As regular Minnesota Litigator readers (or people who are generally conscious of current events nationwide and worldwide) know, human society is convulsing with change in the realm of sexual mores. As bizarre as it seems, some men and women have radically divergent feelings and ideas about what is “consensual sex” versus what is “sexual assault” (related posts: here, here, here).

While many of us might find it dumbfounding that two people could engage in intimate sexual contact, one sincerely believing it is consensual and the other sincerely believing that it is not, most of us if not all of us understand and appreciate more common/more subtle interpersonal/social disconnects (e.g., “Stop yelling at me!” “I am not yelling at you.”).

In Doe v. University of St. Thomas (“UST”), now pending before the U.S. District Court for the District of Minnesota (Tunheim, J.), “[John] Doe does not dispute that Jane Doe did not verbally consent to [his] digital penetration [of her vagina]. Doe alleges, however, that Jane Doe did not object to removal of her pants and that Jane Doe stroked his penis, which Doe interpreted as consent to the digital penetration.”

The police did not prosecute Mr. Doe but UST suspended him as a result of this incident. And then Mr. Doe sued UST for:

(1) Declaratory Judgment under Title IX (Count I); (2) Violation of Title IX – Erroneous Outcome (Count II); (3) Violation of Title IX – Deliberate Indifference (Count III); (4) Breach of Contract (Count IV); (5) Breach of the Covenant of Good Faith and Fair Dealing (Count V); and (6) Negligence (Count VI).

UST brought a motion to dismiss John Doe’s complaint, which Judge Tunheim granted, in part, and denied in part. Judge Tunheim threw out all of John Doe’s case (some for good and other claims, “without prejudice”) except the judge allowed Mr. Doe’s claim of negligence against UST to go forward.

Doe’s argument is that UST owed him a duty of care to conduct its disciplinary proceeding in a non-negligent manner and that UST breached that duty.

While a close case, construing [John Doe’s] Amended Complaint in the light most favorable to Doe, Doe pled sufficient facts to allege UST owed him a duty of care…[T]he Amended Complaint sets forth allegations that UST officials made a plethora of errors during the disciplinary process that amounted to a breach of UST’s alleged duty of care. Because Doe has not had access to this information and, therefore, the Court must rely on Doe’s characterization of the proceedings, the Amended Complaint alleged enough facts to give rise to a plausible inference that UST breached a duty of care.

These cases are extremely controversial. Recognizing that, let us all hope that the current cultural shift —  from decades when men acted with sexual impunity to now, when such conduct is widely condemned but its outer parameters ambiguous — should pass as quickly as possible. Let’s hope that we can finally and completely close the chasm of perspectives on what is sex and what is violence.

One thought on “Our Age of Consent (or Not)

  1. patrick burns

    Schools owe the same duties to all students. Due process is severely lacking in proceedings and investigations at the university level. They should outsource the work or defer to police and prosecutors.


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