Still Another Judge Strikes Down Campus Rape Ruling - This Time at UC San Diego

WASHINGTON - July 15, 2015 - PRLog -- San Diego Superior Court Judge Joel M. Pressman is only the latest judge to side with a student disciplined by his college - in this case UC San Diego = for sexual assault, finding that the student was improperly prevented from fully confronting and cross-examining his accuser.

This is only the latest in a long string of similar rulings where courts have sided with male students who were wrongful convicted of date rape and similar offenses, says public interest law professor John Banzhaf, who has been encouraging such cases and helping to provide key legal theories.

In this case a female student accused the male, with whom she acknowledges she had been regularly having consequential sexual intercourse and oral sex for some time, of
digital penetration without her consent, although she continued to both study and socialize with him afterwards despite claims that it his sexual acts "shattered her," and many witnesses cast other doubt on her claim.

Here judge didn't rule on the bizarre facts of the case, but rather held that the student was impermissibly prevented from fully confronting and cross-examining his accuser.

This is only the most recent such victory in  long history of courts supporting male students.  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

Indeed, in just the past year, there have been a number of reported settlements, and apparently a few more which weren't reported.
   ■ The UNIVERSITY OF COLORADO AT BOULDER has agreed [Feb 2015] to pay $15,000 to a male student who filed a Title IX lawsuit after being suspended in connection with a campus sexual-assault case.  He had been serving a three-semester suspension after being found responsible for nonconsensual sexual intercourse and nonconsensual sexual contact. The agreement ends his suspension as of Saturday. He had argued that he was wrongly accused after a night of consensual sex.
     ■ DEPAUW -  After Junior Benjamin King was expelled [later modified to a 3-semester suspension] from DePauw in March 2014, a judge ruled that he could return to classes.  Subsequently there was a confidential settlement for an undisclosed amount,
   ■ After AMHERST COLLEGE was sued by a student whose diploma was withheld over a rape allegation, it reached a settlement in Jan 2015.  His suit had sought $2 million.
   ■ WILLIAMS COLLEGE in MA reportedly reached a settlement; reported on 9/9/14.
   ■ AGNEW SCOTT COLLEGE {Georgia] - In a case brought by a FEMALE plaintiff, the Supreme Court  ruled campus police officers are not state employees and are therefore NOT entitled to immunity - thereby making it easier to bring and win a case against them.  The overall case is still pending at this time.

Banzhaf notes that the Supreme Court has repeatedly held that in situations in which the accused face serious consequences, they must be provided with significant procedural Due Process protections generally including the right to cross examine adverse witnesses, to be represented by counsel, and to have an impartial adjudicator separate from those who investigated or prosecuted.

In short, says Banzhaf, the policies of many if not most public universities would be found unconstitutional if challenged in court, and administrators might even be found liable for damages.

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.