Louis Theroux is best known for probing the darker side of life – whether that’s assisted dying (in his last miniseries, Altered States); murder, sex trafficking and heroin abuse (in 2017’s Dark States trilogy); eating disorders; or paedophilia a decade ago. Living as we do in a post-#MeToo cultural moment, then, it was only a matter of time before he delved into the murky waters of sexual consent and assault.
In his latest documentary, The Night In Question, the award-winning journalist examines the issue on US college campuses, meeting assault survivors, men accused of sexual assault and specialist administrators whose job it is to investigate alleged misdemeanours and permanently exclude those they deem responsible. US colleges have Title IX investigators, so named after a federal law passed in the early 1970s, designed to prevent sexual harassment, sexual violence and other gender-based discrimination in educational environments. It’s possible, therefore, for an incident to be considered not criminal but still a breach of Title IX standards, meaning people can be suspended from college but not be put in jail.
Wanting to investigate this disconnect was just "part of" why Theroux made the film in the US rather than the UK, he tells Refinery29. "The more honest answer is that I was living in America at the time, and I was reading a lot about it in the American context." He doesn’t believe he could have made a film on the issue in the UK, given his popularity among British students, attested by the glut of Theroux-themed club nights, merch and memes he’s inspired. "On issues of extreme sensitivity, often involving allegations of sexual misconduct, as a production we tend to be able to go further in America. I don’t know if it’s because we’re lower profile or whether people in America just feel 'well, it’s only British TV, it doesn’t really matter'. I was more confident in being able to get the access we needed over there."
The investigation process on US campuses is often considered a boon for victims, as it’s rare for college rape accusations to be tried in the courts (cases like Brock Turner’s being the exception), and less stringent proof is required than in criminal cases. Alleged perpetrators, however, deem it an overreaction that harms innocent men. As Theroux touches on in the film, many of them, having been found responsible for sexual misconduct, are now suing their universities under Title IX – the same law used to prevent sexual assault – saying they’ve been discriminated against as men and winning large payouts.
One such man – whose story seems destined to stick in viewers’ minds and have them frantically googling as they watch – is Saifullah Khan. The 25-year-old was accused of raping a fellow Yale University student (who didn't want to feature in the documentary) on Halloween in 2015, in a case that gained international media attention and became a cause célèbre in the US. Khan was tried in court and acquitted on four counts of sexual assault in March 2018, and was allowed to return to the university in the autumn. But last October, new accusations of sexual assault came to light and Khan was suspended again; he is now considering suing the university. Khan’s interviews with Theroux make clear he considers himself a victim of a cruel injustice and show him breaking down in tears on camera – a routine we’re later told, by his former supporter and now accuser, Jon Andrews, that he can perform on cue.
A sizeable proportion of The Night In Question is dedicated to Khan’s case, and the perspective of other students whose universities have found them responsible for sexual assault. Does Theroux anticipate backlash for giving them so much screen time? He swerves the question, taking pains to emphasise the care his team took to strike a balance "between the need to take sexual assault seriously on the one hand, and on the other hand, the need to respect due process." He also "wanted to acknowledge the necessary and important work that Me Too has done and the importance of the cultural moment that we’ve lived through," which meant featuring survivors "who could explain the way in which sexual assault was damaging and traumatic."
The former Columbia student Emma Sulkowicz, now an artist based in New York who identifies as non binary (and uses they/them pronouns), features heavily. Sulkowicz became an international celebrity in 2014 for their art project, "Carry That Weight", which involved carrying a mattress around campus following an allegation of rape they made against a fellow student the previous year. Following its investigation, Columbia concluded that the student was not responsible for any sexual misconduct against Sulkowicz. "The people on the panel were so uneducated about rape," Sulkowicz, who featured on the cover of New York Magazine and triggered copycat protests across the US, tells Theroux in harrowing detail. "I was anally raped and one of the people on the panel [said], 'I don’t understand how he could anally rape you if he didn’t have lube'. She had this idea that rapists had rape lube..." The student then sued Columbia under Title IX, claiming to be a victim.
What was it like for Theroux interviewing survivors like Emma, and fellow Yale student and survivor Mollie Johnson, compared to the men like Khan who have been accused of sexual misconduct? "Speaking to a victim of sexual assault is more stressful and intimidating for me because I’m aware of the need to delve into details in a way that may be traumatising. I’m also aware of the need not to roll out the red carpet and say 'okay here’s your moment, say whatever you like'. I’m still a journalist. I’m still attempting to understand what took place and sift evidence," Theroux adds, describing the process as a "high-wire act". "The one luxury I do have is that we have an opportunity in the edit – if I say something crass, or take a wrong step, we can pull it out."
Was there much of this in post-production? He’s coy: "I don’t think so… but sometimes it’s just an issue of emphasis or tone… As a society we’re still attempting to learn, especially men, especially older white men, to appreciate and listen to what maybe they weren’t aware of or they chose to ignore before, to do with pervasive patterns of sexual harassment, misconduct." He tries to avoid the term 'blurred lines' for fear of "lead[ing] someone to think that I was minimising [their account] or not taking it seriously," but he knows full well, from talking to a Title IX investigator, how difficult many of these cases are. Theroux concludes the film by describing the current system as "flawed but necessary", though it’s currently under threat from the Trump administration, which is intent on giving more power to the accused.
Has Theroux been compelled to re-examine his own past behaviour in light of everything? "I don’t know of a man who hasn’t gone through some process of stock-taking and revisiting encounters or liaisons, or made mistakes that weren’t as delightful as they might have been, but that being said…" He takes a long pause. "How do I put this? I think that’s an important part of the process…that’s exactly what we should be doing, thinking that stuff through, and attempting to be more attentive, tuning in, but I’ve never been…" Another pause. "I once did a programme about Paul Daniels and... He said he’d had sex with 1,000 women or 500 – I can’t remember... Put it this way, that’s not really me."
Theroux says he was particularly struck by Sulkowicz’s approach towards rapist reform. Sulkowicz says the level of stigma attached to the word 'rapist' makes it more difficult than it needs to be for perpetrators to reform. "A big reason why people try to avoid being called rapists is that they know this label's going to follow them for the rest of their life," the artist says. "If we had a society in which somebody could be a rapist but then change and get better, learn from it and stop being a rapist, people would be so much more willing to change themselves."
There have been a string of documentaries (The Hunting Ground, It Happened Here) and national campaigns (It’s On Us, Pact 5, End Rape on Campus) aimed at tackling sexual harassment on US campuses, but there’s precious little about the issue on UK campuses despite it being sorely needed. Just last week, a poll found that over half of UK students had experienced unwanted advances and assault at university, and last year senior MPs, student leaders and equality campaigners accused UK institutions of "failing" to tackle the problem. Theroux may not believe he’s the right man to make it, but he believes there's "definitely a programme to be done in the UK". He hopes The Night In Question "will spark a conversation about some of these issues". If nothing else comes of the film, he hopes to "make people aware that it’s legitimate to hold people to a higher standard, especially in the workplace and on campuses, than simply 'not criminal'."
Louis Theroux: The Night in Question will air on BBC Two, Monday 4th March at 9pm. It will be available on iPlayer thereafter.