Matter of Doe v. Pratt Inst.

Oct 20, 2025
Versions:

Petitioner Alan Sash, Esq. Bushell, Sovak, Kane and Sash LLP, 274 Madison Avenue, Suite 1500, New York, NY 10016

Respondent Jennifer A. McGlaughlin, Cullen and Dykman LLP, 333 Earle Ovington Blvd, 2nd Floor, Uniondale, NY 11553

Steven Z. Mostofsky, J.

The following e-filed papers read herein: NYSCEF Doc Nos.:

Notice of Petition, Petition, Notice of Cross Motion, Cross-Motion, Affirmations, and Exhibits Annexed 13-58; 62-98

Opposing Memoranda of Law and Exhibits Annexed 99-102

Reply Memoranda of Law and Exhibits Annexed 104-111

In this CPLR article 78 proceeding, petitioner John Doe (“Petitioner“), a current student of respondent Pratt Institute (“Pratt“), petitions the Court for an order, in essence, pursuant to CPLR 3001 and 7803 (3),1 declaring that, in connection with the complaints of Jane Roe (another student at Pratt) (the “Complainant“) to Pratt about him: (1) Pratt misapplied its Title IX and Sexual Misconduct Policy, issued June 1, 2023 (the “sexual misconduct policy“), as against him; (2) Pratt acted in an arbitrary and capricious manner; and (3) Pratt‘s final decision against him, as set forth in the Appeal Panel Decision, dated October 1, 2024 (the “appeal panel decision“), lacked a rational basis; and, upon the finding of one or more of the foregoing, vacating Pratt‘s sanctions imposed on Petitioner, pursuant to the appeal panel decision, and expunging all references to the underlying charges from his academic record at Pratt.2

Before answering the petition, Pratt moved, pursuant to CPLR 3211 (a) and 7804 (f),3 to dismiss the petition, submitting (among other documents) the administrative record with its motion. The Court heard oral argument on September 18, 2025 and reserved decision.

Appeal Panel Decision4

The precise findings of the appeal panel decision are important, and for this reason, their relevant portions are reproduced below:

“[T]he panel [below] focused on the admissions by both the [Petitioner] and the Complainant . . . who agreed to engage in ‘sleeping sex,’ a violation of Pratt‘s Title IX and Sexual Misconduct Policy. Given the fact that the [Petitioner] admitted to violating Pratt‘s Title IX and Sexual Misconduct Policy by engaging in sleep[ing] sex, the [Petitioner‘s] argument regarding the hearing panel‘s discussion of the timeframe of consent is therefore moot and has no bearing on the outcome.

We find the [Petitioner] and the Complainant testified to agreeing to engage in ‘sleeping sex.’ This agreement on its face is a violation of the policy. The policy explicitly outlines that ’Someone who is incapacitated cannot consent. A person is incapacitated when the person cannot make a rational, reasonable decision because the person lacks the ability to understand their decision. A person can become incapacitated as a result of, among other things, physical or mental impairment, involuntary physical constraint, sleep, unconsciousness, or consumption of alcohol or other drugs.’ This language is consistent with New York State Education Law Article 129-B § 6441 (2) (d) which states that consent cannot be given when a person is incapacitated.

The [Petitioner] cites a text message and the letter from the Complainant as support of his assertion of consent, but rather this evidence proves that the parties intended to violate the policy. Both the [Petitioner] and Complainant testified that following their communication(s) on ‘sleeping sex,’ the [Petitioner] penetrated the Complainant while she was sleeping. This testimony is an admission of violating the policy, and we therefore do not see any procedural irregularities that affected the outcome. The hearing panel correctly found that the [Petitioner] violated the policy.

* * *

The parties both admit to an agreement to engage in ‘sleeping sex.’ Although the parties dispute the terms of this agreement, the testimony supports an agreement to engage in ‘sleeping sex.’ This agreement is a direct violation of the Pratt Title IX and Sexual Misconduct Policy and the New York State Education Law. Through their testimony, both parties indicated they believed that they could engage in this activity which indicates their lack of understanding of the requirements of consent and incapacity under the policy and the law. The hearing panel correctly found that the [Petitioner] violated the policy.”

