Regretting Sex Afterwards Doesn't Make It Rape - Court Rules

WASHINGTON - Aug. 11, 2015 - PRLog -- WASHINGTON, D.C. (August 11, 2015):  The argument that consensual sex can somehow be transmuted into a rape if the woman, even weeks or months afterwards, decides that she regrets giving her consent at the time, is apparently gaining traction in some circles.

        But it is wrong and, when argued by a university official in a campus sexual assault proceeding, can make the university legally liable for a Title IX violation, according to a federal judge in a new decision in the case of John Doe v. Washington and Lee University.

        The case involved a female student who has consensual sex with a male student, and told others afterwards that she enjoyed it.  Seven months later, after the woman saw the male kissing another woman, she said that she had “an evolution” about how she felt about the sex when it occurred.  Based upon an article she was exposed to at the university - which argued that "regret equals rape" - she charged the male with rape based upon her alleged retroactive regret about the sex, and he was expelled.

        Strangely, the article promoting this new theory suggests that regret rape happens not just occasionally but rather to virtually all women.  Indeed, it is titled “Is It Possible That There Is Something In Between Consensual Sex And Rape . . . And That It Happens To Almost Every Girl Out There?”

        As the court describes this novel new theory, "the article posits that sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express."

        Such a theory can irrevocably taint any proceeding involving alleged rape by manufacturing a climate of gender discrimination against males that can "railroad" innocent men, the judge ruled.

        This seems to be especially true here because the allegations - of a woman scorned, and turning her regrets into revenge - seem to not only fall squarely within this theory, but to actually be based upon it.

        The ruling is also especially notable because it involves a private university.  In contrast, many of the more than a dozen rulings in favor of male students challenging their punishment for alleged rapes have involved state universities as to which constitutional protections, including Due Process, clearly apply.

        Indeed, as Fox News has just reported in a piece entitled "'Yes Means Yes' Policy Coming under Fire from Judges," several recent decisions have held that state universities are required to provide Due Process procedural protections to males accused of rape or sexual assault, including the right to cross examine the accuser, and the right to have the burden of proof fall upon the university.

        Indeed, the Fox report emphasized, "No matter what the Department of Education or Department of Justice suggest, regardless of what a state’s statute provides, or what the University decides, the Constitution trumps it all," citing public interest law professor John Banzhaf.

        "With so many recent court decisions going against them or pressuring them to enter into settlements, universities may finally be forced to ensure that their procedures for judging campus rape and sexual assault allegations provide sufficient procedural protections for the accused, or face the serious legal consequences," suggests Banzhaf, who has advised in several campus rape cases.

        He notes that while the Constitution requires procedural protections for the accused, it does not require any similar protections for the accuser, so arguments that both must be treated the same are wrong.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf