He said, she said: A story of sexual assault on Chapman’s campus

Story by Editor-in-Chief Megan Abba and Mark Pampanin, For The Panther

Last year, on Oct. 18, a sexual assault was reported in North Morlan Hall. Photo by Miles Furuichi

Last year, on Oct. 18, a sexual assault was reported in North Morlan Hall. Photo by Miles Furuichi

Editor’s note: To protect the identities of the two students involved in the story, The Panther has decided to use the pseudonyms “Jessica” and “Luke” in place of the sources’ real names.

At 12:37 a.m. on Oct. 18, 2014, Jessica sent a text message to her friend Luke.

“Hey where u at tonight.”

After stumbling to her North Morlan dorm room from an off-campus party, she later said she wanted to cuddle with Luke – something not unheard of for the two then-freshmen, who had met in the first few weeks of college, both lived in the same hall and both went to Dodge College of Film and Media Arts.

“Our relationship was not sexual at all,” Jessica said. “It was not romantic, but we were close in the sense that multiple times he had fallen asleep in my dorm or stayed over.”

Luke arrived at Jessica’s room at 2:30 a.m. By that time, Jessica, who had been throwing up, said she was “really, really intoxicated.” She was in her own room, lying in bed and remembers Luke entering from the bathroom, after her suitemates in the adjacent room let him in. Jessica remembers Luke seeming intoxicated as well.

Luke had been drinking with some of his fellow pledge brothers from Beta Theta Pi – a fraternity that later dropped him from the pledging process. He remembers getting a text message from Jessica just as he was leaving.

“I wasn’t really sure what to expect,” Luke said of the night. “A good option for the rest of the night, I suppose.”

Luke said he arrived at Jessica’s front door about 30 minutes later and she opened the door to greet him. He doesn’t remember Jessica being very intoxicated, and instead, remembers her walking normally, as they talked and laughed in hushed voices so as to not disturb her roommate.

Memories and expectations diverge

What happened in Jessica’s North Morlan dorm room can only truly be known to Jessica and Luke, but even they have very different memories of the night.

Luke remembers a night of awkward, drunk but consensual sex – one where he asked Jessica if he could kiss her, and after she said yes, it quickly and mutually progressed to intercourse.

Jessica remembers coming in and out of consciousness, Luke undressing her against her will and sustaining a rape that lasted three hours and caused her vaginal injury.

Three months later, on Jan. 22, Luke would receive another message, this time via email, from Jerry Price, dean of students and vice chancellor of student affairs.

“Based on my review of all the case documentation, including my conversations with you and Jessica, I have concluded that it is more likely than not that you interpreted her nonverbal behavior incorrectly, and thus engaged in sexual intercourse without her consent,” the email read.

Luke was suspended from Chapman for three years for violating the sexual misconduct policy of the student conduct code.

The ruling was not what Jessica or Luke had expected. Jessica thought that a verdict of rape would be met with expulsion, and Luke expected he would be fully vindicated, certain of his innocence and that he had consent from Jessica from verbal and physical cues.

Their case is where Chapman officials investigating and ruling on sexual assault reports enter the murky waters of memory and expectation, and apply laws seldom understood by the students who are expected to follow them.

Increase in reports

Jessica is not alone at Chapman University.

At Chapman, three forcible sexual offenses were reported in 2010. In 2014, the number reported had doubled to six, according to the Annual Security and Fire Safety Report released by Public Safety Oct. 1. These reports only account for incidents occurring inside Clery Act boundaries, which is typically on and adjacent to campus.

Graphic by Megan Abba

Graphic by Megan Abba

In 2015, there have been nine reported instances of sexual misconduct, according to the Public Safety crime log, with the most recent occurring Oct. 4 in Sandhu Hall.

DeAnn Yocum Gaffney, associate vice chancellor for student affairs and associate dean of students, said last year had been a busy year for sexual assault reports but not all cases go reported.

“I don’t think incidents are going up, I think it’s more reporting,” she said. “I think that national attention that is in the press – that is on the minds of students and parents – as well as our engaging in different processes here to try to promote reporting.”

The reports at Chapman mirror a national trend as sexual assault reports on college and university campuses in the U.S. has increased by 84.3 percent between 2009 and 2013, according to data from the Department of Education that was released in April.

Graphic by Megan Abba

Graphic by Megan Abba

Dani Smith, director of Creating a Rape-Free Environment for Students (C.A.R.E.S), an educational club about preventing sexual assault at Chapman, said higher numbers indicate that people are feeling more confident and comfortable to report.

