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But, a week after the incident, Jane filed a complaint against John with the school.John was ultimately found in violation of Occidental’s sexual misconduct policy, which forbids students from having sexual contact with anyone who is “incapacitated” by drugs or alcohol.

But there is an ambiguous middle ground between clear-eyed sober and passed-out drunk where one or both parties may become too intoxicated to meaningfully consent to sex, and schools have now been tasked with discerning that line for themselves.John was expelled, the harshest possible punishment for students found responsible for sexual assault on campus.Then, he filed suit against Occidental, alleging that the school unfairly applied its sexual misconduct policy based on gender.John awoke to find a used condom and Jane’s earrings in his room; Jane learned that after having sex with John, she had ventured out again to find another man to cuddle with.The facts of what happened that evening are not in dispute.In doing so, they’ve been forced to confront a host of philosophical, moral, physiological, and practical questions—none of which have easy answers.Last year, my colleague Emily Yoffe recounted the Occidental case in a piece arguing that college sexual assault disciplinary processes infringe on the civil rights of men.It’s politically expedient to claim that there’s a clear line between consensual sex and rape, but the truth is that in cases where a victim’s intoxication is the sole indication that an assault has occurred, the distinction is hard to draw.I’m not talking about “gray rape,” the term Laura Sessions Stepp weirdly coined in in 2007 to refer to incidents that are clearly rape but that victims refuse to label as such out of shame, self-blame, or coercion.She was “a little upset and indignant,” one of them reported, but agreed to return to her room. “The second that you’re away from them, come back,” John texted Jane. According to investigators, this witness “had attended sexual assault prevention training during orientation, and had been told what to do if he witnessed a sexual assault.” So he closed the door and let John and Jane continue, because, he told investigators, “This didn’t look like one to me.” Occidental College disagreed.The morning after the incident, both Jane and John said they didn’t remember what happened the night before and set about recreating the evening’s events by speaking with friends who witnessed them having sex, reviewing text messages they had sent to each other, and piecing together the physical clues.


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