Student claims he was expelled from W&L for consensual sex

A day after Rolling Stone published an article describing a brutal gang rape at a University of Virginia fraternity house, a former Washington and Lee student claims he was expelled for having consensual sex with another student who eight months later regretted the encounter and claimed rape.

The former W&L student has filed a federal lawsuit claiming the private Lexington university discriminated against him because he is a male, and because it wanted to avoid the negative public scrutiny that UVa was experiencing. Moreover, the student, identified as John Doe in the lawsuit, contends W&L’s Title IX officer advocates to female students that “regret equals rape.”

“W&L has created an environment where an accused male student is fundamentally denied due process by being prosecuted through the conduct process under a presumption of guilt. Such a one-sided process deprived Plaintiff, as a male student, of educational opportunities at W&L on the basis of his sex,” John Doe claims in the lawsuit.

W&L spokesman Brian Eckert said, “We don’t feel it is appropriate to discuss the specifics of a legal proceeding, but we’re confident that we correctly follow our established university policies and procedures, as well as federal mandates. We’re committed to treating all students fairly and maintaining a safe environment on our campus.”

ohn Doe claims that twice, he had consensual sex with a student identified in the lawsuit as Jane Doe. The first encounter occurred in his room at the Pi Kappa Phi fraternity house where they went after an off-campus party on Feb. 8. Both had been drinking, he said.

He claims they sat on chairs in his room and talked for about an hour. He said Jane Doe then said that while she doesn’t usually have sex with a man when she first meets him, she found him very interesting. He said she moved toward him, initiated kissing, took off her clothes except for her underwear and got into bed with him. He said at no point did she say she did not want to have sex.

He claims she spent the night, that he contacted her later through Facebook and that they had sex again in early March. He said she told her friends she had a good time. But at a Pi Kappa Phi St. Patrick’s Day party a few weeks later, Jane Doe left when she saw him kissing another woman, who is now his girlfriend.

It wasn’t until July that Jane Doe told a friend that she was sexually assaulted, the lawsuit claims. Then in October, Jane Doe, as a member of a student organization against sexual assault called SPEAK, attended a presentation by W&L Title IX officer Lauren Kozak. According to the lawsuit, Kozak shared an article, “Is it possible that there is something in between consensual sex and rape … and that it happens to almost every girl out there?”

The article talks about alcohol-fueled sex in which the woman later regrets the encounter.

“Ms. Kozak introduced and discussed the article with the members of SPEAK to make her point that ‘regret equals rape,’ and went on to state her belief that this point was a new idea everyone is starting to agree with,” the lawsuit contends.

Five days after the presentation, Jane Doe reported to Kozak she was sexually assaulted but indicated she did not want to pursue a complaint, the lawsuit said.

By the end of October, Jane Doe changed her mind once she learned that both she and John Doe had been accepted into a program to study in Nepal for a semester, the lawsuit states.

John Doe claims that Kozak then led an investigation biased against him from the outset; he was ordered not to talk with anyone about it, and he was prevented from obtaining information to disprove the allegations.

He further claims that he could not present witnesses or question any of Kozak’s summaries during a Student-Faculty Hearing Board where he was charged with sexual misconduct.

“Moreover, based on Jane Doe’s own complaint, she admits that she ‘initiated making out,’ ‘took off her clothes except for her underwear and got into the bed. She took off her underwear in the bed. He also got naked. She was fine with all of that.’ Under W&L’s policies, the ‘responsibility of obtaining consent rests with the individual who initiates sexual activity,’ and, by her own account, Jane Doe admits that she initiated the sexual activity. The burden to establish ‘consent,’ or, in this case ‘lack of consent,’ should have been assigned to Jane Doe,” the lawsuit contends.

Eckert pointed to the university’s website to explain the policies, procedures and the president’s position on sexual misconduct. An interim policy was adopted over the summer and Kozak was named as the Title IX officer in order to comply with U.S. Department of Education regulations.

The policy sets out the framework for reporting and investigating complaints of sexual misconduct as well as the posting of Student-Faculty Hearing Board proceedings.

Hearing results for the fall of 2014, which includes John Doe’s case, will not be posted until the end of the term.

The Student-Faculty Hearing Board conducted two inquiries in May, both against law students. Both students were found to be in violation of sexual misconduct and unwanted sexual touching; both were suspended for one year.

In February 2013, the board expelled a student for sexual misconduct. In 2012, it held three similar hearings, finding no policy violation for two of the students. The third student was found to have harassed another student and was suspended for a term.

The university’s current policy requires dismissal when a student is found to have had sex without consent, but it allows for a range of punishments for other sexually related offenses.

John Doe said that, since Jane Doe initiated sex, she, not he, would need to obtain consent. Therefore, “W&L engaged in blatant gender bias” by relying on gender stereotypes as to whom should be responsible for sexual assault.

He also contends the timing of the publication of the Rolling Stone article, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVa,” influenced W&L’s decision.

The article described the story of a gang rape at a UVa fraternity house that has been mostly debunked. However, allegations that sexual assaults on campuses are not treated as the crimes that they are remains a topic of academic, political and public discussion. So, too, has the question that has been raised about procedures and the makeup of university boards adjudicating these complaints.

John Doe contends W&L’s procedures violate federal law and his due process rights.

John Doe is seeking a monetary award to compensate him for damages to his well-being, his reputation, educational opportunities and career prospects. Further, he seeks to have the expulsion reversed and his disciplinary record expunged.

