A question of consent

One night, two IU students and the thin line between a hook-up and a rape

By Taylor Telford

She’d been up all night.

She hadn’t changed her underwear or brushed her teeth.

Now she stood, naked and trembling, in an exam room in the IU Health Center as a nurse and a medical technician shined a flashlight on her body. They took photographs, swabbed her cheeks and measured her scrapes and bruises.

The night before, Marion Zerfoss had gotten drunk at a party at her house on Dunn Street. She was throwing up, and her roommates were worried she might choke on her vomit. They asked a neighbor, Aaron Farrer, to take care of her. Both Zerfoss and Farrer were 20. She was a junior. He was sophomore. She was studying management in SPEA. He was an IU Police Department cadet. Her roommates thought he’d be responsible, trustworthy.

Zerfoss blacked out during the encounter, she said later, but she remembered fragments. She described how Farrer had come into her bedroom and hoisted her on top of him, and how he asked if she was on birth control. How she ran to the bathroom to vomit afterward and screamed at him to leave.

In the many times Zerfoss retold her version of the night, she stressed that she had not wanted to have sex. Each time he told his version, Farrer insisted she had. The only reason they had ended up in bed together, he said, was because she talked him into it.

Days later, after Zerfoss reported the incident to the Bloomington Police Department, an officer showed up at Farrer’s house asking questions.

“Mr. Farrer did not seem to understand fully what consent was in our interview,” the officer reported later. “He also did not seem to fully understand the definition of rape.”

The officer asked Farrer if he thought he’d done anything wrong.

Farrer said he didn’t want to answer. Then he was led away in handcuffs.

***
I.
Consent is such a crucial and confounding question that Indiana University makes sure students learn about it before they take their first class.

During New Student Orientation, IU freshmen are required to watch a musical that ends with a catchy song detailing the University’s consent policy. The lyrics make it sound simple.

“Consent is unmistakable,” the performers sing, while they clap and mock-kiss. “It’s often verbal. It can’t be given by someone who is intoxicated.”

The bouncy melody imprints the definition so firmly in students’ brains that many can quote it until the day they graduate. But that doesn’t mean they apply it in the heat of the moment.

As students stumbled down 10th Street one Saturday night in September, the Indiana Daily Student asked them how they defined consent.

One large group of students was headed toward an off-campus party. They took a moment to think about their answers, the girls whispering to each other and giggling while some of the boys fiddled with their baseball caps.

They spat out variations of lines from the consent song.

“It’s a verbal yes.”

“It’s freely given.”

“It can’t be given by someone who is drunk.”

Students had a tougher time defining consent for encounters where both parties had been drinking.

One student stood thinking and ran his hand through his hair. Behind him, drunk girls in tank tops tried to do push-ups while waiting for the night bus.

“Consent is not necessarily a verbal expression of saying yes,” he said, “but a general openness to the act itself.”

***

II.
On Oct. 3, 2015, Marion Zerfoss told a detective what little she remembered from the night in question.

Her friends had helped her fill in some of the gaps in her memory, she said. Other parts had stuck with her. But in the blank spots, she admitted, anything could have happened.

Court documents detail what Zerfoss told the detective. Nine days earlier, she said, she’d had eight to 10 shots of Fireball whiskey in less than an hour. She was celebrating her roommate’s 21st birthday.

Her friends would later testify that Zerfoss hadn’t been able to walk without tripping and falling. She’d vomited four or five times. She couldn’t hold a glass of water.

Farrer had only had a few drinks. He’d offered to stay and watch over Zerfoss, but her roommates said no at first. After they had changed Zerfoss out of her clothes and put her to bed, leaving her with water and crackers, they reconsidered and called Farrer back. He returned with a textbook and his dog in tow.

The two had only met a handful of times — Farrer borrowed their lawnmower occasionally. He’d come over to hang out after a recent football game. Once, they had kissed goodbye — a peck on the lips, nothing more.