“Just because it’s reported more often doesn’t mean it’s happening more often,” she said. “People are becoming empowered to come forward and report and I think that’s a great thing.”

Yocum Gaffney said she’s proud with the way Chapman handles reports of sexual misconduct.

“There’s always more we can do,” Yocum Gaffney said. “I don’t think it’s perfect but I do feel proud of the work we’re doing.”

The morning after

When the sun rose on Oct. 18, 2014 and a state of sobriety returned to Jessica and Luke, their emotional memories had taken very different forms.

“I kissed her on the cheek and said goodbye. It was very awkward,” Luke said. He gathered his things and quickly left after waking up.

A few minutes after 10 a.m., Jessica sent Luke a text message asking that he didn’t talk about the night before.

“Honestly I’m a little embarrassed… I was horribly (expletive) drunk and in the middle of last night I realized I just wanted a cuddle buddy and that wasn’t exactly what we were doing,” the text from Jessica read. “I know you were super drunk too, but that isn’t what I signed up for.”

Luke responded, apologizing and promising not to tell anyone.

“And yeah I really like you as a person, I don’t wanna make that all weird,” read part of his message back.

With that, Luke thought the situation had been diffused and the night was behind him. But the memory of the night didn’t leave Jessica, who stayed in her room for the next few days, unable to eat, barely able to get out of bed and haunted by physical and emotional pain.

She told her roommate she was upset and that she hadn’t wanted to sleep with Luke, but it wasn’t until the following Monday, in tears on a campus bench, that she would utter the four-letter word that would change her and Luke’s college careers forever: “Rape.”

When a friend saw Jessica crying alone on a campus bench, she rushed over and asked what had happened. Jessica told her friend, who confirmed the incident but declined to be a part of this story, that Luke had raped her.

“You don’t want to say those words, because then it’s real,” Jessica said. “And immediately she was like, ‘I’m taking you to the health center, you need to tell someone.’ I actually wasn’t going to go forward with the information until I had all of my friends being like, ‘You got to do this.’”

At the health center, a nurse told Jessica that she would record the cause of the injuries Jessica sustained as “rough sex,” so that Jessica had time to speak to a confidential reporter.

A confidential reporter is one of the few exceptions to laws that require campus employees and officials to report sexual assault to local law enforcement or a university Title IX investigator, and include therapists, counselors and members of the clergy. At Chapman, the confidential, also called privileged, reporters are counselors at the Student Psychological Counseling Services, Rev. Gail Stearns and Rev. Nancy Brink of the Fish Interfaith Center, along with Smith.

Jessica agreed to meet with Smith the same day.

“She was there to listen and tell me my options,” Jessica said. Jessica said that though she gave her room to decide for herself, Smith strongly encouraged her to report her rape.

“I try to be as neutral as possible,” Smith, who couldn’t comment on specific cases, said of her process. “The crime itself is about power and taking a person’s power from them. It’s very important from my perspective to empower the individual.”

Smith said that she would never discourage reporting. Jessica said that in her case, Smith wholly endorsed it.

“She really wanted me to come forward. Really, really, really wanted me to come forward,” Jessica said. “She thought I had a really good case. And she immediately gave me a slew of facts. Her main reason was basically, ‘You need to do this for other women, because it sounds like this man has done this before, and will do it again.’”

However, documents from the university hearing and testimonies from Luke and witnesses show no evidence that he had previously committed a sexual crime, and aside from once getting caught with marijuana by a resident director, had no known conduct violations.

Luke said he “wasn’t sure” what he expected would happen in Jessica’s dorm room that night, but said he wasn’t expecting sex. In fact, he said, this is why they didn’t use a condom – because he didn’t think to bring one. He said it’s also why he declined a potential sexual encounter that same night.

“I actually received a different text message from a different girl on my way to Jessica’s, but she just wanted to hook up,” Luke remembers, realizing the irony of his actions later that night. “But I spent the night with Jessica, who then I wanted to hook up with.”

Reporting sexual assault on campus

The following week, when Jessica was sharing her experience of rape in confidence with Smith, Luke had little idea that something was wrong, aside from a “huge change in tone” in how Jessica was communicating with him.

