Occidental Expels Student for Rape Under Standard So Low That the Accuser Could Have Been Found Guilty, Too

Does all drunken sex constitute rape? Obviously
not, but that’s the argument Occidental College administrators must
make in their zeal to prosecute a male student for sexual
assault—even after police acquitted him.

The student, identified only as “John Doe,” had sex with his
accuser on September 8th, 2013, according to
details of the case obtained by the Foundation for Individual
Rights in Education. Both Doe and his accuser had been drinking. By
several accounts, the sex was consensual. The accuser
sent Doe a text message beforehand asking him if he had a
condom. She also texted a friend and clearly announced her
intention to have sex with Doe.

After that night, the accuser spoke with several Occidental
employees, including Danielle Dirks, an assistant professor of
sociology. Dirks told the accuser that Doe “fit the profile of
other rapists on campus in that he had a high GPA in high school,
was his class valedictorian, was on the water polo team, and was
‘from a good family.'”

A week later, the accuser filed a sexual assault report against
Doe.

The Los Angeles Police Department determined that both parties
had consented to sex and decided
not to charge Doe:

 “Witnesses were interviewed and agreed that the victim and
suspect were both drunk, however, that they were both willing
participants exercising bad judgment …. It would be reasonable for
[Doe] to conclude based on their communications and [the accuser’s]
actions that, even though she was intoxicated, she could still
exercise reasonable judgment.”

Occidental College, however, is under pressure to be seen as
doing something about sexual assault on campus given
the federal investigation into its rape prevention practices,
so the college hired attorney Marilou Mirkovich to investigate the
matter. Mirkovich concluded that the female student did indeed
consent to sex. However, since she was intoxicated, her consent was
invalid, according to Mirkovich.

This is a flawed interpretation of Occidental’s own policy on
consent, which requires students be not merely drunk but actively
incapacitated for rape to have occurred, according to FIRE Vice
President Robert Shibley.

Indeed, Mirkovich’s interpretation makes no sense. If all
drunken sex is rape, then Doe and his accuser are both guilty.

“Both parties would be guilty of sexually assaulting one
another,” Shibley told me in a phone interview.

Occidental is only holding Doe responsible, however. He was
found guilty and expelled.

The college denied Doe’s appeal. He has since filed a lawsuit
against the college and reached out to FIRE for help. FIRE sent
Occidental a letter outlining the group’s concerns that Doe’s due
process rights were severely violated.

“Right now we are waiting from a response from Occidental,” said
Shibley.