Mark Hathaway, a California attorney who has dealt with several no-complainant complaints, says that the zeal with which these complaints are sometimes handled can be wounding psychologically to both the accused and his partner. Hathaway represented a young man who was in bed with his girlfriend in her dorm room. They were fooling around but not having intercourse. In the next bed was the girlfriend’s roommate and a male student. They thought that the girlfriend had had too much to drink to be able to consent to sexual activity. They mentioned their concern to a resident adviser, who was obligated to report it to the Title IX office, which then opened an investigation. “The girl says nothing happened; it was all consensual,” Hathaway told me. “But the school still goes forward.”
Because the school considered her a witness, the girlfriend was compelled to answer questions; had she refused to cooperate, she could have been disciplined. (If she had been the complainant, she would have had the right to decline.) Hathaway told me she “was in tears because she was required to explain to total strangers intimate sexual details.” The school concluded, despite her statements to the contrary, that she couldn’t have consented to the sexual encounter, and suspended her boyfriend for a semester. He was also required to attend eight sessions with a therapist on the topic of alcohol and sexual relationships.