It was because Jessica was hardly communicating with him at all. Locked in a state of anxiety, shame and fear, Jessica ignored Luke’s texts of, “Hey what’s up?” and, “It would also be cool to see you!” Instead, she was consumed by tears, nausea and a tough decision.

“For about a week, I mulled it over, and wasn’t inclined to (formally report) whatsoever,” Jessica said. She could barely come to terms with what had happened that night. But the hardest part, she said, was seeing Luke act like everything was normal.

“You know, a lot of the pain that I felt was feeling like I was crazy. Feeling like it wasn’t real,” Jessica said. “And that story that I made up in my brain was validated with the fact that he could laugh and be seen with everyone I knew, and could walk around and I’d see him in the cafeteria or at Dodge. I mean, he lived a floor above me in the same hall.”

Ten days after the alleged rape, Jessica wanted Luke to face consequences for the night that left her traumatized. She decided to report to Yocum Gaffney that Luke had raped her.

2011 Dear Colleague Letter

Yocum Gaffney, who also cannot comment on specific cases, said that though sexual assault investigations have been going on much longer, “everything changed” with the Dear Colleague Letter from the U.S. Department of Education in 2011.

One big change in deciding sexual assault cases was the preponderance of evidence standard. Preponderance of evidence means that the university doesn’t need unequivocal evidence in deciding sexual assault cases, like in a court of law. Evidence is often hard to find in sexual assault cases, but university investigators only need enough evidence to convince them that one version of events is more likely than the other. Yocum Gaffney refers to it as a “more likely than not” measure.

The Dear Colleague Letter also required schools to designate a Title IX coordinator and produce and make widely known how students can report sexual assault. It also meant the Department of Education was making sexual assault a priority and would begin opening investigations.

Yocum Gaffney, who became a Title IX investigator after the 2011 letter, said it was a wake-up call for schools.

“They started opening investigations, they sent out this guidance that, ‘You all need to be doing these things,’ and everybody had to quickly get in line with that,” Yocum Gaffney said. “I think that every college has had their own evolution.”

As of May 1, 55 schools of higher education were under investigation for violating Title IX, which guarantees equal access to education for both genders, in their sexual assault investigations.

Yocum Gaffney explained that the first step in her process as a Title IX investigator is to meet with the alleged victim of a sexual assault, called the “complainant” in Title IX-speak. That’s soon followed with a meeting with the accused assaulter, called the “respondent,” and the gathering of any relevant witnesses or evidence, such as the text messages between Luke and Jessica later obtained by The Panther.

“It was pretty informal, I went into her office, she took extensive notes on what I said,” Jessica said. “She listened to me, she talked to me and she gave me an overview of what was going to happen.”

Jessica said Yocum Gaffney told her in this first meeting that the process would take two to three weeks, maybe less. Jessica said she had been led to believe that if the investigation resulted in a finding, Luke would be expelled. It ended up taking three months and Luke was suspended, not expelled.

Yocum Gaffney said that the university tries to move as quickly as it can in these cases, but it occasionally goes longer than 60 days, especially if it’s reported around winter break, interterm, spring break or summer.

By Thanksgiving break, after Yocum Gaffney had met with Jessica, Luke and any witnesses, she issued her finding: a two-year suspension with trainings and essays required should he choose to return, Luke was incredulous.

“I immediately thought, ‘Well, I’m definitely appealing this,’” Luke said.

In his first meeting with Yocum Gaffney, where he was told about the allegations against him, Luke explained his version of events, and felt confident he would walk away unscathed.

“I thought the whole thing was going to go to rest at this point, there’s obviously no evidence against me,” Luke recalls thinking when he left his first meeting.

But what Luke didn’t realize, is in that meeting with Yocum Gaffney, he may have sealed his own fate.

Yes means yes

Less than three weeks before the fateful event in the early hours of that October day, California Gov. Jerry Brown signed the affirmative consent law. With that, California’s colleges and universities became the first in the nation to apply an “affirmative consent standard” when deciding cases of sexual assault. Also called the “yes means yes” law, affirmative consent “means affirmative, conscious, and voluntary agreement to engage in sexual activity.” Instead of relying off “no” to stop intercourse, the affirmative consent law demands that an individuals engaging in sex must first gain an affirmative “yes” from his or her partner.

The law also makes clear that affirmative consent cannot be given if someone is incapacitated because of drugs or alcohol. It is also not a valid excuse if “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.”

