Ohio State University Wants to Expel a Woman for Nonconsensual Group Sex

Ohio State University (OSU) tried to expel a student for engaging in an allegedly nonconsensual threesome. That student is now suing the university, and this week a judge agreed that the administrators who investigated the case likely violated the due process rights of the accused.

Unlike the vast majority of sexual misconduct disputes litigated under the auspices of Title IX, the federal statute mandating gender equality on campus, the accused is a woman. The genders of her accusers are unknown—Judge Edmund Sargus’s decision omits the use of gendered pronouns.

The accused student, referred to as “Jane Roe,” filed a motion for preliminary injunction to prevent her expulsion, arguing that she was denied the opportunity to cross-examine her accusers. Judge Sargus agreed to this request, explaining in his decision that Roe is likely to prevail in court.

“Given the central role cross-examination has played as a truth-seeking device in our justice system, and given that Defendants have not identified any authority supporting their position, the Court cannot conclude that a pre-hearing investigative process, such as OSU’s, is a constitutionally adequate substitute for cross-examination,” wrote Sargus.

The dispute actually concerns two separate incidents, one on September 3, 2016, and another on November 12, 2016. The September incident took place during a showing of The Rocky Horror Picture Show, where Roe met up with several friends. One of these friends, LH, became very drunk, as did Roe. While they were seated next to each other, Roe allegedly began to grope and kiss LH.

LH claimed to have remembered Roe’s actions later after a friend told LH something had happened. The university investigated the matter, and noted that LH said Roe had engaged in nonconsensual touching while LH “drifted in and out of consciousness.” Roe countered that she merely sat next to LH and couldn’t recall anything inappropriate happening. A witness said Roe had “encroached” on LH’s territory but did not see her kiss LH.

The November 12 incident involved two other complainants, RK and MH, who met up with Roe for a night of drinking and dancing. All three returned to Roe’s house afterward, where they engaged in a threesome. RK and MH later claimed that Roe had “engaged in intentional sexual touching and sexual penetration without consent and/or by force or coercion.” RK told an investigator that consent had been verbalized, but that RK had been too drunk to meaningfully consent at the time. Investigators interviewed several witnesses, but as The College Fix‘s Greg Piper notes in his write-up of the case, “five of the seven purported ‘witnesses’ had simply been told by one or another accuser about the incident. The other two were roommates of Roe and one accuser.”

Neither RK nor MH showed up for the hearing, leaving Roe with no opportunity to meaningfully cross-examine them. Roe testified that she had obtained their consent for each and every individual sex act she performed. Roe’s roommate testified that he saw one of the complainants leave the house after the encounter, and that this person did not seem drunk.

Administrators suspended Roe for two years as a result of the Rocky Horror Picture Show incident. They expelled her for the allegedly nonconsensual threesome. She appealed both decisions, and lost twice.

These are complicated allegations involving multiple intoxicated young people. (They might also involve students who were experimenting with their sexuality, and who may have regretted or been ashamed of certain same-sex activities.) It’s entirely possible that Roe violated acceptable norms of consent. But she should have had an opportunity to question her accusers about what happened. Cross-examination is a vital component of due process, and a critical tool for evaluating conflicting stories and arriving at the truth.

“Cross-examination is important for both the accused and the accuser, because both sides have an interest in accurate and reliable outcomes,” Joshua Adam Engel, an attorney for Roe, tells Reason. “For hundreds of years we have recognized that cross-examination helps the finder of fact ‘get it right.’”

KC Johnson, a chronicler of the various due process abuses suffered by students accused of sexual misconduct under campus Title IX procedures, describes Sargus’s defense of cross-examination as “very powerful.”

Indeed, it’s cases like this one that remind us why Associate Supreme Court Justice Ruth Bader Ginsburg recently told The Atlantic that she believes some college sexual misconduct policies are “not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system.”