She and her friends agreed that Farrer was into her, but Zerfoss told the detective she’d always thought he was creepy. He would Snapchat her and ask her to come over. She had never spent time alone with him and usually ignored his messages. She didn’t find him attractive, she told police, and she never intended to hook up with him.

Her description of the encounter was detailed. She told the detective there were cracker crumbs in her bed and that Farrer’s dog had knocked her hamster’s food all over the floor. The sex was quick, she said — at most, it took five minutes. Then he redressed her, putting her underwear back on inside out.

“Did we just have sex?” Zerfoss asked once it was over.

“Yes,” she remembered Farrer saying. “And next time, I’ll bring my handcuffs.”

Afterward, she said, she sat up trembling, alone in her room while she waited for her roommates to get home.

When the roommates spoke with Farrer later, both women told him that he’d abused their trust and taken advantage of Zerfoss. One advised him to text an apology in the morning.

At 7 a.m. the next day, Zerfoss got the text. She still has it saved on her phone.

“I totally fucked up,” Farrer wrote. “I knew it was wrong and I did it anyways. Please don’t hold yourself accountable for anything that happened after you started drinking last night.”

That morning, Zerfoss went to the IU Health Center and allowed the staff to perform the rape exam. Nine days later, she filed her report with the police.
When Farrer found out he might face criminal charges, he sought help from Mary Higdon, a Bloomington defense attorney.

Farrer wanted to approach the police with his side of the story, so Higdon helped him compile a detailed timeline of his every interaction with Zerfoss.

In the written statement he delivered to BPD, Farrer said Zerfoss beckoned him into her bedroom, where she was lying in bed, dressed only in a T-shirt and a red thong. Then, Farrer said she’d asked him over and over, “Do you want to fuck me?”

Farrer said he resisted, questioning his own judgment since he had also been drinking. But after Zerfoss continued her advances, Farrer decided to have sex with her.

One of the few details they agree on is that afterward, Zerfoss asked if they’d had sex.

“Yes,” Farrer said. “Is that OK?”

“Yes,” he recalled her telling him. “And we can do it again.”

***

III.
IU’s policy defines consent as “agreement or permission expressed through affirmative, voluntary words or actions” to engage in a sexual act.” The definition comes with a laundry list of qualifications: that consent can be withdrawn at any point, cannot be coerced or assumed and cannot be given by someone who is intoxicated.

Kristen Jozkowski, a consent expert at the University of Arkansas, published a study in 2014 on how consent varies between genders in heterosexual college students in the Midwest. Most students, she learned, confine consent the same way. More than 60 percent of students defined consent as an agreement between two people to have sex or someone giving permission.

But most male students said they use body language or non-verbal signals when giving or seeking consent. Most women, on the other hand, use words to give consent and expect the same in return.

If students are struggling to express consent, Jozkowski said, it might be an extension of their struggles to communicate about sex in general.

“Students don’t have the language to talk to about sex,” Jozkowski said.

Each year, IU surveys students about sexual assault. In last year’s survey, 25 percent of undergraduate men and 11 percent of undergraduate women agreed that, “as a general rule, alcohol makes sexual situations easier and more enjoyable” for both genders.

The fact that college hookups are often preceded by Dixie cup shots of Peach Taaka or a tower of Keystones has nothing to do with alcohol acting as an aphrodisiac, Jozkowski said. Alcohol dampens sexual ability in both men and women. Any increased urges while drinking have to do with lowering of inhibitions.

“Alcohol acts as a social lubricant,” Jozkowski said. “People think they can be more explicit about their desires when they’re drinking.”

While alcohol allows some students to feel more at ease seeking sex, the pressure to hook up can eclipse their better judgment.

Again and again, students ask Jozkowski the same question.

“Are we raping each other when we get drunk and have sex?”

***

IV.
Jozkowski’s data, useful as it is, can’t begin to measure the confusion and pain that comes from two 20-year-olds getting consent wrong.

When Zerfoss spoke with Bloomington police, she conceded that she may have said some of the provocative things that Farrer attributed to her. She was blacked out, so she had no way of knowing what she did or didn’t do.