Though Yocum Gaffney said a similar affirmative consent standard has been in place at Chapman well before last September, Luke said he had never heard of the affirmative consent law or standard, before, during or after his sexual assault case. In fact, he said, the first time he ever heard the term was from a Panther reporter in April.

Yocum Gaffney’s notes from her first meeting with Luke reveal his ignorance of the law from which he would be judged.

“He said he asked her if he could kiss her on the cheek and she said yes,” Yocum Gaffney’s notes read. “I asked him if he had verbal consent to engage in sexual intercourse with (Jessica) before doing so. He said that he did not.”

“He said that she was smiling, participating and responding sensually,” another excerpt of Yocum Gaffney’s notes read. “He said that she did not protest and there was no indication that she was not consenting to the activity.”

Yocum Gaffney’s notes show Luke repeatedly using the negative to declare his innocence, which is explicitly excluded in the law.

Yocum Gaffney said that when conducting these investigations, she’s aware that consent isn’t always expressed verbally.
“Another way affirmative consent can happen is if there is – if a reasonable person would view what was happening as active, willing, enthusiastic participation,” Yocum Gaffney said.

When asked if she, as an investigator, acts as that “reasonable person” when judging the actions of the accused, she said “to some degree.”

“I’m going to look at what physically – and unfortunately it has to be pretty specific – what specifically happened. Did the complainant have the capacity to consent? Was that known or should that have been reasonably known? Should the respondent have known that the complainant didn’t have the capacity to consent?” Yocum Gaffney explained.

Yocum Gaffney said that in cases where there isn’t much hard evidence, “that’s where you get into credibility assessment.”

“Does someone answer my questions directly? Do they give me evasive answers? I’ll ask them a question and they don’t really answer that question. There are things you can do to assess the credibility of that person, even if it really is just two people in the room with vastly different accounts of what occurred,” she said

The appeals process

Luke stuck with his original story throughout his appeal in December 2014. It was a conduct board hearing in front of Colleen Wood, the director of student conduct, and Kristen Entringer, a resident director.

“Just telling the truth I thought would vindicate me. Mutually making out, making out went to fingering, then banging,” Luke said.

It did not vindicate him. In December, in front of Wood and Entringer, which Jessica said was “much more serious, almost like police,” Luke and Jessica told their stories again, but in separate rooms.

“They have a hearing where he’s in one room and I’m in another room at the same time,” Jessica said. The two never were in the same room at the same time after Jessica reported Luke to Yocum Gaffney.

“They’re recording each of us, and we’re allowed to listen to each other’s recordings,” Jessica said. “It took a lot longer, like I was there for five hours, and he had way more to say than me.”

It was in this hearing that Jessica’s roommate and suitemate gave testimony to the investigators.

“I was very scared of them. I had to have a friend come in, because I couldn’t do it alone,” Jessica said. Luke didn’t call for anyone to testify.

According to Chapman’s student conduct policies, respondents and complainants in sexual assault conduct hearings have the right to an attorney. However, that attorney “must conform to the same requirements as applied to a Support Person.”

A “Support Person,” according to the conduct code, is someone who may accompany a respondent or complainant to a conduct hearing. However, “Support Persons are not permitted to speak to the members of the conduct body unless directly questioned by the conduct body. Support Persons may not participate directly in the hearing other than quiet communication with the student they are accompanying. This communication must not interfere with the conduct process.”

It was in this conduct hearing that Luke began to fear the case would not work out in his favor.

“Parts of it, I was outraged at certain parts of it,” Luke said. “Basically, she said that that the only reason I came to Chapman was to bang as many girls as I could and I was a raging drug addict. Such blatant things that went after my character, things like that made me upset.”

Luke elected to listen to the other side’s recorded statements during this hearing. Jessica did not.

“I felt it was really based on this girl who’s not really sure, it made me upset that there are such intense decisions based on this nothing evidence,” Luke said.

The outcome of the conduct board hearing was more severe than Yocum Gaffney’s original recommendation, which, Jessica says, is uncommon.

“They prepped me for a lesser sentence,” Jessica recalls. “I honestly think it went up because he just lost it in the room. I read what he said in his interview, and he tried saying that he asked me if he could kiss me, and I said yes. Then he took it back after I said, ‘That’s (expletive).’”

Wood and Entringer issued a three-year suspension, one year more than Yocum Gaffney’s recommendation, and a requirement upon return to take an online sexual assault education program and an online alcohol education program, as well as to complete another Healthy Panther educational session, which is required of all students upon entering Chapman. He also is required to meet with Smith, and write two separate essays on sexual violence on college campuses and reflecting on his experience if he returns to Chapman in December 2017, the soonest he would be allowed back.

