, a neighbor from down the hall knocked on John's door to check on Jane. According to the investigators' report, "He asked if she was okay. Jane responded, 'yeah.' [He] said he asked, 'Are you sure?' Jane replied, 'Yeah, I'm fine.' [He] said he asked Jane Doe a third time if she was okay, and she answered that she was." While the neighbor would also say that Jane answered "kind of unconvincingly" and she sounded "kind of sad," he said he "took her word for it." (Jane told investigators that she also remembers this exchange.) John returned from the rest room, and thirty minutes later Jane left his room.

At 1:57 A.M., John texted his roommate, "Our room is free, go back any time," and twenty minutes later Jane sent the following text message to two friends:

:)

John would later learn that he finished the night by talking to a female friend for a few minutes—about what he does not recall—and going to sleep. Jane, meanwhile, went back to her room, where, her roommate would later say, she "was not making sense, was slurring her words, could not unbutton her clothing… ." However, when Jane's roommate went to take a shower, Jane got out of bed and made her way to the common room in another dorm. Her roommate eventually found her in her pajamas, "sitting on a couch on some guy's lap," as her roommate put it, and joking about Nascar. Her roommate got her out of there, stating later that Jane was incoherent.

John and Jane would both wake up the next day extremely hungover and uncertain about what had happened. Later in the day, Jane would learn she was no longer a virgin. Three months later, John would find out he'd been expelled.

***

Before Rolling Stone and UVA, before Jameis Winston and Florida State, before a slight young woman began hauling a mattress around Columbia University, there was Title IX, the landmark 1972 statute establishing that no student in a federally financed education program can be discriminated against or deprived of equal access to education because of his or her gender. For decades Title IX was known mostly for its impact on college sports, and though the law technically covered incidents of harassment and violence, sexual assaults on college campuses were generally matters left to the discretion of college administrators. "Most schools were not thinking of these cases as being about Title IX," says Nancy Cantalupo, a professor at Georgetown Law and a vice-president at the National Association of Student Personnel Administrators. "They were just thinking about them as being a part of their student disciplinary process."

That all began to change in 2011, when the Office for Civil Rights in the Department of Education, which is charged with enforcing Title IX compliance, sent out what it calls a "Dear Colleague" letter informing any college that receives federal funding—that would be almost all of them—that it must treat sexual-assault claims as potential federal civil-rights violations or risk losing their funding. The decision effectively put colleges in the law-enforcement business, and it also provided a powerful tool to a new generation of activists across the country who were fed up with how administrators too often blamed or dismissed victims of sexual assault on campus.

In the spring of 2013, two professors at Occidental, Caroline Heldman and Danielle Dirks, filed two complaints against the school, under Title IX and a related law, on behalf of the recently formed Oxy Sexual Assault Coalition (OSAC), alleging Occidental had mishandled investigations and underreported incidents of sexual assault for dozens of women. OSAC's list of grievances is disturbing, including: "two of three respondents found responsible for multiple rapes have been invited back on campus, exposing a new crop of students to known predators"; "administrators telling survivors after meeting their assailants, 'he didn't seem like the type of person who would do something like that' or 'he didn't seem like a rapist' "; and a college administrator "telling a group of male athletes that most of the cases of alleged rape at Oxy are 'girls getting back at their ex-boyfriends.' " There were allegations that critics of the administration were being intimidated and that their e-mails were being secretly monitored, both charges that Occidental would deny. Under intense pressure from both the OCR—which was investigating the potential Title IX violations and could, theoretically, withhold Occidental's federal funding—and campus activists, the college president, Jonathan Veitch, promised to make amends and turn Occidental into a national leader in fighting sexual assault, in part by revising its policies on investigating such offenses and expanding its definition of sexual assault.

John was only vaguely aware that all this was going on when he made his decision to attend Occidental. "I'd heard about it, but I had this kind of 'it won't affect me' mentality," he says, sitting in the shaded area outside a Starbucks in a sunny part of California last November. "College has this built-up reputation as being the best years of your life. You're gonna get a great education, you're gonna meet amazing people, you have the social and moral liberty to indulge yourself. It's built up as that in our society, and it was definitely that way for me."

Fourteen months since that night, John has agreed to speak in detail for the first time about his experience at Occidental. With a pristine white zit just above his mouth and little evidence of ever having shaved, he's a young nineteen, and in between bites of a bagel and sips of some chai concoction, he spoke a little about his life before college: born and raised in California to religious parents; an A student who drank a little but not much in high school; a varsity athlete in a prep-school sport; a highly social kid who, in the words of his father, never clung to his mother's leg when entering a new room. He'd applied to Occidental in part because his grandparents had met there as students and in part because he liked its international-relations program, and when he was accepted, he crossed his other options off the list.

He knew Jane a little from around the dorm and from a class they had together. "I had seen her two or three times in class. I had one conversation with her. I really didn't know her at all." And then came his initiation night. "There were a variety of drinking games, like you had to drink a certain amount of alcohol in a certain amount of time, then you had to do push-ups and run to another house. There were four challenges, and I made it through three because I was throwing up so much."

