By Ben Gee “But we can never say this enough: Mistreatment of others is wrong by any standard of our society, by any standard of right or wrong. It is especially wrong in this community, where we — rightly — insist on developing within our students the moral obligation to treat others with respect at all times and under all conditions; where we demand that members of our community never stand idly by when we see others violate those values. It is wrong anywhere. It is espe­cially wrong at this university.”

– Washington and Lee Uni­versity Press Release, “A Time to Examine, Affirm our Com­mitments,” Dec. 1, 2014

As the national con­versation on campus sexual assault contin­ues to grow in size and scope, we once again witness the law of unintended consequences. In 2011, the US Department of Education’s Office for Civil Rights (OCR) published a let­ter calling for universities to take the lead on dealing with sexual misconduct. The OCR letter threatened schools with the loss of Federal funding and other consequences if they failed to solve sexual assault problems on campus. Since then, using the guidelines published by the Federal Govern­ment, many institutions have made their policies much stricter. No university wants a dangerous sexual culture, nor a reputation for creating one. However, the results of these new policies have incited debate and raised con­cerning questions. Many assert that university efforts to prosecute alleged rape/assault cases disregard the Fifth Amendment right to Due Process, and violate contracts with their students.

Do universities determine guilt in ways that unjustly align to predetermined gender-based assumptions? Are accused students perceived to be inherently guilty, the inevitable corollary to our doctrine against doubting the victim? These are questions we now have to confront at W&L.

Washington and Lee University currently conducts sexual misconduct investigations internally. This policy seeks to deal with incidents independent of law enforce­ment, even though the Federal Government defines them as crimes. As a result, W&L has become involved in an unwel­come court battle after attempt­ing to resolve a case of sexual misconduct on our campus. By assuming responsibility for these cases, W&L has delayed at least two of its students a clear adjudication of justice.

Beginning in late 2014, Wash­ington and Lee University has occupied a spotlight in the national sexual as­sault policy debate with the case of John Doe vs. W&L. In November 2014, W&L found a student, John Doe, guilty of sexually assault­ing another student (‘Jane Doe’), and expelled him from the school. John Doe responded by fil­ing a lawsuit against W&L alleging three things: First, that the school dis­criminated against him during the proceedings in viola­tion of his rights under Title IX; second, the university denied him his Fifth Amendment right to Due Process; third, that a violation of John Doe’s contract with the school occurred during his prosecution. John Doe de­mands financial damages from W&L and reinstatement to the University. The case remains scheduled for trial on April 22, 2015, but in April 2015 W&L’s legal team filed for dismissal. Subsequently, in an important devel­opment, US District Judge Norman K. Moon reviewed W&L’s motion this summer. On August 5, Judge Moon denied W&L’s request to dismiss the case, and struck down two of John Doe’s three central allegations.

The Judge’s report outlines John Doe’s view of events, and the supporting evidence for Doe’s allegations of misconduct by Washington and Lee. The report con­tains the only details yet available to the public. Even if partially true, John Doe’s story gives us much to con­sider. According to John Doe, he and Jane Doe first engaged in consensual sex on February 8, 2014, after an off-campus party at which they had both been drink­ing. John Doe reached out to Jane Doe the next day and throughout the next month by phone and Facebook, and she reciprocated his amity. They engaged in sex an­other time the next month, later characterized by both Jane Doe and John Doe as consensual.

John Doe’s account continues; On March 15, 2014, Jane Doe saw John Doe kissing a different female at a party event and left early, upset. By August 2014, John Doe and this other female became an official couple. During that summer, Jane Doe worked at a women’s clinic for sexual assault issues, and in July she began to tell her friends that she believed she had been sexually assaulted back in February. At the start of the next aca­demic year, Jane Doe and John Doe expressed interest in the same Nepal Spring Term program, and Jane Doe experienced a “strong physical reaction” to seeing John Doe’s name alongside hers on the acceptance list. On October 13, Jane Doe reached out to W&L’s Title IX co­ordinator, Lauren Kozak, to report John Doe for sexual­ly assaulting her. However, she requested that no inves­tigation take place. On October 30, when the final list of students going to Nepal was made public with both names present, Jane Doe contacted Ms. Kozak again - this time to request an investigation of John Doe.