A second appeal

The conduct officers had made their decision, but the ordeal was not yet over. According to Chapman’s code of student conduct, a conduct decision can be appealed if it can be shown that a procedural error was conducted that may have prohibited the hearing from proceeding fairly, or if there was not sufficient evidence to show the student conduct code was violated. Other reasons for appeal include new evidence and punishment that does not fit the conduct violation.

Luke decided to appeal the conduct decision on the grounds that he did not violate the conduct code and that the procedure was unfair.

“All I know is that I’m telling the truth, that’s all I can do,” Luke said. “The world is closing in around me. What am I supposed to do? What can I say? I’m sorry I didn’t record her saying yes.”

In his appeal, Luke argued that Entringer, who held his conduct hearing with Wood, thought poorly of him because she had written him up for possessing marijuana.

“All in all this whole situation has been constructed unjustly, putting unwarranted and assumed guilt on me, offering every benefit of doubt in Jessica’s favor and not looking at the complexity and multifaceted issue in the holistic and thorough way that it should be,” reads the concluding paragraph of Luke’s two-page and sometimes rambling appeal, riddled with spelling errors.

Jessica said she was exhausted by the process, which had gone on much longer than she thought, and she wanted to begin healing.

“It seemed pretty crazy that he would call for another hearing even after it got worse for him,” Jessica said.

The appeal was granted, and Jerry Price, dean of students and vice chancellor of student affairs, opened a third investiation after winter break.

After phone calls and in-person meetings, Price upheld the decision given by the conduct board, and informed Luke and Jessica of the final decision in late January to suspend Luke for three years, along with all the educational sanctions upon return.

Privileged and confidential individuals

Graphic by Megan Abba

What’s next?

The final decision was relief for Jessica.

“I felt so relieved, so happy. So much (expletive) came out of this situation that at the end, all I could feel was vindicated and so relieved,” Jessica said.

Speaking on the phone from a small town where he grew up near Spokane, Washington, Luke said he will not return to Chapman.

“I loved Chapman, I had a great time and I loved the film program. But to be taken out by them, they really set my life back,” Luke said. He is now enrolled at the film program at a state college in Washington.

Because Jessica went to the university and not the police to report, Luke’s conduct violation does not follow him out of Chapman or affect his enrollment at other colleges and universities.

Luke is still confused by how the verdict was reached.

“I am in no way guilty,” he said. “I’ve had sex many times with other people as well, and I don’t think I’ve gotten a clear yes, a, ‘Hey, I’m going to put my penis in you now,’ and they say yes or no.”

Jessica said she feels lucky about the outcome of her case, as she said it doesn’t always end up that way for students who report sexual assault. But, she said, she also feels misled.

“I had no idea what was going on (with my case). When I was informed, I was misled,” Jessica said. “I understand, it’s a process, but I mean you are having to deal with a potential assaulter who may be living next to you. It should be quicker.”

She also believes he should have been expelled.

“They had the option to expel him. It was confirmed that he raped me, but they wouldn’t extend it past three years,” Jessica said.

Yocum Gaffney admits that investigations with the university or police do not always end with satisfaction for either side.

“I know sometimes people have great experiences, sometimes they don’t, so I’m aware of that as well.” Yocum Gaffney said. “I mean, they probably say the same things about me as an investigator, and I mean, that’s fine, I honor everyone’s experience.”

However, bad experiences can result in costly litigation for universities. According to data from United Educators, a higher education insurance group that covers thousands of schools nationwide, including Chapman, lawsuits from complainants and respondents in sexual assault cases accounted for $36 million in losses for the organization and its members.

And more often than not, it’s the accused assaulters who file lawsuits, not those who say they were assaulted.

“Students accused of assault brought 54 percent of the claims and comprised 72 percent of the financial losses,” the United Educators report read.

Confusion

Reflecting back on the process, Luke said he still feels confused about how the university reached its verdict, but that he’s trying to put it behind him. He maintains that he had non-verbal consent for the encounter.

“Having sex under the influence and having sex without an explicit yes, that did happen,” Luke said. “She non-verbally said yes, the more common way people express affirmation in sexual experiences.”

Jessica said that what first needs to change is the understanding of consent.

