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Massachusetts colleges have a duty to protect students from drunken sexual assault, but that duty only goes so far, court rules

The Supreme Judicial Court ruled today that what one Northeastern student claimed was a sexual assault while she was drunk was not Northeastern's fault.

But in its ruling today, the state's highest court said Northeastern went too far in its legal argument that the death of in loco parentis - the theory that colleges have broad say over the lives of their students - means schools can never be held responsible when one student sexually attacks another while drunk.

In fact, schools do have a role to play to preventing or acting on such attacks, especially among vulnerable freshman - but only if they are warned or somehow know in advance that something like that might happen - the court ruled.

In the case before it, the justices considered the case of two freshmen who got drunk at a Halloween party in 2013 - the woman so drunk she started throwing up in a bathroom and the man, also drunk, if not to that extent, who volunteered to walk her back to her room, only to take her to his room, where they then had sex.

A student disciplinary board decided twice that no sexual assault took place, that the woman had never passed out - an unconscious person cannot consent to sex - and that she had no objected to the acts until afterward, when she complained to friends. Northeastern Police also declined to bring charges or forward the case to Boston Police.

The woman sued Northeastern, arguing it had a duty, both under a contract with students and under the federal Title IX ban on sexual discrimination, to protect her and that it failed to do so.

The court allowed as how two Northeastern resident assistants - both sophomores - did not exactly shine that night, because they allowed the party, in which underage students were swigging alcohol - to continue. But, the court continued, one did the right thing when the woman began throwing up and checked on her to make sure she was OK - and found she was being assisted by other students, who were giving her water and crackers and staying with her. Similarly, a proctor at the dorm the two both lived in did nothing wrong when they pair checked in - while they may have appeared drunk, they did not appear to be on the verge of collapse, the court said.

As part of its defense, Northeastern argued that illicit alcohol consumption is no longer something universities can actively deal with, under the current standard that students are, in fact, adults capable of making their own decisions and mistakes.

Not so fast, the SJC countered:

It does not follow, however, that a student relinquishes any reasonable expectation of protection from his or her college or university if the student becomes intoxicated. Unlike some courts, we have not endorsed the view that the end of the era of in loco parentis justified an effective "judicial grant of collegiate immunity for the repercussions of student alcohol consumption."

In Mullins, we rejected that position, and observed that "the fact that a college need not police the morals of its resident students . . . does not entitle it to abandon any effort to ensure their physical safety."

The court continued:

While universities and colleges nonetheless are "not responsible for monitoring and controlling all aspects of their students' lives," the contemporary paradigm of the university student relationship recognizes that students' "right to privacy and their desire for independence may conflict with their immaturity and need for protection." See Dzung Duy Nguyen, 479 Mass. at 451-452. Accordingly, we reject the defendants' blanket contention that, necessarily, universities have no special relationship with voluntarily intoxicated students.

Given these efforts, it is foreseeable that a student will reasonably rely on his or her college or university for aid in the event of an alcohol-related emergency. ...

Reliance is particularly foreseeable for first-year students like the plaintiff, whom Northeastern required to live on campus in its dormitories.

And so the court formulated a rule for colleges to follow:

After weighing these considerations, we conclude that a university has a special relationship with its students, and a corresponding duty to take reasonable measures to protect students from harms associated with alcohol-related emergencies, in the following, narrow circumstances. When a college or university has actual knowledge of conditions that would lead a reasonable person to conclude that a student on campus is in imminent danger of serious physical harm due to alcohol intoxication, and so intoxicated that the student is incapable of seeking help for him- or herself, the college or university has a duty to take reasonable measures to protect that student from harm.

Turning back to the specifics of the suit, the court said Northeastern had no "actual knowledge" that the woman was in "imminent danger of serious physical harm due to alcohol intoxication" that night.

She turned down offers of help from an RA, female students at first offered to take her back to her dorm, she texted friends several times throughout the night, even after winding up in the man's room, without indicating any imminent danger. Also, the court continued, neither she nor her friends indicated any concerns about the man beforehand, campus police had no record that the man had ever done anything wrong, and there is no evidence that any of the RAs or the dorm proctor had any inkling he was bringing her back to his room for sex.

There is no indication in the record that A.G. [the man] or any other attendee acted inappropriately towards the plaintiff at the party. Before, during, and after the party, she was capable of communicating with other students, both in person and via text message, and was managing her intoxication. Toward the end of the party, Smith [one of the RAs] was told that two female students would escort the plaintiff back to her dormitory. Based on these observations, it would not have been foreseeable that A.G. would assault the plaintiff later that evening.

And the proctor who checked them back into their dorm?

There is no indication that A.G. was acting aggressively or sexually towards the plaintiff, or that the plaintiff appeared to be dangerously intoxicated at that point. The mere presence of an intoxicated young woman in the company of an intoxicated young man as they returned to their shared residence hall does not, without more, suggest that a crime or physical harm is imminent.

And so:

Considering all of the information that Northeastern had at its disposal, it was not reasonably foreseeable that the plaintiff was in peril at the time of the alleged assault.

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Comments

I agree that a campus sexual assault or alleged sexual assault is definitely a police matter and not a university matter.

Northeastern University Police, which is an actual police department, declined to go forward with the case.

is every sexual advance, successful or otherwise, now an assault

part of becoming an adult is learning to accept responsibility for one's own choices

sadly, most of us have to learn that through some tough lessons

I feel badly for both of the young people in this situation

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I'm glad I'm not a young person today (or a college administration trying to figure out how to supervise them.) Navigating all of this seems very complicated. It seems too often where regret over consensual sex turns into "assault" the next day. I somehow made it though college without (a) ever getting so drunk that I would make a poor decision or (b) having sex with anyone that I would later regret. It's really not that difficult.

I often wonder whether kids these days are so coddled by their parents and by society that they are less prepared than prior generations to function on their own. I'm definitely seeing a difference, but perhaps it's also just me getting older. Who knows.

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"I often wonder whether kids these days are so coddled by their parents and by society that they are less prepared than prior generations to function on their own."

You hit the nail absolutely on the head with this. Today, far too many affluent middle class women, raised far from the urban streets, expect the college campus to be an extension of their comfortable, overprotected homes. The price of women’s modern freedoms is personal responsibility for vigilance and self-defense. Many bold, liberated women of the 60s and 70s instinctively understood this. The modern college student, not so much.

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Is this victim-blaming bullshit?

It seems to me that too many affluent, middle class men, raised far from anything that resembles consequences, seem to have difficulty with the concept of affirmative consent.

I managed to make it through college without raping anyone. Your kid can, too.

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you know nothing about me, and you assumptions about me are wrong

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I'll second this comment.

I didn’t make it through college without being raped by someone I kissed earlier that night. Never wanted sex with him but he helped himself while I was passed out drunk later that night. Hours later. It happens. Don’t victim blame.

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firmly placed on women to be vigilant? Shouldn't there be responsibility of young men to not be rapey assholes?

A student disciplinary board decided twice that no sexual assault took place, that the woman had never passed out - an unconscious person cannot consent to sex - and that she had not objected to the acts until afterward, when she complained to friends. Northeastern Police also declined to bring charges or forward the case to Boston Police.

part of becoming an adult is learning to accept responsibility for one's own choices

Yes, and one of those choices is having sex with someone who isn't capable of giving affirmative consent.

Ready to accept that responsibility now?

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Is "in loco parentis" for colleges and students actually written in state/federal laws, or is it a construct made up by judges?

It used to be explicit in university policies, when my mom started living in residence halls in 1960. But a lot has changed.