Students Had BDSM Sex. Male Says He Obeyed Safe Word. GMU Agreed, Expelled Him Anyway.
Student expelled for sexual misconduct prevails in lawsuit against George Mason University.
George Mason University expelled a male student engaged in a BDSM relationship with a young woman—even though the panel agreed their disputed sexual encounter was consensual because he stopped when he heard the safe word.
That outcome didn't satisfy an assistant dean of students, so the administrator improperly granted an appeal and then reversed the panel's decision himself. That administrator, Brent Ericson, conceded that he "had already prejudged the appeal and decided to find plaintiff responsible for sexual assault." He did so, and the student was expelled.
Also notable: the expelled student, identified as "John Doe," was found guilty of misconduct relating to other encounters with his then-girlfriend "Jane Roe," who was not a student at GMU. But he was never informed that these encounters were in dispute, and thus never had an opportunity to prove his innocence.
Doe filed suit against GMU. Last week, a Virginia district court sided with Doe, and is giving his lawyers an opportunity to make the case for an appropriate remedy to his situation.
The case is a complicated one, given the nature of Doe and Roe's relationship. They were engaged in BDSM, which means the usual consent standards don't apply in quite the same way. They had a preexisting agreement that saying the word "stop," for instance, did not mean that either party was withdrawing consent. Instead, their safe word was "red." If Roe used the word "red," Doe was supposed to cease the activity.
On October 27, 2013, the two were engaged in such activity when Roe pushed Doe away. He asked whether she wanted to continue. She replied, "I don't know," and he continued anyway, since she didn't use the safe word.
Doe, it should be noted, perpetrated several disciplinary infractions at GMU, which included disrupting class and possessing lighter fluid in his dorm room. After the couple broke up, Doe continued to contact Roe, which led her to inform her university that he was harassing her. She eventually contacted GMU's police department, which put her in touch with Ericson, the assistant dean of students.
Doe was tried before a three-person GMU panel for violating the university's sexual misconduct policy during the encounter on October 27. Both parties were interviewed at the hearing, which lasted 10 hours. The panel eventually cleared Doe of wrongdoing.
This decision infuriated Roe, who filed an appeal on the grounds that the verdict represented a "substantial procedural irregularity." In context, the "irregularity" was that the panel didn't agree with Roe.
But Ericson did, and so he granted the appeal and assigned it to himself.
What happened from that point on was a farce. Ericson had no intention of giving Doe a fair hearing, since he had already predetermined the student's guilt. Doe was expelled.
All these details come from the judge's decision, which is favorable to Doe. Even just based on this perspective, it seems like Doe is at the very least a troubled student with some behavioral issues.
But even troubled students are entitled to due process. Doe wasn't even aware his conduct on dates other than October 27, 2013 was an issue. The university didn't give him proper notice of the charges against him, and permitted a biased administrator to retry his case. The Foundation for Individual Rights in Education's Samantha Harris writes, "Generally speaking, students in public university disciplinary proceedings are constitutionally entitled, at a minimum, to notice and an opportunity to be heard. In this case, the federal district court ruled that the notice given to the plaintiff was constitutionally inadequate."
The judge's decision is a win for civil libertarians: it asserts that people don't lose their due process rights when they become public university students.
I would add that the dispute itself presents a compelling argument that university administrators should be divorced from the process of adjudicating sexual assault. Who thinks campus bureaucrats can competently navigate the consent issues at stake in a BDSM relationship?
Updated at 1:30 p.m. on March 2: Doe's attorney Justin Dillon tells me he's thrilled with the verdict. "As far as I know, our client is the first plaintiff in the country to win summary judgment in a campus sexual assault case. We are extremely pleased with the result and look forward to seeing the judge craft a just remedy."