By Ashe Schow
A male student at Embry-Riddle Aeronautical University (ERAU) is suing after the school expelled him for sexual misconduct even after evidence was presented that showed he was the victim.
The student, referred to as John Doe in court documents reviewed by The Daily Wire, says in his lawsuit that he informed ERAU that he was too intoxicated to engage in sexual activity and witness statements back him up, yet the school relied on antiquated gender stereotypes about male sexuality to say his claim wasn’t credible.
The lawsuit stems from an encounter between John and a student referred to only as Jane Roe that took place on October 26, 2019 following a Halloween party at John’s home. John and Jane, according to the lawsuit, had been exchanging text messages for weeks prior to the party and had gone on several dates, though John no longer has the messages.
John says he had about 15 alcoholic drinks the night of the incident, and witnesses stated he was “drunk” while others said Jane appeared fine.
The two students ended up in John’s room and began making out. John says Jane initiated the sexual activity by saying she wanted to kiss him. The two then engaged in oral sex and Jane allegedly told John she wanted intercourse. At some point during sexual intercourse, Jane allegedly joked that her “vagina was broken,” something she would later claim was her way of telling John she was uncomfortable.
Throughout all of this, John alleges Jane never received affirmative consent from John because he was too intoxicated to have given it, according to ERAU’s Sexual Misconduct Policy.
Jane spent the night at John’s house. In the morning, she overheard John and another student talking about a woman who engaged in sexual activity at the party. John says in his lawsuit that he believes Jane thought she was the one being discussed and didn’t want to be talked about this way.
A witness, JD, who said he was a “really close friend” of Jane and a friend of John’s, provided a sworn statement that was given to ERAU. In the statement, JD says both John and Jane were drunk at the problem and that he saw Jane the next day. Jane at that time told JD, “I think I got raped,” though she admitted she never did anything to indicate she didn’t want to have sex that night. JD also said Jane kept saying she did give consent for the kissing and oral sex.
“And, then, I was, like, ‘Did you tell him to stop kissing you, or, you know, tell him, like, that’s not what you wanted?’ She was, like, ‘No, I didn’t. I was okay with that,’” JD said in his statement. He gave a similar explanation of his conversation with Jane about the oral sex.
“So, then, she was, like, ‘Well, after, you know, we were kissing he gave me head or whatever. You know, oral sex.’ And I was, like, ‘Okay. Well, did you tell him to stop then?’ And she was, like, ‘No, I didn’t tell him to stop then.’”
JD said Jane told him she consented to kissing and oral sex.
“So I was, like, ‘So you’re okay with, you know, making out and him giving you head? That — you was okay with that?’ She was, like, ‘Yes, I was fine with that,’” JD said in his statement.
Jane also indicated to JD that she never told John to stop or gave any indication she didn’t want to have sex with him.
“And, then, I was, like, ‘So at what point did you tell him to stop, because it sounds like to me you knew what were you doing and that, you know, that’s what you wanted?’ She was like, ‘Well, when he, you know, finally started, actually, having sex with me I told him my vagina was broken, but I laughed about it.’ And I was, like, ‘So why do you think he would stop behind you making a joke about that? You know, like — it wasn’t, like, you said, Stop. Seriously stop. You made a joke, you know, so how is he supposed to, you know, take you seriously and be, like, okay I need to stop doing this because she’s uncomfortable when you’re cracking jokes.’ And, then, she just was, like, ‘I don’t know,’” JD said.
JD is also the one who said Jane “was mad” after overhearing John talk about a woman having sex at the Halloween party and believed she was the woman being discussed. JD said in his statement he believed Jane exaggerated a story about sexual assault due to this anger.
“I feel, like, she’s doing all this because of what she heard that morning thinking that it had to do with her. I think that’s what it is. I think, ultimately, she was okay with them having sex and that the only reason she even went as far as she did, as far as calling it rape, was because she didn’t want to be a rumor that somebody had sex with [John Doe]. I think that’s what it really boils down to and it just spiraled into this snowball effect and now she has to run with it,” JD said.
After the encounter, John alleges, he and Jane exchanged text messages about their activity. John apologized “for the way [he] acted on the phone.” Jane sent him a message that said: “I want to meet and talk this out. Just you and I. I really just want to move past this. I hope u feel the same.”
Another witness, AC, said in a sworn statement (that was also provided to ERAU) that indicated Jane was “fine” during the party.
“… she seemed completely coherent. She wasn’t slurring. She wasn’t leaning on anybody. She was — she seemed completely fine. And it didn’t even occur to me that she could have drank, because that’s just how well she handled it,” AC said in his statement. “[Jane Roe] just — she didn’t represent or seem as though she had any issues with any of the issues you were just describing. She was able to talk clearly and very coherently. She was able to answer my questions immediately. There was no delay. There was no second thoughts. There was no stuttering, slurring. There was no needing to lean on someone. Hanging on a wall, falling over. There was none of that.”
Another witness, RT, describe Jane as consenting to everything that happened.
A couple weeks later, on November 11, 2019, John was told a sexual assault complaint had been lodged against him. He was told on November 13 that Jane claimed she was too drunk to consent. When John said that, in fact, he was too drunk to consent, the Title IX Coordinator dismissed his claim, actually suggesting that John wouldn’t have been able to maintain an erection if he were truly intoxicated.
John was immediately suspended from his athletic team. Jane was not, despite John’s own credible allegation that he was too intoxicated to consent per school policy. John says in his lawsuit that he was told by the Title IX investigator not to file a complaint that he was the victim because ERAU would see it as retaliation against Jane.
In December, John and Jane met with the ERAU chaplain to reach an informal resolution, according to the lawsuit. The process was supposed to be confidential, but John alleges Jane falsely claimed to the Title IX Coordinator that John admitted to raping her. John says he did no such thing.
John was informed on January 8, 2020 that Jane wanted to launch a formal investigation against John. When John tried to point out inconsistencies in Jane’s claims while looking over the investigative report in February 2020, he was told he didn’t have to point them out because they were already marked down.
Yet another witness, MD, provided a statement to ERAU saying Jane’s actions in the weeks after the sexual encounter undermined her credibility, yet the school investigator didn’t include this information in the final report.
On March 24, John was found responsible for sexual misconduct. They deemed Jane “credible,” according to John’s lawsuit, “based on a subjective assessment of Jane Roe’s conduct after engaging in sexual activity with John Doe, including the observation that Jane Roe ‘was angry with [John Doe]…’” They found John had a “lack of credibility,” according to his lawsuit, “based on subjective factors including observations that John Doe ‘appeared more concerned about his own well-being that what [Jane Roe] was going through.’”
John was never allowed to question Jane.
John was informed he would be dismissed at the end of the semester. He appealed and was granted a request for reconsideration, but his lawsuit alleges the new investigator didn’t conduct an independent investigation and simply relied on previous information, including Jane’s medical records. John alleges in his lawsuit that the investigators didn’t actually see Jane’s medical records and relied only on her own summary.
John was again found responsible in a letter that read almost exactly as the original finding of responsibility. It again dismissed his claim of being too intoxicated based on information that would not have discounted such a claim if Jane had made it, and relied on the same outdated, gendered assumption that a drunk man cannot maintain an erection.
John is now suing for breach of contract and Title IX violations, requesting economic and emotional damages in excess of $75,000.