Almost a year later, he gets called into the equal opportunity and title ix office at University of Denver (DU).  The year prior he had gone to a fraternity formal in the mountains with a girl that he was not interested in romantically, just friends.  He did not even really want to go.  She convinced him to take her so she could hang out with her girl-friends that were going, and to hang out with guys in the frat.  So they go.

Once there, she acts like a typical young person at their first mountain frat party.  Shots, beer, weed, cocaine, lap dancing, hot tubs, nearly naked, and lacking clear memory.  In the morning, she feels terrible, both from all the intoxicants and some from guilt of what she must have done.  She asked him what happened.  You see, he was not happy about something.  He was trying to avoid her.  He told her that he fell asleep in the bed after midnight while she was watching Netflix.  He said he woke up to her on top of him, grinding on him, she had taken his underwear off and put his penis inside her. 

He did not know what to do, he did not show her he was fully away, she was still intoxicated.  He moved a little, she got off of him and went to the bathroom.  He rolled over and went back to sleep.  He woke hoping it was a bad dream.  He worried about STD.  He did not like the friendship violation.  He knew few would believe him or even care. 

Being naïve and young, he told her what she did and that he was upset with her.  They spent much of the day separately. 

She had no memory.  If he would have denied any sexual contact, there would never be enough evidence for him to be charged or even accused.  But, he told the truth.  She could not handle it and started telling a tale that allowed her to be a victim, in part because of her friend saying she was too drunk to make this decision.  Wait, she has sex with a sleeping man and it’s the sleeping man’s fault.  The friend did not get the full story, made assumptions and the story grows into him raping her.

This is what was said to the frat.  The frat president was advised by national and counsel to send it to the Title IX office.  The frat did.  Equal Opportunity and Title IX at University of Denver did nothing for much of a year.  It appears the girl did not cooperate or maybe Title IX was negligent in investigating.  The young man’s reputation was soiled by rumor throughout his school.  He had no ability to defend.  It actually caused him post traumatic stress (PTSD) because he was the victim and was being blamed as the cause.  Fortunately, he sought psychological help rather than hiding with drugs or worse. 

Almost a year later, she goes to Equal Opportunity and Title IX at DU.  She complains that the frat did nothing.  She does not realize that it was actually Title IX that did nothing.  She tells the tale that has been developing and growing over time with everyone saying she is a victim.  In our culture, women are victims and men are perpetrators.  It cannot be the other way. 

How did we win?

We investigated.  We took a statement from another participant at the party.  He told us that he spent the evening with the girl the next night.  He said they did LSD together and at one point he passed out.  He came to with her on top of him having sex.  He did not mind and continued with it.  This was the night after she did the same to my client, the night after she claims to have been sexually assaulted by my client.  This witness also told about a night a few months after the frat party where they again used drugs, he fell asleep and again he woke to her having sex with him.  To him, this was OK, if a little weird. 

We found that the girl had aggressively performed a lap dance on a frat boy that did not want it.  He tried to get her to stop, some of it is on video.  He was not interested.  Her friend had to stop this and commented on how disturbed this boy was.  Same friend as above. 

We found that the friend was trying to make the girl go to bed, but she was complaining that everyone else was staying up and she would miss out.

We found that as she was being taken to her room, she was saying to the friend, I want to have sex and I do not care who it is. 

Once in the room, the lap dance guy was there, the girl took off her shirt and tried to flirt with him.

She told Title IX that she was unaware if she had sex with other men that night.  She may have.  Yet, she claimed to wake up to the fear that someone had sex with her when she did not want it.  She cannot even remember the consensual sex she thinks she had. 

She was out of control.  But, in a situation like this, the guy is to blame no matter what.  That is what the college orientation materials suggest, that is what trauma informed sexual assault investigation training suggests, that is what we all know from popular culture.  Women need to be taken care of, and men are bad.  She made every choice that night, but she was in no way responsible for her actions.  Is that feminism?  I suspect Camille Paglia would say no.  I am not trying to say she deserves to be raped – no, not never.  But she is responsible for her actions.  And when she does not like her choices, it is not his fault and no one else should pay for her actions. 

We won by showing the truth.  We had to fight hard to win.  In the end, the school would never consider him to be a victim of her – this is bias, prejudice.  In the end, they ruled that the evidence is not strong enough.  They would not give her any blame or responsibility.  They are not investigating the frat for having a drug party that Hunter Thompson would feel home at.  They clapped their hands and walked away. 

My young client will survive.  His college memories will be about this one event and not much else.  He is and always will have trust issues with potential dates.  He has learned lessons about life.  Has she?  His transcript will not say “Found Responsible for Sexual Misconduct.”  Many people he went to school with will always think of him as a possible rapist, even those that believe him and are his friends.

It is an uphill battle to fight Title IX cases.  There is no presumption of innocence.  The investigators and decision makers are trauma informed trained.  [This means they excuse all actions of an accuser, all inconsistencies, all actions that do not make sense.  No matter what an accuser says or does, it supports that they were sexually assaulted.  You think I am wrong?  Learn more about trauma informed theory.  Once you spend time with it, lets talk.]  The burden of proof is preponderance, which means who do I believe more.  There is no burden of production once the claim is made.  So, accuser reports and gives a basic story.  At this point, the investigators and decision makers believe it and the accused must disprove the claim with solid direct evidence that they will believe.  The current process is for the accused to disprove something.  A year later.  And by the way, the Equal Opportunity and Title IX office refused to accept any evidence we developed through independent investigation. 

The deck is stacked against you if you are accused.  But we can win.  I know how.  Of the last 10 Title IX cases I have worked on, we won 7, one had a very reduce charge and sentence and one we admitted to avoid an angry complainant that would bring a felony criminal charge.  Only one was a true loss.  In this one case, my client found a way to finish undergrad and go to graduate school.  Despite having a good Federal Civil suit, he decided to stop and forget it.