Sexual Assault Lawsuit Between College Students Faces Dismissal Request

The college campus is one area where young people coming of age and experimenting sometimes with alcohol, drugs and sex create a volatile mix.  Oftentimes, these encounters occur in fraternity and sorority settings in the form of "dates" set up between male and female pledges.  Such appears to the case in this incident arising at the University of Michigan and involving two male students from California and a female student.

(See Story Here)

According to allegations set forth in this civil lawsuit, a female member of Kappa Kappa Gamma attended a Greek Life "Date Party" as a pledge.  Also present at the party were male pledges from Pi Kappa Alpha and Sigma Alpha Epsilon.  The alleged assailants met up with the alleged victim at a dorm room after the party and engaged in sexual activity, which one of the male participants photographed on his phone and posted on a social media forum.

The two alleged assailants were not convicted of sexual assault in a criminal proceeding but, did plead guilty to photographing sex acts and disseminating them.  This ended the criminal proceedings against the two male participants.  The alleged victim continues to maintain that the sexual encounter was not consensual.

The University conducted a fairly extensive Title IX investigation into the allegations of sexual assault on campus. (See here).  The result of this investigation was that there was no evidence of a lack of consent on the part of any of the participants. Specifically, the investigators concluded that the alleged victim never explicitly said "no" during the sexual encounter.

My analysis of this case as a civil attorney representing victims of sexual assault on college campuses in California:

If this matter would have been investigated under the new so-called "yes means yes" guidelines established and adopted by the University of California and several private colleges in the Golden State, the outcome may have been different.

California's New Yes Means Yes Standard for Sexual Assault

"Education Code 67386.

 (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent."

Therefore, under this standard, a participant in sexual activity "on or off campus" an only have deemed to "consent" to unless there must have been "affirmative, conscious, and voluntary agreement".