“I think there needs to be more education for what consent truly is,” Jessica said. “You don’t have to be in love to have sex with someone, but the whole communication factor is not something anyone’s educated on and it’s really sad, because I feel like when I try to tell people about it they become defensive. They realize in their own head that ‘I don’t think I’ve made the right decisions in my life’ or ‘maybe this has happened to me and I don’t want to face that.’”

Jessica thinks the consequences of sexual assault should be made clearer in Healthy Panther, a required interactive training on alcohol, drugs, stress and sexual assault. Neither Luke nor Jessica remember hearing about affirmative consent in Healthy Panther at the beginning of their freshman year.

Though she didn’t discuss the affirmative consent law at last year’s Healthy Panther, which at the time was still a bill in the California Assembly, Smith, who composes and directs the training, said she did mention affirmative consent itself.

“Legal said to me, you need to tell them that you need to ask before you begin (intercourse),” Smith said. She also said she made clear that consent can be revoked at any time, just as it’s outlined in the new law. Healthy Panther now addresses the law.

Sex education

Last year, C.A.R.E.S. held a record amount of passive and active programming, including Consent… Get Some, Denim Day, Bystander Intervention and Take Back the Night, where survivors of assault are invited to share their story. Jessica spoke at Take Back the Night last spring.

Smith agreed that the sexual education of many young people is inadequate, and extends the critique to all of society.

“There’s so much underneath sexual development, and I think our culture is so unhealthy I think we are so messed up when it comes to our sexual relationships,” Smith said. “I think sometimes people don’t understand how consent works, capacity works, how affirmative consent works. It’s a huge problem.”

Smith said that if men “don’t understand that what they are doing is rape, then that’s why the law has to be black and white.”

“The rules need to be the rules because it’s a wake up call for some people,” Smith said. “Rules are to keep order in our society, that’s what it’s about. So the rule is, you do not take something that does not belong to you without asking. This is my body and you need to ask. Maybe you were able to steal from someone last week and it doesn’t bother them, but it bothers me.”

This Tuesday, from 10 a.m. to 4 p.m. in the Attallah Piazza, C.A.R.E.S. will be displaying its clothesline project, in which shirts made by students, staff and faculty members are on display to educate about various forms of sexual abuse.

Not knowing the laws

Yocum Gaffney said that of all her investigations that found a respondent guilty of sexual assault, not a single respondent was aware they had done anything wrong.

“To a person, I have not had anyone come in and say, ‘Oh yeah, I did this,’” Yocum Gaffney said. “It’s usually more like, ‘This is my version of what occurred.’ Usually the respondent says that everything was consensual.”

“I don’t think that when a sexual assault occurs, there was a misunderstanding, I don’t buy that,” Yocum Gaffney said. “I don’t think (respondents found guilty) are being dishonest, I think that their perspective is skewed.”

However, Yocum Gaffney said though education on consent is important, it wouldn’t change many perspectives.

“I think we need to be doing whatever we can about consent, but educating people on consent, I don’t think it will stop sexual assault. I don’t think it’s an issue of, ‘I don’t understand, therefore I did this.’ It’s an issue of, ‘I need what I need when I need it,’” Yocum Gaffney said. “I don’t see that light bulb moment of, ‘Oh my, I did this.’ That’s not my experience.”

Yocum Gaffney said “it does need to be clear” that sexual assault comes with real consequences from the university, but that the skewed perspectives are not unique to Chapman students or young people.

“I don’t think it’s clear in society. I think people bring all that crap to the community,” Yocum Gaffney said. “I think that still is something that we have a long way to go as a society to remove from our thinking.”

The aftermath

Luke, who admits it has been an “aging experience,” said he is going to be “weirdly careful” in the future.

“I’m never going to be in a situation that I was in that night ever again. The decision to have sex with her that I made was very impulsive. I feel like, I’m just going to have a lot more foresight in my sexual encounters,” Luke said.

Jessica said she is healing and learning as well, but said that Luke still gets to move on without the trauma she is working through.

“I still feel like I deal with it on a daily basis,” Jessica said. “It takes a lot of energy to go through. He gets to walk away. He’s never going to have to live with that fear on his back,” she said.

Luke and Jessica have not spoken since Jessica first reported her rape last year. But that has not kept them from wondering what the other is thinking.