John says he remembers almost nothing from the following hours back at his dorm. "Nothing specific. I woke up and I was like,wow. Like, what?" He checked his text history and put the pieces together, slightly mortified by what he was reading. ("When I look in the mirror, do I see that person [from the texts]? No. That was me extremely, extremely intoxicated.")

Jane—also not her real name—told investigators that she woke up on Sunday morning still a little drunk and saw a number of missed calls and "freaked out voice mails" from the friend to whom she wrote "Imgoingtohave sex now." Reading through her text messages, she began to suspect what had happened, but she wasn't certain until later in the day, around seven, when she met with John's neighbor from down the hall—the "Are you okay?" one—who confirmed what happened. (John's roommate told investigators that he'd met with Jane earlier in the day, around 3:00 P.M., and told her that she'd had sex with John, though Jane never mentioned this meeting in her statements.) Around 11:00 P.M., she bumped into John and, according to the investigators' report, "asked him bluntly, 'Did we have sex last night?' He told her that they did. But when she asked how he knew, he said he did not remember having sex with her. He said that he concluded they had sex, because he found her belt and earrings, he saw his text messages, and he found a used condom." (Jane, through her attorney, declined to comment for this article and has never spoken publicly about that night or its aftermath. All statements and recollections attributed to her are from the investigators' report.)

After this initial encounter, John says, they met up again later that night and spoke for a while outside their dorm. "We just sat outside Braun Hall and talked for like two hours. I was like, 'Wow, we had sex last night and I don't really know you,' and she was like, 'I don't really know you.' And we just talked it through. I mean, it's awkward, but we had a pretty decent conversation and basically chalked it up to a drunken mistake. We left things very good right then.

"That was Sunday night, and Monday, the next day, I was sitting in class and she wasn't there," he says. "And halfway through the period—there's a whole bunch of open seats—she walked in. I was at the far side of the classroom. We made eye contact, she came over and sat next to me." John's roommate, who was also in the class, told investigators that it looked like the two were getting along normally. "I thought it was weird after I learned of the complaint," he said. "Why sit next to him if he assaulted you?"

John—not his real name, as he prefers to remain anonymous—arrived on campus at the end of August and, like all incoming students, attended the mandatory orientation seminars. "Absolutely mandatory," he says today. "And due to the fact that they'd just been hit with this major Title IX suit a couple months earlier, our orientation was absolutely dominated by sexual assault." When the presentations turned to alcohol and its role in sexual assaults, John recalls, "the line is basically that you have to get consent. If someone's incapacitated, if someone's passed out, [they] can't give consent. That was pretty clear." Nothing about signs of potential incapacitation beyond obvious unconsciousness? None that he can recall, John says. "Even now it's murky on where the line is between drunk and incapacitated." (Occidental declined to clarify how its orientation distinguished between intoxication and incapacitation either during 2013 or after.)

Jane was late for class because, acting on advice from her roommate, she'd gone to the campus health center to speak to a counselor about Saturday night. According to Jane's statement to investigators, the counselor listened to her story and responded: "That sucks a lot." Jane then met with the resident survivor advocate, who advised her to go get a rape kit performed at a local clinic. The advocate also told her that since she was seventeen, the doctor would have to alert the authorities. As Jane did not want to involve the police, she instead went to class and sat next to John because, as an advisor would later report, she "didn't want to make a big deal of it." (The advisor also reported that she told her she "felt fine sitting next to him" and that he "genuinely seems like a good person"—which may have been plain statements of fact or, as some would later contend, evidence she was in denial, which is not uncommon among trauma and abuse victims.) After class, she approached her professor, Movindri Reddy, and over two conversations, told her everything that had happened. Reddy suggested she speak to someone.

Jane and John would text later that night:

JOHN: What did you guys talk about? [referring to a group dorm meeting]

JANE: Making good decision. Which I found somewhat fitting.

JOHN: Ahaha that is definitely fitting. I think I'm gonna take a long break from alcohol here …

JANE: I might join you on your stint of sobriety

JOHN: Dooo itttt. I'm gonna be sober all week, I need to focus on school and get my head on straight.

JANE: Do you feel guilty?

JOHN: Yes. I was blackout drunk but I still feel terrible about what happened. I'm so sorry that everything happened this way, I wish it was more special for you.

JANE: Okay

JOHN: I don't know. I'm not angry that stuff happened between us, I just wish we had known each other more.

JOHN: I'm glad that we're still talking :)

JOHN: Sigh. I hope none of that came across the wrong way. I want you to know that I'm not a bad guy.

JANE: I think I'm still trying to think through everything. And I'm not doing a great job

"I thought we were just kinda gonna have an awkward friendship moving forward," John says. "Unbeknownst to me, she'd been talking to a lot of people. You know, counselors."