(Appeal Panel Decision, pages 1 and 2) (emphasis in the original).

To understand the rationale for the foregoing findings, a brief explanation of the underlying events is warranted. While freshmen in Pratt, Petitioner (a male) and Complainant (a female), starting dating in September 2022 and progressed to a steady sexual relationship in October 2022.5

In November and/or December 2022, Petitioner (while awake) had engaged in one or more instances of initiating sexual intercourse by penetrating Complainant with his penis while the latter was asleep.6

From a medical standpoint, the Petitioner was actively practicing “somnophilia,” which “generally refers to a sexual interest in engaging in sexual activity with a sleeping person,” whereas Complainant was passively experiencing “dormaphilia” as “the recipient of sexual activity while asleep.”7

Pratt‘s sexual misconduct policy defines “[s]exual assault” as “having or attempting to have sexual contact with another individual without consent or where the individual cannot consent because of ... temporary ... mental incapacity.”8

The sexual misconduct policy and the corresponding provision of the “Enough is Enough Law” (Education Law § 6441 (1)) defines (in relevant part):

“Affirmative consent [as] a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in ... sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent.”9

More fundamentally, the sexual misconduct policy — and the corresponding provisions of the “Enough is Enough Law” (Education Law § 6441 (2) (a) and (c)) — caution that “[c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act,” and that “[c]onsent may be initially given but withdrawn at any time.”10

As noted, the appeal panel found that Petitioner violated Pratt‘s sexual misconduct policy because, on at least one occasion, he sexually penetrated Complainant while the latter was sleeping.11

In this proceeding, Petitioner contends that he did not (and could not) violate the policy because, in a prior text message (which was exchanged at least 24 hours before his initial encounter with Complainant for the somnophilic/dormaphilic sex), Complainant communicated to Petitioner about — and consented in some undetermined future to submit to — such sex with him.12

Reduced to its essence, Petitioner‘s argument is that a contemporaneous consent to the somnophilic/dormaphilic sex should not be required where, as here: (1) the parties are known to each other and are in a pre-existing sexual relationship, and (2) they previously discussed and generally consented to this particular type of sexual practice.13

Petitioner argued to the appeal panel that “neither Pratt policy nor any law mandates [that he must] reconfirm consent [to the somnophilic/dormaphilic sex] that was [previously] given [to him by Complainant] voluntarily and knowingly.”14

Further, Petitioner pointed out that, as a practical matter, his waking up Complainant merely to obtain her contemporaneous consent would have defeated the fundamental purpose of this paraphilia which depends on her remaining unconscious before his penile penetration of her.15

Standard of Review

As a threshold matter, although Pratt denominated its pre-answer motion as one, pursuant to CPLR 3211 (a) and 7804 (f), to dismiss the petition, it presented arguments addressed to the merits of so much of the appeal panel decision as found Petitioner guilty of sexual assault and imposed discipline. Where, as here, “the dispositive facts and the positions of the parties are fully set forth in the record, thereby making it clear that no dispute as to the facts exists and that no prejudice will result from the failure to require an answer, the court may reach the merits of the petition.” Matter of Pittman v Adelphi Univ., 240 AD3d 908, 910 (2d Dept 2025) (internal quotation marks omitted).

“[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline . . . of their students.” Matter of Ibe v Pratt Inst., 151 AD3d 725, 726 (2d Dept 2017) (internal quotation marks omitted). “Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously, or whether it substantially complied with its own rules and regulations.” Id. (internal quotation marks omitted). “The court must then review whether the university‘s determination is rationally based upon the evidence; otherwise[,] the determination is arbitrary and capricious.” Matter of Warner v Elmira Coll., 59 AD3d 909, 910 (3d Dept 2009).