She told the police it shouldn’t matter.

“I was way too drunk, and everyone knows that he was sober,” Zerfoss told the detective. “You can’t have sex with a drunk girl like that.”

After posting $2,500 bond, Farrer was released from jail. He was charged with one count of rape and pleaded not guilty. Now he faced the criminal charges in court and disciplinary action from IU’s Office of Student Ethics.

Farrer filed a formal complaint of sexual harassment with the University, saying Zerfoss had touched him inappropriately and made suggestive statements to him while he worked an IUPD shift at a football game. Although his roommate corroborated Farrer’s account, the Office of Student Ethics dismissed his complaint, noting that no other witnesses saw anything unusual in Zerfoss’ behavior.

The day before Thanksgiving break 2015, a student ethics panel conducted a hearing to consider Zerfoss’ complaint. In her opening statement, Zerfoss was calm.

“We are here today because Aaron Farrer raped me,” Zerfoss said. “I ask this panel to please hold him accountable for his actions.”

Farrer was a mess. He repeated himself and cried. He sounded desperate.

“Marion painted a picture of a man anxiously waiting on the sofa for her friends to leave, at which time he enters her bedroom, rapes her lifeless and blacked-out body and leaves,” Farrer said. “This is a disgusting accusation, and it is completely false.”

The student ethics panelists questioned Farrer’s judgment and his interpretations of the night. As a police officer, hadn’t he been trained to recognize alcohol poisoning? Didn’t he understand that someone in danger of choking on their own vomit couldn’t provide reliable consent?

Farrer said no to all of these.

The panel questioned him extensively on his motives for staying with Zerfoss.

Farrer went back and forth. He said he’d stayed just to keep her company, as “a friendly courtesy.” He said he knew he’d been asked to watch Zerfoss so that “she didn’t throw up and kill herself.”

He argued that he was a man of moral standards and that Zerfoss had forced him to break them. She’d come onto him so aggressively, he said, that he felt she had not only consented but also absolved him of responsibility.

“A switch flipped in my head and said, ‘There’s no way there’s an issue here,’” Farrer told the panelists. “Because if anything, she has assaulted me.”

When asked about the text he had sent to Zerfoss the morning after — in which he said she shouldn’t hold herself accountable for what had happened — Farrer said he had only sent it so she wouldn’t feel embarrassed and because he felt guilty about sleeping with someone he considered a friend.

“In reality, it was every bit her fault as mine,” Farrer said.

Farrer talked about what that night had cost him. He’d been stripped of his status as an IUPD cadet. He said he felt his good record and reputation had been smeared. He said that, although he had made poor decisions, he had already been punished more than he deserved.

“I think it is grossly unfair to compare the ambiguous situation I was put in to actual rape.”

When it was her turn to speak again, Zerfoss said she had lost her sense of security.

“This is something I will have to carry with me for the rest of my life. This is not something that heals.”

In the end, the panel sided with Zerfoss. Farrer was expelled.

Mary Higdon, Farrer’s lawyer, was stunned. She has defended several male students in situations like Farrer’s. She’d seen plenty of suspensions, but never an expulsion.

“I personally think it had something to do with the fact that he was a cadet,” Higdon said. “They thought he should have known better.”

***

V.
The case wasn’t over yet. Farrer still faced the rape charge in criminal court.

What happened next shows the complexity of consent, especially in Indiana. Farrer was kicked out of IU after violating University policy, which says consent cannot be given by someone who may not be able to understand their situation due to intoxication. Zerfoss had shown signs of such intoxication, as listed by the policy — stumbling, vomiting, slurred speech.

The state has a different standard. Indiana law says that valid consent cannot be given when “the other person is unaware that the sexual intercourse or other sexual conduct is occurring, or the other person is so mentally disabled or deficient that consent to sexual intercourse or other sexual conduct cannot be given.”
Robert Miller, chief deputy prosecutor for Monroe County, said in an interview the standard is stringent. Just being drunk usually isn’t enough to prove a lack of consent.

