The Changing Narrative of Sexual Assault

Brad Koffel, Partner at The Koffel Law Firm

Make no mistake about it. In no way is sexual assault acceptable. Forcing a woman to have sex against her will is a crime, and it should be punished harshly. You only have to tune in to the evening news, read a newspaper, or access an online news site to discover that sexual assaults occur far too often. Alarming, yes. But what is equally alarming is the current climate of claiming sexual assault when none actually exists.

Not so long ago, the narrative was that young women, in the heat of passion, could willingly, intentionally, have consensual sex. These days, that narrative seems to have shifted. Allegations of sexual abuse in high schools and on college campuses are on the rise. For whatever reason – embarrassment, peer pressure, fear of parents’ disappointment – young women are coming forward, claiming they changed their minds, they didn’t want to have sex, they were forced. And they are believed, because law enforcement, prosecutors, and the general public, have a blind spot when it comes to sexual assault. It is not “innocent until proved guilty,” but “it was alleged, so it must be true.” Never mind that it might be a lie.

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As a criminal defense lawyer, I defend people every day, some guilty, some not. But I have become increasingly disturbed – even outraged – at the current climate, where an accuser is allowed, without real evidence, to unutterably alter a young man’s life by an accusation that cannot be backed up by hard evidence.

I recently had a client accused of raping a girl in the basement of his home while his mother worked upstairs. Caught having consensual sex, the girl pleaded that her parents not be told, and the mother agreed. Ten days later the police arrested the boy for rape. Seems the girl was afraid of what her parents would do if the word got out, so she made a preemptive strike. We subsequently proved, through the girl’s own text messages, that the sex was consensual, but by then the damage was done. The boy’s reputation was in shreds, and his entire future was jeopardized.

I think this rise in false allegations can be traced back to the Campus Consent Law and Title IX. Written in 1993, the Consent Law states that each and every sexual act has to have expressed verbal consent. Therefore, the male has to ask for permission to touch a specific female body part. If he wants to switch to a different one, he has to restart the consent dialogue. Change positions? Wait for the go-ahead. And so on. When you look at it closely, the whole idea is absurd. It is ridiculous to think that this might actually stem the prevalence of sexual assault.

Then, in 2011, along comes Title IX. This federal regulation essentially says that no one should be subjected to discrimination if they are in an education program or activity that receives Federal financial assistance. It does not explicitly mention rape or sexual assault, nor does it suggest that colleges and universities adjudicate allegations of rape. It simply bans discrimination in education on the basis of gender. An enterprising law student at Yale took it one step further. She maintained that compelling a women to face her rapist on campus could deprive her of educational benefits and was, thus, discriminatory. A district court judge agreed. So it was that the Campus Consent Law came to be folded into the federal mandate of Title IX, and colleges and universities were authorized to become quasi-criminal courts and adjudicate sexual assault complaints. In these tribunals, there appears to be no consideration of reasonable doubt, just that a preponderance of evidence be pointing to assault. That evidence is largely, of course, the girl’s say-so.

A young man who goes to a hearing without a lawyer is playing with fire. A vote of expulsion is, more often than not, the result – there is no appeal – as well as the likelihood of being labeled a sex offender, which could easily jeopardize further educational and employment opportunities. Without representation, the accused is often not allowed to give his side of the story, nor can he present witnesses to back him up. To make matters worse, everything that is said in the hearing can be turned over to law enforcement, which may lead to criminal charges.

There is no end to the impact of a false allegation. A simple date to a movie with a girl in his Latin Club was escalated to a charge of rape for one of my clients. There was a make-out session in the car, with a bit of fondling going on, but when she said “stop!” he did. A year later, the young lady accused him of rape (she was jealous that he had been named president of the Latin Club). Her father filed a case with the court, citing gross imposition, and the young man was charged. The girl confessed to a friend that she had lied, but by then the school had spent $20,000 on a Latin tutor so she wouldn’t have to face the young man in class. To add insult to injury, the girl’s father sent the police reports to every college admissions office in Ohio, so the young man has been denied admission to those institutions. He is now in the process of suing her family. But the point is, the ordeal has taken an enormous emotional toll on the boy and his family, their lives have been disrupted, and this boy’s very future is at risk. All because of a false allegation.

So what does the future hold in terms of eliminating this “express affirmative consent” imposed under Title IX, and limiting the power that Tile IX conveys to college tribunals? There is no question that the regulations have to be changed, and attorneys have to join parents and other interested parties in changing them, but until there is a high-profile case – perhaps a senator’s son caught up in a false accusation – that will be an uphill battle. What we will see, without a doubt, is an increase in civil litigation, with young men suing their accusers for defamation and their universities for expelling them.

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According to a recent Washington Post article, students who were found guilty of sexual assault despite strong evidence of innocence filed a new due process lawsuit against their college every week in 2016. Save Our Sons is currently tracking 170 lawsuits. Since Title IX was put in place, more than 50 decisions have been made in lawsuits filed by accused students. There will undoubtedly be more to come.

These days, the interaction between young men and women is very combustible. But women who have sex and later regret it should not be allowed to cry rape. Lives are being destroyed. Every case warrants a closer look to determine if there is a motive for the accuser to lie. All of us, working together, need to increase public awareness of this epidemic and fight hard for justice for all.