Here’s a related article from the blog “Legal Insurrection”:

http://legalinsurrection.com/2014/12/there-is-no-such-thing-as-rape-ish/

A story of rape is a story of power, degradation, and disrespect. It’s the kind of story that makes you want—no, need—to shower with a lye bar and Brillo pad after you’ve heard it.

A story that ends with, “and it was pretty much rape” has the same effect on me, but for a completely different reason.

We have another he-said-she-said nightmare hitting the news out of Virginia. A John Doe and former Washington & Lee student has filed a federal lawsuit claiming that the university expelled and discriminated against him in order to avoid negative attention, and that W&L Title IX officer Lauren Kozak routinely counsels female students that “regret equals rape.”

Here we go again. Same song, different verse:

“John Doe claims that twice, he had consensual sex with a student identified in the lawsuit as Jane Doe. The first encounter occurred in his room at the Pi Kappa Phi fraternity house where they went after an off-campus party on Feb. 8. Both had been drinking, he said.
He claims they sat on chairs in his room and talked for about an hour. He said Jane Doe then said that while she doesn’t usually have sex with a man when she first meets him, she found him very interesting. He said she moved toward him, initiated kissing, took off her clothes except for her underwear and got into bed with him. He said at no point did she say she did not want to have sex.
He claims she spent the night, that he contacted her later through Facebook and that they had sex again in early March. He said she told her friends she had a good time. But at a Pi Kappa Phi St. Patrick’s Day party a few weeks later, Jane Doe left when she saw him kissing another woman, who is now his girlfriend...”

Well, haven’t we all been there.

“It wasn’t until July that Jane Doe told a friend that she was sexually assaulted, the lawsuit claims. Then in October, Jane Doe, as a member of a student organization against sexual assault called SPEAK, attended a presentation by W&L Title IX officer Lauren Kozak. According to the lawsuit, Kozak shared an article, “Is it possible that there is something in between consensual sex and rape … and that it happens to almost every girl out there?”

Ah. Shot and chaser.

Here’s a snippet from the article Kozak allegedly shared, from the indefatigably bro “Total Sorority Move”:

“I woke up with an “oh shit” feeling that quickly turned into an “oh well.” I didn’t really feel I’d been violated, though part of me knew I had. I wasn’t mad. I wasn’t hurt. I didn’t want vengeance. I didn’t even feel weird around him soon after. I didn’t feel much of anything. I certainly didn’t feel like I’d been raped. But what had happened the night prior was not consensual sex, and I didn’t like it. I wanted the flirting. I wanted the kissing. I wanted the sleepover. But I didn’t want to go all the way. And that’s very hard to explain to a man who is just as drunk as you are.
There is not a word for my experience. The fact that there’s not a word for it makes us feel like it doesn’t exist. Or maybe there’s not a word for it because we’re pretending it doesn’t exist. But this weird place in between consensual sex and rape? It’s there. It does exist. And it’s happening all the time. As it turns out, almost every woman I spoke to had been there at some point or another… “

“Oh shit”? Sure enough. “Oh well”? That comes later, followed closely by the return of self-respect. Rape? Not even close. There’s not a single word that indicates that the writer even gave a hint that she didn’t want to have sex with this man, and now he’s the subject of a popular article allegedly being used as an example of what a near-rapist looks like.

Rapist. Monster. Criminal.

The W&L President’s Office released a blog post soon after the UVA Rolling Stone article first broke. In part (emphasis mine):

“Here at Washington and Lee, we have spoken in the past about rape and sexual misconduct. We have carefully and continually examined and refined our processes and procedures for dealing with cases and for educating students to prevent such intolerable behavior from occurring. We have asserted our community’s values and stressed how disrespect for others for any reason is simply not acceptable.

These most recent discussions serve to remind us that we must always be willing to ask the hard questions and continually examine our approaches.

But we can never say this enough: Mistreatment of others is wrong by any standard of our society, by any standard of right or wrong. It is especially wrong in this community, where we — rightly — insist on developing within our students the moral obligation to treat others with respect at all times and under all conditions; where we demand that members of our community never stand idly by when we see others violate those values. It is wrong anywhere. It is especially wrong at this university.”

The problem is that we’ve misplaced our standard of right and wrong. It’s wrong to hold other people responsible ex post facto for the choices we make. It’s wrong to paint them as rapists when there has been no rape. And most importantly, it’s wrong to attempt to manipulate women into believing they have no power over their own sexuality.

Rape is a serious accusation that deserves serious attention, not navel-gazing articles about how grossed out you need to be about last night’s mistake to be able to blame him for your poor choices:

“We don’t feel entirely violated. It doesn’t affect us forever. We just feel like we got the short end of the stick, and that sometimes, we have to do something we don’t want to do, out of politeness or social obligation. So why bring it up? Why risk wrongfully tagging a guy with a serious, heavy label he doesn’t deserve? And more importantly, why risk being wrongfully tagged as “the girl who cried rape,” when we’re not trying to say it was rape at all? We’re saying we don’t know what it was. We just didn’t like it. But by refusing to acknowledge the existence of these rape-ish situations, we’re continuing to subject ourselves to them indefinitely.”

“Rape-ish?”

The words we use to describe things like rape, or uncomfortable touching, or even regrettable sex have the power to shape the lives and futures of other human beings, and it’s time for a little more precision.

Like I said, rape is a serious accusation, and I hope that the people at Washington & Lee give both John and Jane Doe the time and attention that the situation deserves; but if more information comes out about official resources being used to blur the line between consent and criminal sexual assault, I can’t say I’ll be shocked.

This is a serious allegation, and if it’s true, W&L will have more to answer for than yet another flawed student misconduct hearing system.

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