“Moreover, a student subject to disciplinary action at a private university is not entitled to the full panoply of due process rights.” Matter of Aryeh v St. John‘s Univ., 154 AD3d 747, 748 (2d Dept 2017) (internal quotation marks omitted). “Such an institution need only ensure that its published rules are substantially observed.” Id. (internal quotation marks omitted).

Discussion

The appeal panel‘s determination that Petitioner violated Pratt‘s sexual misconduct policy was rationally based on the record evidence, and was not arbitrary or capricious. Petitioner admitted on the record that, on at least one occasion, he sexually penetrated Complainant while the latter was asleep. That was sufficient, in and of itself, to constitute a violation of Pratt‘s sexual misconduct policy and the underlying legislation in Education Law § 6441 (2) (d) that “[c]onsent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep” (emphasis added).16

Matter of P.C. v Stony Brook Univ., 43 NY3d 574, 581-582 (2025); Matter of Jacobson v Blaise, 175 AD3d 1629, 1632 (3d Dept 2019), lv denied 35 NY3d 901 (2020), cert denied 141 S Ct 258 (2020).

Although petitioner makes much of the fact that Complainant previously and generally consented to the future somnophilic/dormaphilic sexual encounters, her previous and general consent did not absolve Petitioner from obtaining from her contemporaneous and specific consent to the particular encounter. Considering Petitioner‘s on-the-record admission that on at least one occasion he sexually penetrated the Complainant while the latter was asleep, the appeal panel‘s conclusion that she lacked the capacity to provide a contemporaneous and specific consent to the particular encounter was not arbitrary or capricious. As noted, Pratt‘s sexual misconduct policy provided (in accordance with by Education Law § 6441 (2) (a) and (c)) that “[c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act,” and that “[c]onsent may be initially given but [may be] withdrawn at any time.17

Criminal law (which uses a much higher standard of proof than the lower, preponderance of evidence standard, which was applied in this case) is in accord. People v Wells, 138 AD3d 947, 949-950 (2d Dept 2016) (“Physical helplessness means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. This Court and others have found that definition to include a victim who was asleep at the beginning of the incident.“) (internal citations and quotation marks omitted; emphasis added), lv denied 28 NY3d 902 (2016); People v Manning, 81 AD3d 1181, 1181 (3d Dept 2011) (”physical helplessness is defined broadly and may include a sleeping victim“), lv denied 18 NY3d 959 (2012); People v Copp, 169 Misc 2d 757, 759 (Rochester City Ct 1996) (“It is axiomatic that sleep is the antithesis of awareness. It is that periodic state of rest in which consciousness is suspended. Whether induced by drug, or achieved by normal processes, being in the state of sleep renders one unable to make a conscious choice.“) (emphasis added). See also Penal Law § 130.00 (7) (“‘Physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.“).

Petitioner‘s citation in his notice of appeal to R v J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 (Can.), reversing R. v J.A. (2010), 100 O.R.3d 676 (Can. Ont. C.A.), a Canadian criminal prosecution arising out of the bondage/domination session which started with the consensual erotic asphyxiation of the submissive female by the dominant male and was followed, during her ensuing loss of consciousness, by the dominant male‘s non-consensual sex with her, is (in Petitioner‘s words) “worth review from a pragmatic, logical, rational, and legal basis.”18

According to Petitioner, “[t]he appellate courts that considered the case diverged in their analysis of this issue, with an appellate court finding that there was ‘no basis for holding that, as a matter of general principle, a person cannot legally consent in advance to sexual activity expected to occur while the person is either unconscious or asleep.‘”19

Petitioner failed to note, however, that, on further appeal, the Supreme Court of Canada reversed and reinstated the dominant male‘s conviction for sexual assault of the submissive female. In that regard, the Supreme Court of Canada held that the legislative ”definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.” R. v J.A., 2 SCR 440 (Canada, Ontario, Sup Ct, 2011) (emphasis added).20

The Court considered Petitioner‘s remaining contentions and found them unavailing or moot in light of its determination. All relief not specifically granted herein is denied.