One of those counselors was Danielle Dirks, the professor who'd helped file the Title IX complaint the previous spring and the someone that Reddy suggested she speak to. According to Dirks's statements to investigators, when Jane first told Dirks her story, Dirks called what happened to Jane "rape," to which Jane replied, "Oh, I am not calling it rape yet." According to Jane's statements to investigators, Dirks told her that John "fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and 'from a good family.' " Dirks would also tell the investigators that Jane's behavior matched "the dozens of other survivors [of sexual assault] I have met with on campus"; that Jane had been in "a strong state of denial" about the nature of the event; that John was "acting in the same way all these other young men [involved in sexual assaults] have acted by checking in on Jane after the incident, and seeking to manage her by being nice in a manner … described as 'disingenuous.' "

(Dirks did not respond to requests to be interviewed for this story, but she told the Web site Business Insider in May 2014 that "regarding my alleged statement on the 'profile of a rapist' at Occidental, the College's investigative report misrepresents my statements and contains factual errors regarding my involvement in the case." Whether Jane misrepresented to investigators what Dirks told her, or whether investigators made a mistake when recording Jane's testimony, and whether it bothered the college that a key witness in its investigation, the person whose handwritten notes from meeting with the accuser were submitted as evidence, is now alleging factual errors and misrepresentations in the final report is unknown. Occidental declined to comment on Dirks's claims or anything else regarding the details of the case, citing pending litigation. However, Dirks elaborated on her view of male college students in general to New York magazine in September: "Research, [Dirks] says, shows that only a small percentage of college guys truly don't know where the line is—'and, for them, if you tell them to get verbal consent, they don't push so hard.' She pauses. 'But the rest of them—and I know it's hard to think of our brothers, our sons, like this—are calculated predators. They seem like nice guys, but they're not nice guys.' ")

Over the following week—as she continued speaking with Dirks and, as she relayed to investigators, her roommate "pushed her to realize that she had been sexually assaulted"—Jane started to develop what she described as emotional problems. Nightmares. Problems focusing. Flashbacks to that night. According to the investigators' report: "Jane Doe stated that she decided to report what had happened when she realized how much it had affected her emotionally, while seeing no reaction from John. She noted that he attended his classes without difficulty, and she 'saw that he wasn't fazed by what had happened at all.' "

Jane told investigators that since the incident with John, "navigating around corners with right angles 'scare[d] the hell out of me [because] I don't know what is around the corner.' " She also said that she heard John was "going on about how much he hates women." (John denies saying anything like this.) And she told investigators, "It scares me that he still goes out and still goes to party. I don't think anyone should have to go through what I have gone through."

About ten days after the event, Jane decided she would report the incident to both the campus and criminal authorities. (At Occidental, like nearly all colleges, a student can choose both options, one option, or neither—there is typically no requirement that the accuser or the college alert the local police that a potential crime occurred—though in Jane's case, because she was under the age of eighteen at the time of the incident, Occidental policy would have likely required administrators to contact the authorities whether she wanted them to or not.) Jane was ready to call it rape.

***

"I was walking on campus with some friends at around 9:30," John recalls of the night when his life as a normal Occidental student effectively ended. "I got a call on my cell phone from an unknown number and I picked it up. It was the Title IX director of the school, saying, 'You need to get all your stuff and get out of the dorm. We're gonna have officers take you somewhere.' She was being extremely legalistic, telling me that there's a complaint against me but not really clarifying what it is. And I remember just being like, 'Tell me what's going on.' And she was just like, 'We really can't.'

"I called my dad right away," John says, "and I was like, 'You should go outside. I have something to tell you.' "

John's father called a family friend, an attorney in Los Angeles named Mark Hathaway, and after learning the extent of the allegations over the next few days, according to John, they started "looking over the text-message evidence. It was like, logically, there's no way they could expel me."

Around the time Jane filed her complaint with Occidental, she went to the LAPD, where, according to her statement to investigators, she was asked by a desk officer "if John forced her into his room, and when she said 'No,' the officer stated, 'Well then, it's not rape.' " Jane went home distressed. (According to a representative from the LAPD, this was a procedural error and not how accusations of sexual assault are typically handled. It is also a prime example of exactly what women fear they will encounter if they go to the police.)

Despite the initial encounter, LAPD detectives visited Occidental several days later and told Jane that they would investigate the case. Six weeks later, after collecting evidence—including the text messages exchanged by John and Jane—and interviewing witnesses (except for John, who, on the advice of his attorney, declined to be interviewed by the officers), they found insufficient evidence to charge John with a crime. According to the Charge Evaluation Worksheet completed on November 5, filled out and signed by the deputy district attorney, "witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment… . Specifically, the facts show the victim was capable of resisting based on her actions… . More problematic is the inability to prove the suspect knew or reasonably should have known that she was prevented from resisting in that state. It would be reasonable for him to conclude based on their communications and her actions that, even though she was intoxicated, she could still exercise reasonable judgment… ."

Read the rest of the story here: http://www.esquire.com/news-politics/a33751/occidental-justice-case/