Louis Theroux: The Night in Question

This programme contains scenes which some viewers may find upsetting,

and some strong language from the start.

I get woken by her slapping me, and she said we shouldn't have had sex,

and her friends shouldn't find out. And at around...

...4pm, 5pm, she sent me a text message saying,

"Saif, you're a piece of shit."

A few days later, I found out that she's accusing me of rape.

I was making a documentary about young men

accused of sexual assault on American campuses.

Are you going to apologise to the victim?

There are a lot of guys who have been told

that they're the best and that they can have whatever they want,

and I think the idea that a woman might not want to sleep with them

can be kind of jarring.

Recent years have seen a huge increase in reported cases

of sexual violence in universities.

There is also now a community that believes there's

been an overreaction that tramples on due process.

I don't know what accounts for this moral hysteria,

but I think Yale is fully in the grip of it

and I think that their procedures are an obscene joke.

For six months, I'd followed a young man called Saif Khan

through his university investigation,

attempting to piece together his story

and trying to figure out where the truth lay.

It sounds like you want everyone to believe you.

Not everyone.

Which... that's just not realistic.

Of course, but we aren't...

...entertaining the concept that she could have lied.

A statement on confidentiality, a timely warning, and the letter.

I was with Saif and a lawyer who is advising him - Margaret Valois.

Here.

That's the... Department of Education one.

In 2015, while at Yale, Saif was accused of raping a fellow student.

Suspended from campus, he was prosecuted

but found not guilty in a criminal trial.

Tell me where you'd like to start.

Sure. So...

I mean, Yale responded on the 21st.

More than two years on,

he was awaiting the outcome of a university Title IX investigation

into the same incident before he could resume his studies.

So, Margaret, there is now a Title IX in process, is that correct?

Yes. At Yale.

Where is Saif at right now?

He's in the same place he was in November of 2015.

It's just like he's stuck at day one.

Now, of course, there has been a criminal trial,

and obviously things happened there and he was acquitted of all charges.

But as far as the campus investigation goes,

we don't have any further information

that they're sharing with us since the day he was suspended.

A neuroscience major, Saif's life changed

due to events on October 31st, 2015.

Many of the details of that night are disputed.

What is agreed is that Saif and a female fellow student

both attended a Halloween party, then met up at a concert,

eventually spending the night together.

The following morning,

she told friends she'd been sexually assaulted.

The alleged victim had not agreed to speak to me, but I'd read police

notes of interviews with her and other witnesses.

At a house rented by the production,

I asked Saif about the night in question.

Yale, as I understand it,

follows a policy of clear and continuing unambiguous consent. Yes.

I mean, are you on board with that?

Yeah. Yeah.

And that's my version of events.

That's how things happened.

So, around ten o'clock,

I think she arrived with some friends at the party

and, in her version, I think,

she says she had a couple of strong drinks

and then some sips or some shots of an unidentified liquor.

I think she also said she had two glasses of white wine

and was beginning to feel quite intoxicated.

I never witnessed her drinking anything...

...so, I guess, I'll take her word for what she drank.

We move things onto... We were talking at the YSO show,

the Yale Symphony Orchestra event.

Her allegation is, at this point, she's really quite drunk. Mm-hm.

And it's inside that she vomits for the first time.

So we were sitting down, we were flirting,

and then, out of the blue, she, to the side, just, you know,

in the alleyway, she vomited.

Was it your impression that she was drunk at this point? No, no.

She looked just like any other person, just buzzed,

just enjoying themselves.

She was... She was normal.

And then, a little after midnight, I think...

Quite a while after midnight.

...you arrive back at the dorm.

Yeah. I opened her door and she said, "Saif."

And she gave me this look, as if, expecting, and a tilted head.

And so I was like "Yeah?"

And she was like, "Do you want to come with me?"

I just said, "Sure."

And so we went into her room.

At this point in her account, it's blurry.

She alleges she was extremely drunk.

She vomited again and more or less collapsed on the bed.

And then, in the night, was aware of you on top of her,

kind of manhandling her, with her head hanging off the bed.

And then, the next morning, awoke to find two used condoms,

and the feeling of having, you know, kind of, had sex.

She had the impression she'd been violated.

What happened in my recollection is that she started

taking her clothes off,

we were getting intimate, and so it led towards me taking my pants off.

And she started giving me oral sex.

At one point, she asked me what I really liked

and I said I liked going deep.

And so she said she hadn't tried that,

and so she...

...tried to take me in deeper.

She gagged and...

...to the side, towards the door, she vomited again.

And so...

...we clean up the mess, I took off my condom, threw it to the corner.

She grabbed a white towel to go shower.

I'm on the couch and my long term

open-relationship girlfriend called me.

We talk almost every night and...

...the conversation went on for about two and a half hours.

Two and a half hours, that's a long time.

So she was in the bathroom for some of it, then she was on the bed.

What was she doing?

Had she fallen asleep?

I don't recall because it was dark, so I didn't really know.

You come off the call, what happens?

She woke up, saying, "Hey, come cuddle with me."

And so I went to the bed.

She got on top of me

and, at that moment, I'd be generous to say if I lasted 20, 25 seconds,

and so I just went to sleep.

I was just dead tired.

But a few days later, I found out that she is accusing me of rape.

In your recollection, she was with it, conscious,

fully consenting and not incapacitated?

Yes.

Who wants to win a T-shirt?

Right there, come on up, come on up.

I need one more, right over here, somewhere right over there.

Right there. Come on down.

Let's give these two a big, big round of applause.

Come on, give it up.

So, here's the deal.

You're on a date. Okay.

Date's going so well, you want to give your partner a kiss.

You like this, all right, very good.

So...

How do you know when it's the right time to make your move?

For freshmen throughout the US, the start of the school year

involves orientation classes on sexual consent.

Now, Joey, once you get the look,

do most people stop and say, "May I kiss you?"

Or do most people just go for it?

What do you think most people do?

Probably go for it.

All right, let's see what the room thinks.

Go for it.

Policies on consent vary, but most require each sex act

to be clearly agreed to.

For instance, why don't we just ask,

"Can I kiss you?" - instead of going for it?

If you agree with that, say, "Yes, I do."

Yes, I do.

To investigate allegations of misconduct

and take disciplinary measures,

colleges have special Title IX administrators,

so named after the federal law

against sexual discrimination in education.

I'm Louis. Nice to meet you, Jordan.

Jordan Draper is Title IX coordinator

at the College of New Jersey.

These cases are not easy. They're very hard.

There's a lot of grey.

There is this pressure of hook-up culture.

There's pressure or involvement of alcohol,

and it's all this kind of grey, nuanced area

that makes it...

...unclear for students to be able to really understand,

"Does this person want to engage in this activity?"

And those are the cases that we - myself and my colleagues -

are kind of seeing across college campuses.

So is it the case that there could be an incident that would not

meet a criminal standard of being a sexual assault,

but that in a Title IX sense would be a sexual assault?

Yes, absolutely... That's correct?

...and that's because of the standard, so to...

Information to show beyond a reasonable doubt that something

happened compared to more likely than not is just drastic.

You need a lot less information for the college process and again

that's because you're just removing somebody, potentially,

from your institution as opposed to jail.

But recently, under President Trump, there has been pushback amid claims

the Title IX process is Kafkaesque and overreaching.

The truth is that the system established by the prior