“Gray rape” is what Cosmopolitan magazine defines as “a new form of date rape,” or “sex that falls somewhere between consent and denial and is even more confusing than date rape because often both parties are unsure of who wanted what.” It was also the determining factor for the recent expulsion of a fraternity member at Washington and Lee University in Virginia.

John Doe, a junior brother of Pi Kappa Phi at Washington and Lee, met Jane Doe at an off-campus party in February 2014. They got drunk and made out, and then went back to his place and had sex, according to a judge’s memorandum obtained by The College Fix.

“I usually don’t have sex with someone I meet on the first night, but you are a really interesting guy,” John recalls Jane saying.

The next morning, both parties were supposedly happy about the hookup. John Doe recalls her giving off a “positive vibe.” Jane Doe told her friends “she had a good time.”

They became friends on social media. She replied to one of his texts agreeing that they made a good connection. They talked to each other at parties, and eventually had sex a second time.

But then, during a St. Patrick’s Day party, Jane Doe saw John Doe kiss another woman “and left the party early, upset.”

Over the summer of 2014, Jane Doe spent time working for a women’s health clinic that helps sexual assault victims. She attended a campus talk from the university’s Title IX officer, Lauren Kozak, that discussed the TSM article, “Is It Possible That There Is Something In Between Consensual Sex And Rape…And That It Happens To Almost Every Girl Out There?” Come July, she was telling her friends she had been sexually assaulted, a far cry from the “good time” she told them about just months prior.

Eight months after their first night together, Jane Doe told the university’s Title IX officer she had been a victim of nonconsensual intercourse. John Doe appeared before the Student Faculty Hearing Board, and was promptly expelled.

He fought back with a lawsuit filed in December against Washington and Lee.

The plaintiff filed his lawsuit last December, stating the university subjected him to disciplinary actions “in an arbitrary and capricious way, and in discrimination against him on the basis of his male sex.” He accuses the private, liberal arts university in Lexington, Va., of gender bias in violation of Title IX. The student claimed he was denied legal counsel and representation during the course of the school’s inquiry, that his case was mismanaged and rushed before the Student Faculty Hearing Board, and that Jane Doe’s decision to claim rape was influenced by controversial statements made by the university’s Title IX coordinator Lauren Kozak.

Earlier this month, John Doe’s lawsuit was scheduled for trial.

U.S. District Judge Norman K. Moon ruled Aug. 5 in favor of setting a trial date after finding the student had successfully casted doubt on the accuracy of the outcome reached against him during campus proceedings. “Plaintiff’s allegations, taken as true, suggest that W&L’s disciplinary procedures, at least when it comes to charges of sexual misconduct, amount to ‘a practice of railroading accused students,’” stated the judge, citing precedent.

Where do I begin with how fucked up this whole thing is? First, we’ll start with Koznak, the school’s Title IX officer, who not only bastardized a TSM article, but shared her warped version to the school, which led a heartbroken Jane Doe to accuse an innocent man of raping her.

The TSM article was written to shed light on how women sometimes consent to sex to avoid being called a “prude,” or to avoid an argument with a butt-hurt man (side note: if you get pissed at a girl for not having sex with you, you’re a piece of shit). The piece also states that the man in the story was not at fault.

Koznak, however, used the article to suggest that regret over a sexual encounter is the same thing as rape. She later denied advancing the “regret equals rape” sentiment and says she does not believe it to be true. But if she disagrees with the idea, why did the Title IX office take the case from Jane Doe?

As fucked up as it is that Jane Doe accused a man of rape solely because he hooked up with someone else, the real blame should be placed firmly with Koznak, her campus talk, and the university’s Title IX office. They not only gave her the tools to turn John Doe’s innocence into guilt – they encouraged her to do it.

Further, the label “gray rape” is inherently unfair. By Cosmo’s definition, the term refers to something where “both parties are unsure of who wanted what.” If we are to take that definition to heart, then including “rape” in the title is illogical. That implies one of the parties was very sure of what they wanted. The term blankets the uncertainty of a situation with a label that is nearly impossible to defend in any circumstance. Couldn’t it be argued either way by either party?

At the end of the day, “gray rape” is just a term. It shouldn’t hold weight over the hard facts of what went down. But in this instance, it did. The four students and four professors on the Student Faculty Hearing Board looked at the papers in front of them, saw the word “rape,” and expelled the kid without further consideration. They didn’t want to fuck with it. Especially after the Rolling Stone’s UVA article – which was published the day before the hearing and had not yet been redacted.

In alleging a rush to judgment by the Student Faculty Hearing Board, the student points out that the decision to expel him was made one day after the publication of a Rolling Stone story — since discredited — about an alleged gang rape at a University of Virginia fraternity house.

This case is huge in regard to the future of sexual assault charges on college campuses. If John Doe wins, the gender bias and rhetoric of Title IX may finally be put in check. If he loses, it’s only a matter of time before another ex-girlfriend gets a man expelled due to “gray rape” charges..

[via NY Times, The College Fix, Daily Progress]