McLEAN, Va. ― A student who said he was wrongly expelled from George Mason University for engaging in consensual, sadomasochistic sex has won a federal lawsuit demanding his reinstatement.
The student, who is identified only as John Doe in the lawsuit filed in U.S. District Court in Alexandria, was expelled in 2014. His ex-girlfriend said she was sexually assaulted, but the expelled student said administrators ignored evidence that they had been in a consensual relationship that featured bondage and sadomasochism. The student said administrators also wrongly overruled a Sexual Misconduct Board that had exonerated him.
Judge T.S. Ellis ruled in favor of the student in an opinion issued last month and ordered him reinstated. But a hearing is scheduled for Friday to determine whether the student could be subject to a new round of disciplinary hearings at the university.
The student enrolled at GMU as a freshman in 2012, according to court records, and began a relationship with a female student at another university that lasted for more than a year. After they broke up, the ex-girlfriend told school officials and police about what she considered in hindsight to be sexual assaults.
In the fall of 2014, a three-person Sexual Misconduct Board exonerated the student after holding a 10-hour hearing, but the ex-girlfriend appealed that finding. Brent Ericson, an assistant dean of students, appointed himself to hear the appeal, and ordered the student’s expulsion.
In his ruling, Ellis said the appeals process was not conducted fairly, and said Ericson had already made up his mind to expel the student before even hearing the male student’s side of the story,
Ellis rejected a broader challenge that claimed Mason’s policies on sexual misconduct wrongly classified all sadomasochistic sex as a violation. “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,” Ellis wrote. As a result, he said, states have a legitimate interest in regulating the activity, and individuals do not have a constitutional right to engage in it.
Justin Dillon, one of the student’s lawyers, said it is rare for a college student to win reinstatement in federal court for an expulsion over sexual misconduct. Because there is so little precedent, Dillon said it’s all the more important that the judge fashion a remedy that will deter Mason and other schools from trampling on students’ rights. The judge has already barred the student from collecting any monetary damages, so Dillon is asking that the student be reinstated and that Mason be barred from re-litigating his client’s alleged misconduct.
“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,” Dillon wrote.
But the university’s lawyers say they should be allowed to hold another hearing. The school says it has an obligation to keep its campus safe, and that there are numerous reasons to believe this particular student could pose a threat. In court papers, the university says there was evidence at the hearings that the expelled student went beyond the agreed parameters of his sexual relationship, sometimes continuing to engage in sexual activity even after the girlfriend had invoked a safe word. And the student had a record of disciplinary problems ― he was taken to a counselor as a freshman after someone noticed he had carved “kill them” onto his knuckles, and had also been punished for carrying a “skinning knife” and blackjack on campus.
“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,” Assistant Attorney General David Drummey wrote in his brief on behalf of GMU.