Conclusion

Accordingly, it is hereby

ORDERED that in Seq. No. 1, the petition is denied; and it is further

ORDERED that in Seq. No. 2, Pratt‘s motion to dismiss the petition is granted and the proceeding is dismissed in its entirety without costs and disbursements; and it is further

ORDERED that Pratt‘s counsel is directed to electronically serve a copy of this Decision and Judgment with notice of entry on Petitioner‘s counsel and to electronically file an affidavit thereof with the Kings County Clerk.

This constitutes the Decision and Judgment of the Court.

E N T E R,

Hon. Steven Z. Mostofsky

Justice, Supreme Court

Footnotes

Notes

1
Footnote 1:CPLR 7803 (3) applies where, as here, the issue is “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” Petitioner‘s additional request, in effect under CPLR 7804 (4), that Pratt‘s determination “was not supported by substantial evidence” cannot be considered because the latter standard applies to public colleges, whereas Pratt is a private college. See Matter of Doe v Cornell Univ., 163 AD3d 1243, 1245 (3d Dept 2018), aff‘g 59 Misc 3d 915, 917-936 (Sup Ct, Tompkins County 2017); Matter of Doe v Skidmore Coll., 152 AD3d 932, 935 (3d Dept 2017); Matter of Rensselaer Soc. of Engineers v Rensselaer Polytechnic Inst., 260 AD2d 992, 993 (3d Dept 1999). Footnote 1:CPLR 7803 (3) applies where, as here, the issue is “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.” Petitioner‘s additional request, in effect under CPLR 7804 (4), that Pratt‘s determination “was not supported by substantial evidence” cannot be considered because the latter standard applies to public colleges, whereas Pratt is a private college. See Matter of Doe v Cornell Univ., 163 AD3d 1243, 1245 (3d Dept 2018), aff‘g 59 Misc 3d 915, 917-936 (Sup Ct, Tompkins County 2017); Matter of Doe v Skidmore Coll., 152 AD3d 932, 935 (3d Dept 2017); Matter of Rensselaer Soc. of Engineers v Rensselaer Polytechnic Inst., 260 AD2d 992, 993 (3d Dept 1999).
2
Footnote 2:In accordance with the appeal panel decision (NYSCEF Doc No. 22, page 2), Petitioner was “suspended from student housing for one academic year, and [was] placed on social probation for one academic year. All suspensions and the probation shall begin immediately. In addition, [Petitioner was] also required to complete training on Pratt‘s Title IX and Sexual Misconduct Policy by January 15, 2025, with failure to complete the training resulting in suspension for the Spring 2025 semester.” In addition, the appeal panel decision recommended (at page 3 thereof) that both Petitioner and Complainant “can benefit from counseling due to their lack of understanding of affirmative consent under Pratt‘s policy and New York Education Law [article] 129[-]B.” Education Law article 129-B, known as the “Enough Is Enough Law” (see L 2015, ch 76), provides for the “implementation by colleges and universities [both public and private] of sexual assault, dating violence, domestic violence and stalking prevention and response policies and procedures” (unnecessary capitalization omitted). Footnote 2:In accordance with the appeal panel decision (NYSCEF Doc No. 22, page 2), Petitioner was “suspended from student housing for one academic year, and [was] placed on social probation for one academic year. All suspensions and the probation shall begin immediately. In addition, [Petitioner was] also required to complete training on Pratt‘s Title IX and Sexual Misconduct Policy by January 15, 2025, with failure to complete