Male Student in Sexually Active Relationship With Female Had Dinner Twice With Her Parents Just After Their Latest Sexual Encounter, But He Was Still Found Guilty

Some colleges still can't tell the difference between drunk sex and date rape

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GWU Law School

jbanzhaf@law.gwu.edu

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-- In a bizarre twist on the famous movie "Guess Who's Coming to Dinner," a complaint in federal court charges that a coed invited a male student to have dinner with her and her parents twice - and then, shortly afterwards, and only after learning that he had not been faithful to her, charged that an act of intercourse they admittedly engaged in just before the first dinner was really a rape.If the facts in this complaint against Philadelphia University and his female accuser are correct, it seems hard to believe that, if she had been raped, she would have had anything to do with him thereafter, especially inviting him to have dinner with her parents not just once but twice immediately following the alleged rape, says public interest law professor John Banzhaf.He notes that the two had been in a sexually active romantic relationship for some two years before the more recent act of intercourse which she branded as a “rape.”But, says Banzhaf, who is studying the legal issues, this is only one of several truly bizarre situations in which colleges have found students guilty where the evidence seemingly doesn't warrant it.In an equally bizarre situation at the University of Michigan, a female student agreed to spend the night in the bottom bunk of a male student's bunk bed. They kissed, and then had intercourse, while the male student's roommate was trying to sleep in the top bunk.Although their amorous activities were so noisy that the roommate in the top bunk texted the accused to complain that the two in the bottom bunk were "loud and inconsiderate,"he never heard the female cry out for help or otherwise complain. Yet, according to his law suit, the student was expelled.At Swarthmore, a female student climbed into bed with a guy she had been having sex with for three months. She successfully rebuffed his first attempt at sex one night but, when he later made a second attempt, "I just kind of laid there and didn’t do anything - I had already said no [earlier in the evening]. I was just tired and wanted to go to bed. I let him finish."Getting into bed with a sexual partner of some three months, and then letting him both start and “finish” without saying "no" again, because she was just too tired and wanted to go to sleep, probably don't sound much like rape to many, including fellow male and even female students, suggests Banzhaf.Interestingly, a female student - whose complaint that Swarthmore violated Title IX by ignoring her report about rape triggered major changes in how the school handles date-rape cases - has now come out in strong support of a male student whose law suit is challenging those very procedures as unfair, says Banzhaf, noting that it is only one of many such law suits.Banzhaf has been studying a new legal movement in which males found guilty of date rape are then successfully suing their colleges, sometimes under the same Title IX which triggered the problem.Also, some are being urged to videotape their sexual encounters to help prove that the intercourse wasn’t against the woman’s will, and several accused have used videotapes successfully in the their defense, says Banzhaf, noting that in many states such surreptitious tapings may not be illegal.Interestingly, even those who are sympathetic to the problem of campus date rape, and are in charge of the campus adjudication process, are now recognizing that it can be unfair if not illegal.For example, the director of the Association of Title IX Administrators bluntly warned that some male students may have been improperly penalized."Some boards and panels still can't tell the difference between drunk sex and a policy violation," he wrote. "We are making Title IX plaintiffs out of these men."In the Swarthmore case, "John Doe" and "Jane Row" had two sexual encounters in 2011 which did not involve intercourse. Subsequently, the male and female had intercourse, which the woman agrees was consensual.But, 19 months after the fact, she suddenly claimed that the two earlier episodes had been coerced. The school originally thoroughly investigated and then cleared the man in January 2013 without even filing disciplinary charges.However, sometime thereafter, the student newspaper published articles charging that women who reported rape felt re-victimized by the college's failure to take their complaints seriously, and Mia Ferguson's highly publicized Title IX complaint against Swarthmore went public. Less than two weeks later, Swarthmore told the male, a law student, that they had reopened a complaint filed against him a year earlier.Then, after an emotional hearing before a panel made up of faculty, staff, and students, he was expelled. His attorney charges that the inference is clear."To correct one wrong - its past unresponsiveness to female complaints - [Swarthmore]committed another wrong against John based on his gender . . . He was a male accused of sexual misconduct at the wrong time and in the wrong place." Mia now apparently agrees.Swarthmore has subsequently changed its adjudication procedures, and now has such cases heard before and decided by a retired judge; a tacit admission, suggests Banzhaf, that its former procedure - using possibly biased and also untrained faculty members and students - had serious problems.Male students have already used legal action successfully at Brown (2X), Central College, Denison, Duke (2X) , George Washington, Holy Cross, Occidental, Saint Joseph, University of the South, and Xavier.Meanwhile, law suits filed by male students convicted by their universities of rape and/or sexual assault are pending against Bucknell, Cincinnati, Columbia, Delaware State, Depauw, Drew, Kenyon, U of Michigan, Philadelphia U, Swarthmore, Vassar, Williams, and perhaps others.“When even rape victims and Title IX administrators admit that men are being convicted unfairly, and male students are being found guilty in cases where the facts seem so clearly to suggest some consent, it’s long past time to consider changing the procedures,”argues Banzhaf.