She was drunk. They had sex.
On both of those facts, everybody agrees.
But did her actions that night imply consent even though she initially said no? Was she too drunk to give consent? Can he be held civilly responsible for sexually assaulting her if she was drunk?
Those are questions a Washtenaw County Circuit Court jury will likely have to decide in a case stemming from a January 2016 incident at a fraternity house, just off the University of Michigan campus in Ann Arbor.
The incident — which has resulted in dual lawsuits and banishment of the accused man from campus — points out how murky sexual assault allegations can become when young people and alcohol are involved, and there are no other witnesses.
No criminal charges were ever brought against the male student in the case. The Free Press is not naming either student because of the nature of the allegations and because they have filed lawsuits as Jane Doe and John Doe.
An internal U-M investigation first cleared the male student, then an appeals panel reinstated the charges against him. He then signed an agreement that called for him to be banished from the school, although he has sued to get back in. A federal court struck down that suit, although his attorney has filed a motion to have that reconsidered.
The female student — who was a freshman at the time of the incident — filed a suit in Washtenaw County Circuit Court seeking damages for the assault and the male student filed — in the last month — his own lawsuit alleging the female student defamed him by lying to the police, U-M administrators and the news media, including the Free Press.
That was the backdrop for a court hearing last week during which attorney Deborah Gordon, who is representing the male student, posed a question a jury will ultimately have to answer: If the female student had been voluntarily drinking, are there legal grounds for a suit against the male student? And if there is grounds for a suit, how much is the female student responsible for what happened — a decision that could reduce the potential financial remedy if the jury finds against the male student.
That's because there's nothing specific in Michigan civil law directly dealing with sexual assault, Gordon argued, saying that in the eyes of the law, it was the same as an "old-fashioned assault and battery claim." She claimed that meant the drinking was a major factor. She said case law shows that if someone gets voluntarily drunk and steps into the street, getting hit by a truck, the drunk person can't sue the truck driver.
Gordon spent much of her time reading from a deposition of the female student to establish that she got voluntarily drunk.
In a deposition, Gordon asked the female student, "If you had not been drunk, you wouldn't have been in (his) bed, correct?" According to Gordon, the female student responded: "Right."
In her report to U-M administrators and in an interview with the Free Press, the female student said she was in and out of consciousness during the encounter. Citing depositions, Gordon said that wasn't the case.
"She voluntarily walked to the bed," Gordon said in court. "She was always able to form words."
Both sides agree that as the female student entered the bedroom, she said, "no sex." But Gordon said that was overruled by her actions, including her kissing of the male student and agreeing to perform oral sex.
"My client ... watched her actions.. and inferred consent," she said. "The 'no sex' at the door was wiped out by her actions."
And the male student couldn't be held responsible for her drinking, because she did it voluntarily, Gordon said.
The female student's attorney, Jennifer Salvatore, balked at that argument, and warned it could lead to major issues down the road in other situations.
"The (implication is) that any woman who becomes intoxicated and then is sexually assaulted can't sue," Salvatore said. "I think that is a dangerous implication."
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