the training resulting in suspension for the Spring 2025 semester.” In addition, the appeal panel decision recommended (at page 3 thereof) that both Petitioner and Complainant “can benefit from counseling due to their lack of understanding of affirmative consent under Pratt‘s policy and New York Education Law [article] 129[-]B.” Education Law article 129-B, known as the “Enough Is Enough Law” (see L 2015, ch 76), provides for the “implementation by colleges and universities [both public and private] of sexual assault, dating violence, domestic violence and stalking prevention and response policies and procedures” (unnecessary capitalization omitted).
3
Footnote 3:CPLR 7804 (f) provides, in relevant part, that “[t]he respondent may raise an objection in point of law . . . by a motion to dismiss the petition, made upon notice within the time allowed for answer.” Footnote 3:CPLR 7804 (f) provides, in relevant part, that “[t]he respondent may raise an objection in point of law . . . by a motion to dismiss the petition, made upon notice within the time allowed for answer.”
4
Footnote 4:The appeal panel decision, dated October 1, 2024, reviewed and, in part, vacated the lower-level hearing panel decision, dated August 1, 2024 (the “hearing panel decision“) (NYSCEF Doc No. 19). As such, the hearing panel decision has no bearing on the facts of this proceeding which, at Petitioner‘s request, seeks judicial review of the appeal panel decision. Footnote 4:The appeal panel decision, dated October 1, 2024, reviewed and, in part, vacated the lower-level hearing panel decision, dated August 1, 2024 (the “hearing panel decision“) (NYSCEF Doc No. 19). As such, the hearing panel decision has no bearing on the facts of this proceeding which, at Petitioner‘s request, seeks judicial review of the appeal panel decision.
5
Footnote 5:Verified Petition, dated January 21, 2025 (NYSCEF Doc No. 1) (the “petition“), ¶ 5 (“[Petitioner] was a first-year undergraduate student at Pratt in fall 2022 when he met [Complainant], also a first-year undergraduate student at Pratt. They were both legal adults at the time they met.“); ¶ 6 ([Petitioner] and [Complainant] entered into an intimate relationship in September 2022 and began dating and having sexual intercourse together in October 2022.“). Footnote 5:Verified Petition, dated January 21, 2025 (NYSCEF Doc No. 1) (the “petition“), ¶ 5 (“[Petitioner] was a first-year undergraduate student at Pratt in fall 2022 when he met [Complainant], also a first-year undergraduate student at Pratt. They were both legal adults at the time they met.“); ¶ 6 ([Petitioner] and [Complainant] entered into an intimate relationship in September 2022 and began dating and having sexual intercourse together in October 2022.).
6
Footnote 6:Petition, ¶ 7 (“In November and/or December 2022, . . . [Petitioner] . . . in fact engaged in . . . the act[s] of consensually having sex with [Complainant] while [the latter was] sleeping.“) Footnote 6:Petition, ¶ 7 (“In November and/or December 2022, . . . [Petitioner] . . . in fact engaged in . . . the act[s] of consensually having sex with [Complainant] while [the latter was] sleeping.“)
7
Footnote 7:Elizabeth T. Deehan & Ross M. Bartels, A Qualitative Exploration of Sleep-Related Sexual Interests: Somnophilia and Dormaphilia, Sexual Abuse, 2023, Vol 35(3): 288-312, page 288 (defining “somnophilia“) and page 289 (defining “dormaphilia“) (https://journals.sagepub.com/doi/10.1177/10790632221098359 [last accessed Oct. 10, 2025]).