“Case law suggests they must be unconscious,” Miller said.

Higdon filed a motion to dismiss the criminal charge in February 2016, arguing that under Indiana law, Zerfoss had clearly given consent. She had initiated the sex, the defense attorney said, and was aware and in control of her actions that night. She answered Farrer’s questions about birth control and spoke lucidly. In her interview with the detective, she had recalled many details from the encounter, including the cracker crumbs in her bed and the hamster food spilled on her floor.

“To insist that such a person cannot consent to sex is to redefine the concept,” Higdon wrote in her motion.

According to IU policy, Zerfoss had not been in any condition to give consent. But according to Indiana law, she had.

Prosecutors dropped the charge against Farrer.

Zerfoss said she felt betrayed.

Sexual assault cases are often difficult to prove in criminal court, especially if alcohol was involved and the victim can’t remember what happened.

“It’s not uncommon to have women say they were blacked out, but they might have appeared to be in control to those around them,” Miller explained. “This makes prosecution problematic or impossible.”

To Higdon, the state’s legal standards for consent are more reasonable than IU’s. In a college town where students are constantly drinking and hooking up, Higdon said it’s unrealistic to have a policy that says intoxicated people cannot give consent.

“I’ve seen this ruin a lot of young men’s lives,” Higdon said.

While their case was still tangled in the systems, Farrer’s father sent a letter to Zerfoss’ father, hoping as adults they could see past the mess their children made.

“I think you would agree with me that it was these kids doing dumb things that led them to the situation they are in. What happened between Aaron and Marion that night has destroyed Aaron’s life, and it is destroying his family too,” Farrer’s father wrote. “All over a drunken college hookup.”

Zerfoss found the letter patronizing. She couldn’t believe Farrer’s father wrote to her father rather than addressing her directly.

What happened between her and Farrer, she said, wasn’t a hook-up. It was rape.

***

In the two and a half months since the criminal charge was dropped, Farrer has tried to get on with his life. He moved back home and is working with his father.
With his lawyer’s help, he’s gotten the arrest and criminal charge expunged from court records. He has been readmitted to ROTC. He hopes to be readmitted to IU. According to Higdon, IUPD is considering allowing him to rejoin its program.

As of December 20, Farrer is suing Indiana University and Zerfoss for gender discrimination, claiming that IU’s investigation was unfairly biased toward Zerfoss.

“IU violated Title IX by creating a gender biased, hostile environment against males, like Farrer, based in part on IU’s pattern and practice of disciplining male students who accept physical contact initiated by female students, but failing to discipline female students who engage in the same conduct,” Farrer’s attorneys wrote in the complaint.

Farrer is seeking $75,000, demanding a jury trial and is asking to be reinstated as a student at IU.

Farrer declined to be interviewed for this story. But in a written statement, he said he feels like irrevocable damage has been done to him and his family.

“When the accusation was made, I lost everything,” Farrer wrote. “I have been punished emotionally and financially more than I could have ever planned for.”

In a few weeks, Zerfoss will graduate from IU. She’s eager to leave. Angry and unsettled, she has moved out of the house where the incident happened and has been diagnosed with post-traumatic stress disorder. She got a rescue dog named Cleo to help ease her fears.

She still has nightmares where she is trapped back inside that night. The thought of Fireball makes her gag.

The fog of consent has left both of them feeling damaged. She believes Farrer got to hurt her and walk away. Farrer believes she ruined his life.

Their fractured story is repeated often on this campus and others across the country — between students in bars, at house parties, in dorms and fraternity houses.

Last Tuesday night, two young men passed Zerfoss’ old house on Dunn Street, walking toward Memorial Stadium. One was talking about a fight he’d nearly gotten into at a party. He told the other boy he’d been so angry that he’d broken his phone and punched a hole in a wall.

“So he’s like, ‘Bro, I only told you because I thought we’d be cool,’” the boy said. “And I was like, ‘How are we cool? You made out with my girlfriend while she was passed out in the back of the car!’”

The boy’s friend laughed as they walked off into the night.