A Penn State student has filed a federal lawsuit against the university, citing the violation of his rights to due process and equal protection during a sexual assault disciplinary prosecution.
The lawsuit stems from an Office of Student Conduct investigation into an alleged sexual assault involving the student, identified as John Doe in the complaint, and a former female student, identified as Jane Roe.
The investigation determined that Doe coerced Roe, who has since transferred, into having sex with him through text messages and conduct that amounted to “pressuring” and “cajoling,” according to the complaint, which was submitted by Doe and his lawyers on July 18. As a result, Doe was suspended for one year at a hearing in April.
The focal point of Doe’s lawsuit is that after a University Title IX Hearing Panel originally determined that he was liable for the sexual assault and suspended him in April, Assistant Vice President for Student Affairs Danny Shaha set the determination aside because he believed it misinterpreted Penn State’s definition of coercion as it applies to consent. Shaha then requested Student Conduct to have a new panel preside over a second attempt to discipline Doe.
The new hearing was scheduled to take place earlier this week on July 23. On July 16, just a week before the hearing, Title IX Coordinator Chris Harris allegedly notified Doe of a new definition of coercion that was put into use and that the plaintiff believes was “retrofitted” to his situation. The new definition explicitly includes “cajoling” as a means of coercion.
Below is the new definition of coercion:
“Coercion” is an unreasonable amount of pressure to engage in sexual activity. Coercion is more than an effort to gain consent, or persuade, entice, or attract another person to engage in sexual activity. Coercion includes elements of pressure, (e.g., duress, cajoling, compulsion or abuse).
When determining if an individual’s behavior constitutes coercion, context is everything. For example, seduction is reasonable, and coercion as unreasonable. Seduction is welcomed sexual advances that may initially be rebuffed but where the object of the pressure ultimately wants to be convinced to engage in sexual activity or welcomes the activity, or a reasonable person would perceive it so.
Coercion, however, is the point where the pressure is or becomes objectively unwelcomed and unreasonable, or the point when a person concedes to sexual activity due to the use of words or behavior that causes or threatens to cause severe emotional distress and/or psychological harm.
It’s important to realize that people negotiate sex all of the time. Some amount of pressure may be okay, but too much pressure crosses the line and becomes unreasonable.
In determining what is an unreasonable amount of pressure, case managers, hearing officers, and panels should consider four factors: (1) duration (over what period of time is the pressure occurring?), (2) frequency (how many times is the pressure occurring?), (3) isolation (does the respondent isolate the complainant while pressuring, and does that change the dynamic?), and (4) intensity (does the respondent move beyond trying to convince the complainant of the respondent’s sexual prowess or how badly the respondent wants sex and turn the tables on the complainant, attacking the complainant’s values, morals, religion?).
After considering all of the factors noted above, if it is determined that the amount of pressure was unreasonable, then coercion was present and there was no consent. If, on the other hand, after considering the factors noted above, it is determined that the presented pressure does not rise to the level of unreasonable, then coercion was not present.
The alleged sexual assault, which Roe reported in July 2018, is said to have taken place in January of that year when Doe and Roe were freshmen. The panel determined that Doe’s “flattering” of Roe during these interactions, in person and via text message, equated to pressuring and cajoling, which the panel viewed as coercing her into having sex and therefore being unable to give consent.
According to the complaint, Doe and Roe engaged in multiple attempts at sexual activity that they agreed to stop when Roe said she was in pain. In response to questions by Harris for clarification on the panel’s decision, the panel chair said that Doe’s “continual flattery” and “pressuring” of Roe constituted coercion.
“‘She no longer had the guts to keep telling Mr. [Doe] to stop since he just kept going further each time and would not listen to her requests,’” the panel chair said, according to statements referenced in the lawsuit.
Doe is calling the panel’s decision “an erroneous outcome resulting from impermissible gender discrimination.” He is also alleging that the change in definition of coercion violated due process and deprived him of both a fair, reliable, and non-discriminatory trial and the presumption of innocence.
Additionally, he’s accused the university of: not allowing him to call witnesses on his behalf while confronting/cross-examining the accuser and adverse witnesses; not giving access to a “a fair, unbiased and unconflicted tribunal comprised of individuals who are separate and apart from, and not under, the auspices of the University’s Office of Student Conduct ‘prosecutor;’” and not permitting the active and meaningful participation of his attorney advisor.
Doe is seeking to be reinstated as a Penn State student, compensated for monetary damages, and have his disciplinary record expunged.
Read more at: https://onwardstate.com/2019/07/26/penn-state-student-suing-university-over-title-ix-dispute-altered-definition-of-coercion/