The phrase “sleeping sex” (as was used in the appeal panel decision and in the petition), was incorrect because it means “sleep sex” or “sexsomnia,” which is a sleep disorder characterized by sexual behaviors committed by the actors while asleep and beyond their control (automatism). See Alexandria Organ & J. Paul Fedoroff, Sexsomnia: Sleep Sex Research and Its Legal Implications, Curr Psychiatry Rep (2015) 17:34 (https://link.springer.com/article/10.1007/s11920-015-0568-y [last accessed Oct. 12, 2025]).

In contrast to a sexsomniac, a somnophile is typically a “male[ ] who [is] attracted to a sexual object, unable to resist [his] advances.” See Mark Pettigrew, Somnophilia and Sexual Abuse through the Administration of GHB and GBL, Journal of Forensic Sciences, 2019 Jan; 64(1): 302-303, page 302 (https://onlinelibrary.wiley.com/doi/10.1111/1556-4029.13812 [last accessed Oct. 12, 2025]). Footnote 7:Elizabeth T. Deehan & Ross M. Bartels, A Qualitative Exploration of Sleep-Related Sexual Interests: Somnophilia and Dormaphilia, Sexual Abuse, 2023, Vol 35(3): 288-312, page 288 (defining “somnophilia“) and page 289 (defining “dormaphilia“) (https://journals.sagepub.com/doi/10.1177/10790632221098359 [last accessed Oct. 10, 2025]).

