Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses

April 21, 2021

“Victim-centered” philosophy has become widely utilized by campus adjudication panels across the country (1). “Victim-centered” ideology presumes that the accuser is always telling the truth, and any inconsistencies in his or her testimony are taken as actual proof of the putative traumatization. Of course, this assumption precludes the possibility that her memory was affected by excessive alcohol intake, or that she may be recounting a well-embellished falsehood.

Recently the New York Supreme Court ruled on a case in which a female student from the State University of New York – Purchase claimed she was a victim of PTSD, which she said precluded her from giving consent to sexual intercourse.

According to a recent commentary, the New York State affirmative consent policy states 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.” (2)

According to Doe, he and a female Purchase College — State University of New York student were watching a movie one evening with some other students at Doe’s dorm suite. When Doe decided to attend another party, the woman asked, and was permitted to stay at the dorm suite with the other students.

When Doe later returned to the dormitory, the female asked another student to leave so the two students could be alone. She then asked Doe if she could stay the night and requested a pair of Doe’s pajamas to change into. The woman then got into Doe’s bed. The two students began to kiss, and the woman assisted Doe in removing her pajama bottoms. After some initial sexual activity, Complainant took the initiative to request Doe to use a condom. The encounter then progressed to sexual intercourse.

The following day, Doe attempted to contact the female student in a friendly, everyday manner. Three days later she reported the encounter as a sexual assault. A Title IX investigation concluded with Doe being charged with a violation of the Student Code of Conduct, which prohibits any sexual act without consent or sexual intercourse with someone considered to be physically helpless.

The school Hearing Board determined that statements by the woman (now the “Complainant”) about giving consent were conflicting and unreliable. The Board stated it was “concerned that some of [Complainant’s] statements after her initial report were tainted by reading the supports of other witnesses and parties.” This assessment was largely due to the woman’s accounts changing from what she said to the University Police and Title IX Investigator, compared to how she testified during the hearing.

For example, the Complainant told the Police that she was not fearful of Doe. But the woman later told the Hearing Board that she did not ask Doe to stop because she was fearful of him. Additionally, the student changed the reasons for her inability to give consent: First it was fear, then incapacitation due to alcohol, finally it was an anxiety attack.

In contrast, Doe testified that the Complainant was of sound mind throughout the interaction and believed there was clear-cut consent, based on her actions. Nevertheless, the Hearing Board concluded that while the kissing and removal of the Complainant’s pants were consented to, the remainder of the sexual activity was not. The SUNY Purchase’s Appeals Board found that Doe violated the Student Code of Conduct and suspended him for one year.

Doe then filed an Article 78 appeal to ask the New York Supreme Court to review SUNY Purchase’s determination that he violated code C.8 of the SUNY Purchase Student Code of Conduct.

The Court noted that its review of the case was limited to whether SUNY Purchase’s decision was based on substantial evidence. Substantial evidence is relevant proof that would lead a reasonable mind may accept as adequate to support a conclusion or ultimate fact.

The Court cited Education Law § 6441(1), which states that “consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.” The Court noted that the college Hearing Board had reported Complainant’s testimony lacked credibility. The Court concluded that the SUNY Purchase’s decision to punish Doe “was not supported by substantial evidence,” and that the alleged absence of consent amounted to mere conjecture and speculation.

On March 31, 2021 the Court issued a ruling that annulled SUNY Purchase’s decision and dismissed the charge that Doe violated the Student Code of Conduct. Additionally, the Court vacated all penalties against Doe and ordered the expungement of any references to such findings from his academic record (3).

Kimberly Lau (4), counsel to the accused student, explained, “John Doe was found responsible of sexual assault despite the Hearing Board’s determination that the complainant’s testimony on consent was ‘unreliable and conflicting.’ SUNY Purchase’s disciplinary decision was illogical and in violation of NY State law and its own policies on consent. I’m pleased the Court unanimously agreed.”

OCR Review

Ironically, just three weeks before the Court issued its ruling, President Joe Biden issued an Executive Order calling for the Department of Education to consider “suspending, revising, or rescinding” the newly implemented Title IX regulation (5).

The Biden Order is relevant to the New York case because the new regulation requires that complainants and respondents be treated “equitably,” which means “impartial investigations and adjudications,” including “an objective evaluation of all relevant evidence,” according to the language of the regulation (6).

Clearly, the SUNY Purchase adjudication process was not impartial, objective, or equitable.

So as the Office for Civil Rights moves forward with its review of the Title IX regulation, the Office needs to pay attention to the findings of the New York Supreme Court. Specifically, the OCR needs to consider revising the existing regulation to discourage colleges’ reliance on biased “victim-centered” methods, and improve the specificity of its requirements for impartial, objective, and equitable adjudications.

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Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses