Still Another Date-Rape Accused Wins With Legal Action // A New Movement as Males Sue and Tape

WASHINGTON - June 27, 2014 - PRLog -- Banzhaf had successfully predicted that, as colleges were pressured by the federal government to increase  the number of date rape convictions, male students would begin fighting back with legal actions, and by videotaping their sexual encounters to use the tapes in their defense.

        He recently  reported almost a dozen cases in which male students taking legal actions against their universities were successful, and several where videotaped recordings of sexual encounters helped defendants in rape cases successfully defend themselves.

        Colleges are facing a new very serious challenge as many male students found guilty of rape or sexual assault by their institutions are taking them to court and winning:

    ■ BROWN I - she didn’t remember the event, he said the sex was consensual, but was found guilty; was reported on TV as case of  “When Yes Means No”; case settled by university

    ■ BROWN II - student charged the school interfered with his efforts to clear his name because of pressure from accuser’s father, an influential alum and a major donor; lawsuit settled by university

    ■ DENISON - accused passed lie detector test, was found guilty anyway by university, sued on ten different legal grounds including violation of rights; case settled by university

    ■ DUKE I - famous case involving lacrosse players, law suit charged conspiracy to fame players, and was settled by the university for an undisclosed amount

    ■ DUKE II - judge very recently prohibited university from expelling a student convicted of rape, because of alleged pressure on the campus tribunal to get tough on rapists

    ■ GEORGE WASHINGTON - was forced to settle a case where a former student sued the school for allegedly unfairly convicting him of sexual assault

    ■ HOLY CROSS - school policy held male responsible if both parties were drunk; university’s “responsible” finding was overturned; he was returned to school with no adverse mark on transcript

    ■ OCCIDENTAL - order of stay granted by the court when the student complained about improper procedures and definitions used in the campus proceeding which convicted him

    ■ SAINT JOSEPH - federal judge upheld lawsuit brought by male student against university, a university employee, and even the female complainant, under several novel legal theories

    ■ UNIVERSITY OF THE SOUTH - jury ruled university was negligent in a case that found a student guilty of sexual assault, saying that it did not follow its own published procedures

    ■ XAVIER - judge upheld a law suit, based upon many different legal theories, by a male student against his university which had earlier found him guilty of rape; university then settled

        Also, very recently, in a case with some striking parallels, a military appeals court overturned a Marine's rape and sexual assault convictions because of the unfairness of pressure to convict from higher ups; an allegation common to several students’ complaints.

        Meanwhile, law suits filed by 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.

        More such legal challenges are likely to be brought as pressure from the President, several federal agencies, women's rights organizations, and individual women and groups on campus result in more findings of guilt where they may not be warranted by the facts and/or because the procedures used did not protect the accused student's rights, says Banzhaf.

        This may be especially true as the federal government pressures schools to convict, not where the evidence establishes proof beyond a reasonable doubt (the usual standard in rape cases) or even by clear and convincing evidence, but rather where the conclusion is based upon a mere preponderance of evidence.

        This means that, in many “he said, she said” date rape cases where there is no other corroborating evidence and the two students' stories conflict, the campus tribunal just has to find her story a little bit more convincing than his to expel the male student and scar him for life, says Banzhaf, who has brought more than 100 successful legal proceedings charging sex discrimination against women.

        Finding sexual assault by a mere preponderance of evidence may be appropriate where the consequence is only a campus-wide restraining order, or a mandated move to another dorm or class to avoid facing the female complainant, but some higher standard may be required by law when the penalty, as in the Duke case, is expulsion plus loss of a diploma which he earned and is needed for his new job, says Banzhaf.

        One major problem confronting prosecutions for date rape is that among the 50 states and the District of Columbia, only 17 explicitly prohibit rape involving penetration without consent.  In other words, in many states, “no” does not always mean “no” and result in a conviction for rape.

        In a related development, men are being advised to videotape their sexual encounters and use them in their defense, a tactic which has already been proven successful in several situations.

        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.

        Interestingly, this new tactic does not appear to be a crime in most states.  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.