The phrase “sleeping sex” (as was used in the appeal panel decision and in the petition), was incorrect because it means “sleep sex” or “sexsomnia,” which is a sleep disorder characterized by sexual behaviors committed by the actors while asleep and beyond their control (automatism). See Alexandria Organ & J. Paul Fedoroff, Sexsomnia: Sleep Sex Research and Its Legal Implications, Curr Psychiatry Rep (2015) 17:34 (https://link.springer.com/article/10.1007/s11920-015-0568-y [last accessed Oct. 12, 2025]).

In contrast to a sexsomniac, a somnophile is typically a “male[ ] who [is] attracted to a sexual object, unable to resist [his] advances.” See Mark Pettigrew, Somnophilia and Sexual Abuse through the Administration of GHB and GBL, Journal of Forensic Sciences, 2019 Jan; 64(1): 302-303, page 302 (https://onlinelibrary.wiley.com/doi/10.1111/1556-4029.13812 [last accessed Oct. 12, 2025]).
8
Footnote 8:Sexual Misconduct Policy, Prohibited Conduct under the Policy, § 3 Sexual Assault (NYSCEF Doc No. 15). Although the sexual misconduct policy went into effect on June 1, 2023 after the alleged misconduct occurred in November and/or December 2022, the parties do not raise — and the Court does not address — the issue of the applicability of the policy to the alleged misconduct. Footnote 8:Sexual Misconduct Policy, Prohibited Conduct under the Policy, § 3 Sexual Assault (NYSCEF Doc No. 15). Although the sexual misconduct policy went into effect on June 1, 2023 after the alleged misconduct occurred in November and/or December 2022, the parties do not raise — and the Court does not address — the issue of the applicability of the policy to the alleged misconduct.
9
Footnote 9:Sexual Misconduct Policy, Definitions, § 1 Affirmative Consent. Footnote 9:Sexual Misconduct Policy, Definitions, § 1 Affirmative Consent.
10
Footnote 10:Sexual Misconduct Policy, Definitions, § 1 Affirmative Consent. Footnote 10:Sexual Misconduct Policy, Definitions, § 1 Affirmative Consent.
11
Footnote 11:Hearing Transcript, June 18, 2024 Session, Complainant‘s Testimony at 00:17:12 and 00:17:17 (testifying that she was “a really heavy sleeper” and “an extremely heavy sleeper,” respectively) (NYSCEF Doc No. 18). Footnote 11:Hearing Transcript, June 18, 2024 Session, Complainant‘s Testimony at 00:17:12 and 00:17:17 (testifying that she was “a really heavy sleeper” and “an extremely heavy sleeper,” respectively) (NYSCEF Doc No. 18).
12
Footnote 12:Hearing Transcript, June 20, 2024 Session, Petitioner‘s Testimony at 02:47:47 (estimating that “[l]ike a couple of days[;] [m]aybe not even [that]” passed between Complainant‘s consent to the future somnophilic/dormaphilic sex and his subsequent engagement into such sexual practice with her). Footnote 12:Hearing Transcript, June 20, 2024 Session, Petitioner‘s Testimony at 02:47:47 (estimating that “[l]ike a couple of days[;] [m]aybe not even [that]” passed between Complainant‘s consent to the future somnophilic/dormaphilic sex and his subsequent engagement into such sexual practice with her).
13
Footnote 13:Hearing Transcript, June 20, 2024 Session, Petitioner‘s Testimony at 02:44:21 (“[I]t was consensual because we were in a relationship that we had discussed these things.“). Footnote 13:Hearing Transcript, June 20, 2024 Session, Petitioner‘s Testimony at 02:44:21 (“[I]t was consensual because we were in a relationship that we had discussed these things.“).
14
Footnote 14:Petitioner‘s Letter Appeal, dated August 21, 2024, page 24 (NYSCEF Doc No. 21). Footnote 14:Petitioner‘s Letter Appeal, dated August 21, 2024, page 24 (NYSCEF Doc No. 21).
15
Footnote 15:Hearing Transcript, June 20, 2024 Session, Colloquy Between Panel Chair Canterbury and Petitioner from 02:46:38 to 02:46:53 and at 02:33:47 to 02:33:58, respectively (Panel Chair Canterbury: “[A]s a yes or no matter, did you [Petitioner] do anything prior to initiating sex while she [Complainant] was asleep to confirm that she consented for sex in that moment?” Petitioner: ”No, because she [Complainant] was asleep. That was the entire point.“); (Panel Chair Canterbury: . . . How did she [Complainant] know you [Petitioner] all had sex while she was sleeping?” Petitioner: ”That was the whole point.“) (emphasis added). Footnote 15:Hearing Transcript, June 20, 2024 Session, Colloquy Between Panel Chair Canterbury and Petitioner from 02:46:38 to 02:46:53 and at 02:33:47 to 02:33:58, respectively (Panel Chair Canterbury: “[A]s a yes or no matter, did you [Petitioner] do anything prior to initiating sex while she [Complainant] was asleep to confirm that she consented for sex in that moment?” Petitioner: ”No, because she [Complainant] was asleep. That was the entire point.“); (Panel Chair Canterbury: . . . How did she [Complainant] know you [Petitioner] all had sex while she was sleeping?” Petitioner: ”That was the whole point.“) (emphasis added).
16
Footnote 16:Although “[c]onsent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity” (Matter of Bibler v State Univ. of New York at Albany, 239 AD3d 1080, 1082 [3d Dept 2025] [emphasis in the original]), the Complainant‘s state of being asleep in her own bed and in her own apartment when Petitioner (who resided elsewhere) entered it, did not constitute consent to his intended sexual conduct. Footnote 16:Although “[c]onsent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity” (Matter of Bibler v State Univ. of New York at Albany, 239 AD3d 1080, 1082 [3d Dept 2025] [emphasis in the original]), the Complainant‘s state of being asleep in her own bed and in her own apartment when Petitioner (who resided elsewhere) entered it, did not constitute consent to his intended sexual conduct.
17
Footnote 17:Petitioner‘s reliance on Matter of Doe v State Univ. of New York Buffalo State Univ., 237 AD3d 1527 (4th Dept 2025), is unavailing for two reasons. First, the disciplinary charges against the petitioner in that case arose from the allegations made against [him] by a woman (a reporting individual) who did not testify at the disciplinary hearing” and who affirmatively initiated sexual relations with him. As the Fourth Judicial Department held (at page 1530):

