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.”
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.
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 a law student. The student was found to be in violation of sexual misconduct and unwanted sexual touching and was 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.