The report’s alleged account of W&L’s investigative process presents a worrying portrait of potentially un­just and possibly discriminatory school policy. John Doe was denied legal representation during the inves­tigation, part of the school’s new policy adopted from stricter Federal recommendations. During the evi­dence-accruing process, Administration purportedly ignored witnesses and testimony from John Doe and prevented him from viewing the exact nature of Jane Doe’s allegations. The investigation’s evidence selec­tively included quotations and facts, including a spliced quotation from Jane Doe: “I usually don’t have sex with someone I meet on the first night,” which strangely omits the second part of her statement, “but you are a really interesting guy.” The Administration attempted to convince John Doe to withdraw from the school, and even reached out to his student honor advocates to ask them to convince him as well. John Doe refused to depart, however, because he still believed in his own innocence.

At a November 18 meeting, school Administration presented John Doe with a list of individuals considered for the Student Faculty Hearing Board (SFHB). He was asked if he had any reservations about its members, but he claims that he had no opportunity at that time to re­view the impartiality of its specific representatives. The list included W&L Professor David Novack, who has written academic pieces that indicate bias in sexual mis­conduct cases such as “Rape Nullification in the United States: A Cultural Conspiracy.” John Doe indicates that had he known of Professor Novack’s academic biases, he would have objected to Novack’s inclusion on the SFHB. However, John Doe was not given an opportu­nity to effectively evaluate the impartiality of his judges. The Administration next denied John Doe’s request to record the SFHB hearing on November 20, where Jane Doe was present. She was protected from John Doe during the hearing by both a physical barrier and limits to what questions the SFHB could ask her – if any ques­tions risked provoking her. John Doe claims that Jane Doe’s testimony contained many unchallenged incon­sistencies, at times referring to John Doe as “disrespect­ful, dishonorable, and “having treated her as though she were worthless,” but at other times calling him “smart, interesting, sweet, and genuinely interested in her.” John Doe’s Honor Advocates made two further requests for transparency on the events of the hearing, but Admin­istration denied both requests.

The next day, the SFHB found John Doe guilty by the new, lower standard of “Preponderance of Evidence” rather than the former policy “Beyond a Reasonable Doubt,” in a 3-1 decision. John Doe immediately filed an appeal to the University Board of Appeals (UBA), but it was denied on December 3 without explanation in a 2-1 vote.

John Doe’s Title IX allegation argues that W&L’s in­vestigation “occurred in an environment that created pressure for the University to punish male students for sexual misconduct.” He suggests that W&L felt com­pelled to take an overly harsh stance on sexual assault issues, unduly influenced by the well-known Federal Office for Civil Rights’ (OCR) “Dear colleague” letter in 2011. Additionally, the notorious and since disproven Rolling Stone article A Rape on Campus: A Brutal As­sault and Struggle for Justice at UVA was published just twenty-four hours before the school’s decision to expel John Doe. He believes that the Administration’s inves­tigation was, instead, a public statement against sexual assault. Therefore, John Doe asserts in the report that he was expelled from Washington and Lee without suf­ficient evidence or a fair investigative process, in viola­tion of his Title IX rights against gender discrimination.

Judge Moon’s report concluded that John Doe’s claim of Title IX discrimination will continue, but that his two other claims will not. Notably, although Judge Moon’s legal reasoning excuses W&L from prosecution on the charges of Due Process and contract violation, the re­port does not eliminate W&L’s higher responsibility. For the issue of Due Process, Judge Moon stated that because W&L is not a public school and was not “co­erced” by the Federal Government into adopting its stricter standards, the school cannot be prosecuted. Relative to contract violation, Judge Moon stated that W&L did violate the student handbook’s provisions for “good faith and fair dealing.” However, the hand­book also states that “The policies of Washington and Lee University are under continual examination and revision.” Consequently, the judge determined that the handbook cannot be considered a mutually bound engagement between W&L and its students. However, we hold ourselves to a higher moral standard. Even if legally permissible, many of W&L’s purported actions throughout the process dishonor those moral values and fail to uphold the unique qualities of our institution.

Washington and Lee’s policy of internally investigating sexual misconduct cases has done a disservice to both John Doe and Jane Doe, as well as the university community as a whole. The case should have been re­solved by law enforcement. W&L’s involvement has not just led to legal jeopardy, but an existential threat to who we say we are as an intellectual and educational com­munity. This case will more than likely happen again if university policy is not changed.

