John Doe, as he is identified in the federal lawsuit in U.S. District Court in Alexandria, Virginia, was expelled from George Mason University in 2014 for engaging in an unconventional relationship. The student expelled for consensual sadomasochistic sex wins case for reinstatement as a student. As they say, “Sticks and stones may break my bones, but whips and chains won’t prevent me from graduating.” Well, OK, so I paraphrased a bit.
John Doe, as he is identified in the federal lawsuit in U.S. District Court in Alexandria, Virginia, was expelled from George Mason University in 2014 for engaging in an unconventional relationship. The student expelled for consensual sadomasochistic sex wins case for reinstatement as a student. As they say, “Sticks and stones may break my bones, but whips and chains won’t prevent me from graduating.” Well, OK, so I paraphrased a bit.
Mr. Doe became a GMU student in 2012, enrolling as a freshman. Shortly after that, he started a relationship with his now ex-girlfriend, a student at another university. Their relationship continued for over a year and included bondage and sadomasochistic sexual activities, all done with consent, including a “safe word.”
After the couple ended their relationship, the ex-girlfriend informed school officials and police that, in hindsight, she considered the S&M activities to be sexual assaults. If you haven’t clicked on the link above, a safe word does not magically appear, nor is it simply assumed. As with most safe, sane and consensual bondage/discipline/sadism/masochism (BDSM) relationships, the safe word, as well as many other important conditions, are negotiated prior to the commencement of any BDSM activity.
Unless their relationship was truly unsafe, insane and non-consensual, this couple had at least one, if not more, serious conversations about limits on activities and what safe word each would use if they needed to “tap out” or stop a given activity. While I am not victim blaming in any way, considering their agreed-upon activities to be assaults after a break-up seems questionable, unless, as previously stated, this truly wasn’t a safe, sane and consensual relationship.
Regarding that, a three-person Sexual Misconduct Board heard the case in the fall of 2014. The board exonerated Mr. Doe after a 10-hour hearing. Mr. Doe’s ex-girlfriend appealed the board’s finding and Brent Ericson, an assistant dean of students, personally appointed himself to handle the appeal. At that point, Mr. Doe was expelled and filed his suit for reinstatement.
In Mr. Doe’s complaint, he claimed that administrators disregarded the evidence that the relationship had been consensual and that they incorrectly overruled the Sexual Misconduct Board’s decision.
Apparently, Judge T.S. Ellis agreed. Judge Ellis ruled in Mr. Doe’s favor last month, ordering him reinstated as a GMU student. However, GMU scheduled a hearing for Friday to decide whether Mr. Doe should be tried again in another round of university disciplinary hearings. One is beginning to wonder if the university has a thing for discipline, akin to Doe’s interests.
Judge Ellis’ opinion stated that the appeals process was unfair. He added that Ericson went into the process with the pre-made decision to expel Mr. Doe, even before he heard Mr. Doe’s side of the story. Judge Ellis did, however, reject Mr. Doe’s challenge that GMU’s sexual misconduct policy incorrectly classified S&M as a violation.
According to Judge Ellis, “Sexual activity that involves binding and gagging or the use of physical force such as spanking or choking poses certain inherent risks to personal safety not present in more traditional types of sexual activity.” He continued by saying that states may have a legitimate interest in regulating such activity and that no constitutional right to engage in BDSM activity exists.
As GMU is a public university, it is considered a state actor and, as such, may have the right to regulate such activities. However, one would also argue that there are non-BDSM sexual activities that pose “inherent risks to personal safety,” and are yet classified as “traditional.” Ahem.
One of Mr. Doe’s attorneys, Justin Dillon, commented that it is rare for college students to win federal suits for reinstatement when the expulsion was for sexual misconduct. He added that, because of this, it’s even more important that Judge Ellis’ remedy will make GMU and other colleges think twice before disregarding students’ rights.
Judge Ellis’ order prevents Mr. Doe from collecting any monetary awards. Mr. Doe and Mr. Dillon simply want Mr. Doe’s reinstatement and to halt any further hearings on GMU’s part regarding Mr. Doe’s past conduct.
According to Mr. Dillon, “Mr. Doe just wants to go back to college and get his degree like any other student, without having to look over his shoulder at what Defendants might do to him next.” This, one believes, is a fair remedy. It remains to be seen as to what exactly will be the remedy. Judge Ellis, while granting Mr. Doe’s reinstatement, has not yet set a date for briefing and decision on the issue or whether Mr. Doe will face another GMU hearing.
However, attorneys for GMU disagree. Despite having lost one Sexual Misconduct Board hearing and a federal lawsuit, GMU wants to have another hearing over the same alleged conduct.
The university’s position is that it has an obligation to campus safety and that Mr. Doe could pose a threat to such safety. GMU argues that evidence presented at the hearings shows that Mr. Doe ignored his ex-girlfriend’s “limits” (not the greatest link, but the only one that is work safe. If you want examples, please feel free to engage Google). The school says that there were times Mr. Doe even ignored his ex-girlfriend’s safe word. Obviously, Judge Ellis did not find such evidence compelling and neither did the Sexual Misconduct Board.
However, if such is true, Mr. Doe needs to:
- Stop participating in such relationships until he learns the proper etiquette and definitions of “safe, sane and consensual,” and
- Learn to play by the rules. Limits and safe words are never to be disregarded.
GMU further cites prior disciplinary problems with Mr. Doe, such as the fact that, as a freshman, he saw a counselor after someone saw he had carved “kill them” onto his knuckles. He had also been punished for carrying a “skinning knife” and a blackjack while on campus.
OK, so Mr. Doe had some self-mutilation issues (for which he underwent counseling) and he may have some weaponry issues with no good excuse for carrying such while on GMU’s campus. However, these are prior activities and have nothing to do with Mr. Doe’s alleged sexual conduct which, in this case, is also prior conduct.
According to a brief written on behalf of GMU by Assistant AG David Drummey, “It doesn’t matter what Mr. Doe was charged with, whether it is assault, sexual misconduct, arson, or drug distribution, the most appropriate remedy would be to remit the matter back to the school for a new hearing.”
One wholeheartedly disagrees with Mr. Drummey. The school had a hearing (the Sexual Misconduct Board) and Mr. Doe was exonerated. The appeals process was obviously rigged; even a federal judge saw that much. How then, is Mr. Doe to have real justice if we toss him back to such “open-minded” individuals as Mr. Ericson, who admitted during the federal suit that he had several ex parte conversations with key parties, in addition to admitting that he’d already made up his mind to expel Mr. Doe? How is real justice served if both a GMU Misconduct Board and a federal district court judge find in favor of Mr. Doe but we allow GMU to force him to go through another hearing on an already adjudicated matter? GMU is supposed to have a good law program. Perhaps one of the professors there should explain to administration the concept of res judicata?
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