The facts in Doe v. RPI are of the sort that typically make a federal judge cringe. No one needs to know this much about the sexual claims of college students. It’s not that they don’t know it happens, but no one wants the image in their heads. Nonetheless, Judge David Hurd in the Northern District of New York told the ugly conflicting stories.
Both Doe, the male student, and Roe, the female student, agree that she plied him with vodka to get him drunk while she remained sober, and they then had consensual sex, as they had numerous times before. What happened after that is in dispute.
However, Doe eventually gave in and had sex with Roe again. Plaintiff claims that he remembers only pieces of this round of intercourse, but he claims to distinctly remember that Roe asked him to put his hands around her neck, even though this made him uncomfortable. Plaintiff eventually complied, if only briefly. Roe agrees that she requested that plaintiff put his hand on her neck and provide pressure, but she claims that this happened during their first, consensual encounter on that night.
Doe further alleges that Roe then began to pressure him into having anal intercourse with her. He also claims that eventually, despite his recurring protest that he did not wish to engage in intercourse without a condom, he had anal sex with Roe for about ten seconds” before stopping because he felt uncomfortable. Plaintiff claims that after he and Roe concluded their second intercourse, he needed to ask her to get him water because he was too drunk to get out of bed.
Roe contends that this was all nonconsensual, forced upon her by a man sufficiently in control of his faculties that he was responsible for this actions. Who is telling the truth might be a hard issue to resolve if that were, indeed, the issue. But it wasn’t much of a problem at RPI as the answer was predetermined, and credibility really played no role in the decision. And that is what makes Judge Hurd’s decision exceptional.
The court begins by Gertruding, because to do otherwise would be injudicious and because real sexual assault should be utterly repugnant to any decent person.
The Court understands many of the impulses that may cause a school to favor women over men in the context this case presents. After all, claims of sexual assault like Roe’s—and Doe’s—are often difficult to prove. By their very nature, these claims typically involve a level of privacy that undercuts the availability of witnesses, to make no mention of the stigma that attaches so easily to sexual assault victims, the profound psychological trauma that inevitably follows sexual assault, or the age-old stereotypes that call listeners to disbelieve complainants—especially, historically speaking, women. Much work must be done to ensure that sexual predators are called to justice, and the Court does not shrink from that truth.
And by acknowledging the obvious, even if lacking in the nuance that one might want from a federal judge, Judge Hurd tried to lessen the sting of what came next, what had to be said out loud.
Instead, it is to this Court’s grudging relief that its task is not to resolve the nettlesome question of how to properly create an environment such that women, who for far too long have been victimized by those stigmas and stereotypes, can feel secure enough to seek justice without allowing an accusation against a man to carry the day on its own. Rather, it is enough to say this: whatever answer may come to the question of how to secure the rights of an accusing woman and an accused man, that answer cannot be that all men are guilty. Neither can it be that all women are victims. (Emphasis added.)
For regular readers of SJ, the “believe the women” mantra has been the culmination of a couple decades of sophist argumentation designed to overcome the difficulties, and yes, the stigmas and stereotypes, of women’s accusations of rape being dismissed. But getting over the hump of proving accusations through the creation of a litany of excuses, trauma-informed investigations, false statistics about false rape accusations, the presumption of guilt and the reversed burden of proof, has produced a system that ultimately found itself not merely incapable of reaching a legitimate outcome, but largely disinterested.
The man is guilty. The women is the “survivor.” That, Judge Hurd concluded, cannot be the answer.
This is where many ask the obvious question, then what is the answer? This begs the question, as there isn’t always an good answer to every question. This is what the legal system, with all its flaws and errors, seeks to accomplish, and despite centuries of effort to be better, to do better, still falls substantially short.
One easy response is that whatever the answer may be, campus sex tribunals will never be an adequate forum to achieve it. But that, of course, invokes the flawed reaction that this isn’t a criminal court and male students found responsible aren’t being sentenced to prison. This, too, is part of the litany of excuses, since innocent lives are ruined by campus sex findings, even if imprisonment isn’t the outcome. The consequences of campus sex tribunals can’t be so easily trivialized.
At its core, this is a competition between the presumption of innocence and an inquisition. If an accusation is sufficient to presume guilt, which is what “believe the woman” means, and thereby shift the burden to the accused to prove his innocence, most often by proving a negative, then the objections and difficulties of ascertaining the truth are no longer a burden. But the most fundamental tenet of our jurisprudence, guided both by principle and practicality, is that the accused it presumed innocent and guilt must be proven.
Accomplishing that might be hard and onerous, and for a victim, painful and traumatic. But as Judge Hurd said, the answer cannot be that all men are guilty. Neither can it be that all women are victims.