John Doe’s case will reach trial on April 22, and W&L may become the first university to lose a lawsuit of this nature. It is possible that his expulsion could be re­versed. We still await Jane Doe’s testimony. We still do not know what actually happened on the night of Feb­ruary 8, 2014. Current assumptions on both sides have led to controversy and confusion. What we do know is that a Judge has raised serious concerns about W&L’s investigative process. If not rectified, other W&L stu­dents are at risk of entering a similar situation to John Doe and Jane Doe.

The John Doe vs. W&L case brings to light an urgent discussion for our campus and our community as well – the question of “grey rape” and the idea that “regret equals rape.” Should students be held accountable for the changing attitudes of sexual partners for months or even years after achieving immediate consent? In prosecuting John Doe so vigorously, did W&L inadver­tently create an environment in which students become victims to retroactive denial of consent? Judge Moon wrote, “Plaintiff’s allegations, taken as true, suggest that W&L’s disciplinary procedures, at least when it comes to charges of sexual assault, amount to a ‘practice of railroading accused students.’” This finding of the court warrants further reckoning, and could have severe ramifications as we have already seen across the coun­try. Recent literature for potential male undergraduates warns against applying to W&L, and on October 15, NPR conducted a segment discussing the dangerous culture at some universities of “guilt before innocence,” including W&L.

Two weeks after the Rolling Stone article was pub­lished and John Doe was expelled, W&L issued a re­sponse to the article titled, “A Time to Examine, Affirm our Commitments.” In their reactionary response to the article’s slanderous fiction, W&L states: “Mistreatment of others is wrong by any standard of our society… It is wrong anywhere. It is especially wrong at this uni­versity.” As we await a decision, it would be wise for the Administration to ask itself if our institution is truly honoring its commitment against mistreating others by internally investigating instances of sexual miscon­duct. The welfare of two fellow students is at risk, and with them, all of us. If we are to be a community that holds true to what we believe, it is time to reconsider our framework for sexual misconduct issues. After all - in the words of our Administration, mistreating others no matter the circumstance is “especially wrong at this university.”

Additional Reading:

Judge Norman K. Moon’s Report, August 5, 2015: http://www.leagle.com/decision/In%20FDCO%20 20150806C94/DOE%20v.%20WASHINGTON%20 AND%20LEE%20UNIVERSITY

The Roanoke Times, December 16, 2014:

http://www.roanoke.com/news/education/higher_ education/student-claims-he-was-expelled-from-w-l-for-consensual/article_5c28779e-a237-5e8d-b958-a1a­2dadd83f1.html

The Roanoke Times, January 28, 2015:

http://www.roanoke.com/news/education/higher_ education/washington-and-lee-seeks-dismissal-of-for­mer-student-s-suit/article_d441b4f3-b9b2-5c5a-941d- 4af1ae0f6486.html

The Roanoke Times, March 25, 2015:

http://www.roanoke.com/news/virginia/washing­ton-and-lee-student-accused-of-rape-files-new-law­suit/article_4d084d7f-8883-5c53-b8cf-1fdd531cab64. html

The Roanoke Times, May 22, 2015:

http://www.roanoke.com/news/education/high­er_education/w-l-defends-policies-on-sexual-assault-allegations-seeks-lawsuit/article_86d51102-4c82-560a-b00d-f06a6b3b3c50.html

The “Dear Colleague” OCR Letter, April 3, 2011: http://www2.ed.gov/about/offices/list/ocr/letters/col­league-201104.html

NPR Article, October 15, 2015: http://www.npr. org/2015/10/15/446083439/for-students-accused-of-campus-rape-legal-victories-win-back-rights

Rolling Stone Article Controversy Analysis, April 5, 2015:http://www.rollingstone.com/culture/features/a-rape-on-campus-what-went-wrong-20150405

Boston Globe, Harvard Sexual Assault Debate, Oc­tober 15, 2014: http://www.bostonglobe.com/opin­ion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html

Washington Examiner Article, August 7, 2015: http://www.washingtonexaminer.com/judge-upholds-accused-students-gender-bias-claim/ article/2569840

Heritage Foundation Article, August 18, 2015:http:// www.heritage.org/research/commentary/2015/8/why-any-male-studen-should-think-twice-before-applying-to-washington-and-lee-university

The Roanoke Times, August 6, 2015:

http://www.roanoke.com/news/virginia/w-l-stu­dent-expelled-for-sexual-assault-is-allowed-to/article_ b599a12b-e558-578f-bc75-3d666b2b237a.html

Washington and Lee Press Release, December 1, 2015:http://www.wlu.edu/presidents-office/messages-to-the-community/a-time-to-examine-affirm-our-commitments