“I could have probably let this go if – I would’ve not gone through with this if he had sat me down and looked me in the eye and said, ‘That was (expletive) up and I’m sorry,’” Jessica said. “But I’m never going to have that closure of him saying, ‘I’m sorry.’ And I don’t need it, actually, but it’s a lot more respectable in my brain than him saying ‘What? That was fine, that was totally fine.’ That’s how we know we live in a culture that propagates rape. People don’t see it as terrible, they see it as normal and fine.”

“I just want to know why,” Luke said. “I was there, and I just don’t know what’s going on in her head, and how she reflects on it at this point. I certainly don’t know how to figure that out. I don’t know, I’m also trying to think – maybe she does remember it differently too. Maybe she really does believe that she’s right. What would have to happen with two people who completely believe they’re right?”

FOR THE RECORD: Dani Smith, rape crisis counselor, responded to The Panther in an email about a couple of things that Jessica was quoted saying about Smith.

“I would give options and I would encourage survivors to do what was best for them. At the same time, I would encourage a survivor to consider talking to a Title IX investigator. Yet, ultimately, the decision needs to be theirs … I might give statistics to help someone understand that these types of incidents happen … however, I would never say that someone should report for other women. … I would also never say that a person has probably committed this crime in the past. I might cite research findings that report that men who have committed sexual assault often have engaged in this type of behavior in the past, also sharing that many men who commit sexual assaults don’t view themselves as rapists.”

Featured photo courtesy Brandon Wade, from a PSA video aimed to prevent sexual assault. To read about the video, click here.

To read our editorial on consent, click here.

8 Comments

  • Did he verbally consent, and if not, was he raped too, given he had also been drinking? And if not – why not?

    • I’ve pondered this as well, but I think the determining factor is the instigation of the act. Who was taking action, and who was on the receiving end. In the event that the male party were being acted on*, that would reverse the roles.

    • I’ve always been curious about that too: if both parties are intoxicated, then aren’t both parties technically in violation of the sexual assault policy? However, I think because, in this case at least, one party was clearly the initiator of sexual intercourse (which is pretty clear given their own quotes and representations of what happened), then the person who initiated it is the person who would be considered the violating party.

  • There’s a common misconception that simply being intoxicated makes you unable to give consent. This is not necessarily the case. If you read the actual legislation, you are unable to give consent if you are “incapacitated” whether it is from alcohol, drugs, a disability, or another factor. You can be intoxicated without being incapacitated. The issue is that this is super vague, and there’s no solid criteria to differentiate between the two. For this reason, it’s always better to be safe than sorry when initiating a sexual encounter with someone.

    About the whole mutual consent, ‘what if neither gave verbal consent’ thing, in the legislation, affirmative consent does not necessarily mean verbal consent. It means any type of clear affirmative “i want this”, including body language. In this case, the guy was the one taking action (according to him), which can constitute affirmative consent in this case. He was probably not incapacitated from alcohol if he was able to get himself all the way across campus into his friend’s residence and initiate a sexual encounter with her – therefore, his consent is still valid in the eyes of the law.

    Moral of the story is that the yes means yes law is a really great step in the right direction concerning the way this country deals with consent, but it’s still very vague, so it’s the responsibility of anyone initiating a sexual encounter to err on the side of caution.

  • I also put in a sexual assault allegation at Chapman a few years ago..I was intoxicated at an overnight party with friends, but was already asleep (in pajamas, curled up in bed) when it happened. It was not violent, and he was intoxicated too. When I realized what was happening, I kicked the stranger out and he left the house right away (he probably figured out he was in a touchy situation like Luke’s).

    I was honestly ok with the “he said/she said” verdict and a no-contact order because that was the TRUTH. There was no evidence to warrant a suspension or expulsion, and I remember 50% of what happened so how was I to know I didn’t give signs to say yes the way Luke thought Jessica said yes?? When I said NO, he left. Looking back, it really was a huge alcohol fueled misunderstanding and a weird college notion that everyone wants to have sex.

    I’m sorry if Jessica reads these and thinks we don’t side with the victim, but as someone who went through a similar ordeal EVEN I honestly I really can’t say whether Luke is guilty or not, because with alcohol involved on both sides it’s almost impossible to make a verdict. There’s a very very low chance Luke is actually a violent rapist. Luke had no sign given to believe Jessica did not want to engage in behavior. Now the law requires you need that sign. Is this law going to influence the way future hookups go down? We’ll see. We cannot expel/suspend everyone who initiates cloudy drunk sex or we would have to say goodbye to half of America’s undergrad population!!!

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