“Petitioner testified without contradiction that the reporting individual initiated physical contact by touching his chest and stomach while he was sitting in a chair, and that she removed her own clothes without his assistance before she bent over and said[,] ‘let‘s go.’ According to petitioner, the reporting individual never indicated that she did not want to continue having sex or that she wanted to stop. We conclude that such conduct constitutes affirmative consent under the Code of Conduct even if, as the Conduct Board found, the reporting individual did not verbally consent to sexual intercourse.

In the absence of testimony from the reporting individual, and accepting as true the portions of petitioner‘s testimony that were not rejected by the Conduct Board, we conclude that the determination that petitioner engaged in non-consensual sexual contact was based on no evidence and, thus, comprised of nothing more than surmise, conjecture, or speculation.”
Id. at 1530 (internal quotations marks omitted; emphasis added).

Second, the appellate court applied the “substantial evidence standard” because the respondent was a public college, whereas Pratt is a private college, subject to the abuse of discretion standard of review. Footnote 17:Petitioner‘s reliance on Matter of Doe v State Univ. of New York Buffalo State Univ., 237 AD3d 1527 (4th Dept 2025), is unavailing for two reasons. First, the disciplinary charges against the petitioner in that case arose from the allegations made against [him] by a woman (a reporting individual) who did not testify at the disciplinary hearing” and who affirmatively initiated sexual relations with him. As the Fourth Judicial Department held (at page 1530):

“Petitioner testified without contradiction that the reporting individual initiated physical contact by touching his chest and stomach while he was sitting in a chair, and that she removed her own clothes without his assistance before she bent over and said[,] ‘let‘s go.’ According to petitioner, the reporting individual never indicated that she did not want to continue having sex or that she wanted to stop. We conclude that such conduct constitutes affirmative consent under the Code of Conduct even if, as the Conduct Board found, the reporting individual did not verbally consent to sexual intercourse.

In the absence of testimony from the reporting individual, and accepting as true the portions of petitioner‘s testimony that were not rejected by the Conduct Board, we conclude that the determination that petitioner engaged in non-consensual sexual contact was based on no evidence and, thus, comprised of nothing more than surmise, conjecture, or speculation.”
Id. at 1530 (internal quotations marks omitted; emphasis added).

Second, the appellate court applied the “substantial evidence standard” because the respondent was a public college, whereas Pratt is a private college, subject to the abuse of discretion standard of review.
18
Footnote 18:Petitioner‘s Appeal, dated August 21, 2024, page 29 (NYSCEF Doc No. 21). Footnote 18:Petitioner‘s Appeal, dated August 21, 2024, page 29 (NYSCEF Doc No. 21).
19
Footnote 19:Petitioner‘s Appeal, page 29 (citing the lower court‘s decision). Footnote 19:Petitioner‘s Appeal, page 29 (citing the lower court‘s decision).
20
Footnote 20:Her Majesty The Queen, Appellant, versus J.A., Respondent, and Attorney General of Canada and Women‘s Legal Education and Action Fund, Intervenors, 2011 SCC 28, (2011) 2 S.C.R. 440. As the Supreme Court of Canada further held:

“The argument that advance consent equals actual consent because the complainant cannot change her mind after being rendered unconscious runs contrary to this Court‘s conclusion in R. v. Ewanchuk, [1999] 1 S.C.R. 330, that the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring [and that ‘(n)o defense of implied consent to sexual assault exists in Canadian law‘]. When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

In some situations, the concept of consent [the legislature] has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine [the legislative] choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is [the legislature], should it deem this necessary.”

(https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7942/index.do [last accessed Oct. 12, 2025]) (emphasis added). The Ewanchuk decision which is cited in R v J.A. is available at https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1684/index.do [last accessed Oct. 12, 2025]). Footnote 20:Her Majesty The Queen, Appellant, versus J.A., Respondent, and Attorney General of Canada and Women‘s Legal Education and Action Fund, Intervenors, 2011 SCC 28, (2011) 2 S.C.R. 440. As the Supreme Court of Canada further held:

“The argument that advance consent equals actual consent because the complainant cannot change her mind after being rendered unconscious runs contrary to this Court‘s conclusion in R. v. Ewanchuk, [1999] 1 S.C.R. 330, that the only relevant period for ascertaining whether the complainant consented under the Criminal Code is while the touching is occurring [and that ‘(n)o defense of implied consent to sexual assault exists in Canadian law‘]. When the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs. Finding that such a person is consenting would effectively negate the right of the complainant to change her mind at any point in the sexual encounter.

In some situations, the concept of consent [the legislature] has adopted may seem unrealistic. However, it would be inappropriate for this Court to carve out exceptions to the concept of consent when doing so would undermine [the legislative] choice. This concept of consent produces just results in the vast majority of cases and has proved to be of great value in combating stereotypes that have historically existed. In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is [the legislature], should it deem this necessary.”

(https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/7942/index.do [last accessed Oct. 12, 2025]) (emphasis added). The Ewanchuk decision which is cited in R v J.A. is available at https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1684/index.do [last accessed Oct. 12, 2025]).