‘I got woken up with her slapping me, and she said we shouldn’t have had sex,” says Yale student Saif Khan. “A few days later, I found out she is accusing me of rape.” So begins Louis Theroux: The Night in Question (BBC Two). With Theroux interviewing a young man accused of sexual assault. With his version of the night in question. Then comes Theroux: “I was making a documentary about young men accused of sexual assault on American campuses,” he says with his customary neutral-yet-tuned-into-the-absurdities-of-life delivery. Erm, why?
For now, let’s follow the problematic line taken in this incendiary, troubling, and – this is Theroux after all – compelling documentary. According to Khan, a neuroscience student whose “life changed” because of events on 31 October 2015, he and the woman he allegedly attacked, also a Yale student, went to a Halloween party and classical concert before spending the night in her dorm, where the alleged assault took place. Theroux states “the alleged victim had not agreed to speak to me”, but that he has read the police notes and court transcripts. Khan was found not guilty in a criminal trial, but remains suspended from Yale during the Title IX process (the name given to campus investigations into student misconduct) which is in the process of being reformed in favour of defendants’ rights by the US education secretary, Betsy DeVos.
Witnesses on the night reported the alleged victim was intoxicated. At the concert, Khan says, “we were flirting and, out of the blue, she vomited”. Was she drunk? “No. She was normal.” What about the fact that Khan finds it unremarkable to be flirting (and having sex) with a girl who was vomiting “off to the side”? As in a court of law, culpability hinges on the victim’s capacity to provide consent.
Khan recalls in his interview with Theroux that the alleged victim invited him into her dorm. She vomited during oral sex, showered while he talked to his “long-term open-relationship girlfriend” for two-and-a-half-hours and then they had brief consensual sex. “It would be generous to say I lasted 25 seconds,” he says with a sheepish smile. According to her testimony, the alleged victim vomited, was aware of Khan on top of her and woke up to find two used condoms on the floor.
This being Theroux, a film-maker who never spoon-feeds us and always scrambles our heads, the veracity of Khan’s interview will be called into question. We find out that Khan was born in a refugee camp in Pakistan and came to the US on a scholarship. We hear about his predilection for “deep-throating” women. We watch him cry. We meet his defence attorney, paid for by anonymous financial backers. And then his former friend, Jonathan Andrews, alleges Khan asked him to spy on the alleged victim during the trial, and engaged in a “rough” threesome with Andrews and another woman, during which Khan forced her to drink alcohol and submit to nonconsensual acts. “This is not a court,” Khan says when Theroux asks him whether this is true. “I did not have a sexual relationship with Jon.” As for the interview with Theroux? “He was really pleased with himself,” says Andrews. “This documentary was going to be his vindication.”
Of course it was – which brings me back to the original question. Why this film, now? Why, when there has been a steep rise in the reporting of campus sexual assaults? Why, when Brett Kavanaugh serves on the highest court in the land while Dr Christine Blasey Ford (who accused him of sexual assault in the face of his denials at his appointment committee hearing) is still being attacked on US TV? Why are we near 15 minutes into an hour-long investigation into what constitutes consent before we hear from a female victim? Why is it only at the end that we hear a woman speaking at length about her experience of sexual assault? Why is this the clip used in the trailer? And why, whenever people discuss sexual assault, are the questions invariably about the woman’s agency, never the man’s?
“Were you fighting him off, or did you more or less give up?” Theroux asks Molly Johnson of the sexual assault she alleges took place at a Yale frat party in 2016. “I was fighting back, but did I punch him in the face?” she replies calmly. “Of course not.” On why a lower standard of evidence than that required in a criminal court is vital in campus investigations, she says: “I didn’t come out with a broken nose. I came out with a broken sense of security.”
Theroux did reach out to Khan’s alleged victim, and she did choose not to participate – but this only proves how skewed the so-called conversation has become. When women no longer feel safe enough to join it, it stops being a conversation. Meanwhile, male students are suing universities using the same Title IX process set up to prevent sexual assault. “It’s not my job to prove my innocence,” Khan says during the final squirming encounter. “I just let the truth surface on its own.” While men elicit our sympathy, it’s the alleged victim’s absence from The Night in Question that ends up saying the most.
