Tactics May Help Win Lawsuits, or in Campus Disciplinary Proceedings

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-- WASHINGTON, D.C. (February 18, 2015): It appears that men accused of date rape are increasingly using text messages, and other social media communications such as on Facebook, to defend themselves by showing that their accusers sent messages which were friendly, flirtatious, and possibly even flagrantly sexual following the alleged unconsented sex, notes public interest law professor John Banzhaf, who was one of the first to report how men are also using lawsuits and videotapes to fight back.Very recently the Daily Beast published an article citing Facebook chats from the accuser to the accused following her complaint of an alleged terrifying campus rape. Many of the communications suggest that the two are still friends, something many may find inconsistent with - or at least cast serious doubts about - her claims to be the victim of a violent rape. Indeed one such communication, reads:"I love you Paul. Where are you?!?!?!?!"Although the male was cleared of all charges by Columbia University, and he was never even charged with a crime, his accuser is not only sticking with her story, but actually carrying around a mattress on campus to generate publicity for her cause. Without her messages, he might well have been found guilty in a "he said, she said" evidentiary proceeding if there were no evidence other than her claims and his denials, says Banzhaf.In another recent development, just last week the New York Times Magazine ran a lengthy article about Stanford University where a female student filed a sexual abuse law suit. The accused then took some of their email correspondence and posted it to a website in hopes of undercutting her claims.One, allegedly sent more than six weeks after their breakup, read: “Joe, you are capable of treating me better than any man in the world. You have proven this to me before, which is why I fell in love with you….I crave for you to come closer.” Perhaps even more telling was an email from the accuser to one of her friends, in which she discussed what she called a “Joe take down scheme.”Another unexpected and ironic result of the administration's efforts to pressure colleges to more aggressively find students guilty of date rape is that more male students are likely to begin videotaping their sex encounters, usually surreptitiously.Such video recordings have been used successfully to defeat allegations of rape, a number of Internet web sites are recommending video taping to men as a defensive tactic, and the practice is reportedly not illegal in the great majority of states, says law professor John Banzhaf.Since only 17 states explicitly define rape as penetration without consent, and the remainder generally require either that the woman at the time be "physically helpless" - i.e., unconscious, or unable to resist or communicate - or that the defendant use force or the threat of force, a videotape showing no apparent manifestations of force, and a female complainant able to move even a tiny bit (i.e., perhaps drunk, but not “helpless”)could at the very least create enough doubt as to require a “not guilty” finding.Moreover, even in those 17 states which do require consent - Alabama, DC, Florida, Kansas, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Washington - a videotape showing the female actively cooperating in any way in the sex act could be taken to signify her consent, even if there is no proof that she verbally agreed.News reports indicate that videotapes can often provide a successful defense to rape:■ Four students at Hofstra University were accused of gang raping a fellow student, but were freed when a cell phone video indicated that the sexual encounter was consensual■ A San Francisco lawyer, charged with raping three women, had the charges regarding two women dismissed because he had videotaped those encounters.■ A man was found not guilty of an alleged gang rape after a Cook County, Illinois, jury was shown a videotape arguably showing some signs of consent as pointed out by an expert witness.Although the Federal Wiretapping statute prohibits audio recording, it does not limit recording of video-only images. Moreover, the great majority of the states also do not criminalize videotaping.In any event, the few state laws which criminalize it are full of restrictions and loopholes so they may not apply where a man videotapes his own sexual activities in his own room, not for sexual gratification, but rather as a legal defense to rape.Also, some men are apparently taking the view that they would rather be changed with the less serious crime of illegal videotaping than the much more serious felony of rape.Several Internet web sites are suggesting that men should routinely videotape their sexual encounters as a possible defense to a charge of date rape.This may be part of the backlash which is being spawned by federal pressure on universities to punish more students accused of rape.Another measure of this apparently growing backlash is the growing number of men bringing law suits against their universities after having been found guilty of date rape, sexual assault, etc. - about a dozen of which have already been successful, says law professor Banzhaf.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.JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.Professor of Public Interest LawGeorge Washington University Law School,FAMRI Dr. William Cahan Distinguished Professor,Fellow, World Technology Network,Founder, Action on Smoking and Health (ASH)2000 H Street, NWWashington, DC 20052, USA(202) 994-7229 // (703) 527-8418 http://banzhaf.net/ @profbanzhaf