A College Student Accused of Assaulting His Girlfriend

Even with the facts on his side, our client faced an uphill battle against his unyielding ex. When her attempts to have him removed from campus failed, she took him to court.

Case Summary

The accusation: That George committed a sexual assault when he prepared to penetrate Ellen, his girlfriend, in the midst of other sexual contact.

The petition: Ellen filed a sexual assault protection order (SAPO), asking a court to find that George had sexually assaulted her.

The stakes: George could have had restrictions on his movements around his college campus, and other places frequented by Ellen, for years.

The defense Alexei Garick and David Marshall presented: Although Ellen had told George before they began the sexual activity that she did not want it to included full intercourse, he reasonable concluded from her arousal during the activity that she had changed her mind. So he moved into position to penetrate her. But when she told him she had not changed her mind, he immediately gave up the idea. There was thus no sexual assault; he respected her wishes as soon as she made clear they had not changed.

The result: After a full hearing on whether there had been a sexual assault, the judge ruled that none had been proven and dismissed Ellen’s petition.

What helped win the case: Ellen testified that she had told the college’s Title IX investigator several important details about the incident that the investigator had not included in her long report. In cross-examining Ellen, we emphasized that the investigator’s report drew conclusions that implied Ellen had not told her those details. Ellen contended that the investigator was biased against her; but there was no reason for the investigator to be biased.

After our cross-examination it appeared that Ellen had not told the investigator what she claimed she had told her. And it appeared she had not reported those details to the investigator because they hadn’t really happened.

Case Discussion

Victim Mentality Runs Amok

by David S. Marshall

When we first spoke with George* about the sexual assault protection order proceedings against him, his defense seemed quite strong—so strong that most people would have thought he didn’t even need a lawyer. But Ellen, the woman seeking the “SAPO” (as sexual assault protection orders are known in Washington State), was both tenacious and intelligent. That combination made her a dangerous adversary.

So we were just as tenacious in defending George. And George won the case.

George and Ellen were both studying art at a college in Washington.  They developed a sexual relationship. George wanted romance to be a part of the relationship, but to Ellen they were just “friends with benefits.”

One evening Ellen was at George’s apartment. She decided to spend the night, and they both agreed that they did not want to have intercourse. However, they both did want other sexual touching, and they agreed on that.

The two were naked in bed kissing while George was “fingering” Ellen. He construed Ellen’s response to his sexual touching to show she had changed her mind about having intercourse. He then moved his body into position for his penis to penetrate her. Ellen recognized what he was doing and told him no, she still did not want that. As both told the story later, George immediately listened to Ellen and stopped what he was doing, and the two went to sleep.

When they awoke in the morning, they were both aroused and chose to have conventional intercourse. Then Ellen departed to have breakfast at her apartment before going to class. At the time, she gave George no reason to suspect that she was upset about any of the previous night’s events.

A few days later, Ellen texted George and demanded an apology. She said George had violated her by moving into position to have intercourse when she had told him before they got into bed that she did not want to have sex.

George believed his behavior had been completely respectful of Ellen’s right to limit sexual contact, and he told her so. He said he was sorry she was upset, but did not admit to any wrongdoing.

Ellen then complained to college officials that George had tried to rape her. The college went through its full disciplinary process and concluded, several months later, that George had not committed any misconduct.

During the disciplinary proceedings, both students were placed under “no communication, no retaliation” rules; neither was to communicate with the other, and neither was to retaliate against the other. George was happy to have that restriction remain even after the college  cleared him of Ellen’s charge.

However, Ellen was not finished .

One evening George attended a student art exhibition. He did not know until he arrived that Ellen was one of the students whose art was on display.

Ellen spotted George at the exhibition and had a faculty member tell him he was not permitted to be there. George disagreed. Campus police were called and told George he had to leave. He still disagreed, but he left without further protest.

Had he been permitted to stay, George would have found Ellen’s art interesting. It was focused on themes of male domination and rape culture. In one of her pieces she had subtly included photos of George’s face.Not all of Ellen’s public denunciations of George were subtle. She made and showed a class a video in which she identified him by name as a rapist. She also posted a sign at a dormitory accusing him of rape.

George complained to the college that Ellen was violating the “no communication, no retaliation” order. Ellen complained that George had violated it by appearing at the display of her art.

While those complaints were pending, Ellen moved her campaign against George from the campus to a superior court of Washington State. She filed a statement that George had sexually assaulted her and petitioned for a sexual assault protection order. The court immediately issued the order and scheduled a later hearing for George to present any defense he had.

In the meantime, George was prohibited from coming within 50 feet of Ellen. Because the college campus was small and George and Ellen were both art students, George lived in fear that he would unintentionally violate the order and be sent to jail.

When he learned Ellen had started SAPO proceedings and obtained a temporary order against him, George decided to seek legal counsel. Soon we at the Marshall Defense Firm were preparing to defend George at the coming SAPO hearing.

The court would not be bound by the college’s decision in George’s favor. Ellen was urging it to find that George had sexually assaulted her, and it was free to do so. In light of Ellen’s tenacity and intelligence, we decided to take nothing for granted. Our work needed to cover all bases.

We had to decide what part of the available evidence to use and how to present it. The college’s investigation had generated a lot of information. And George had a lot of other information about his relationship with Ellen. Judges who hear SAPO cases usually don’t have much time to read briefs, so it was important for us to cull the information that didn’t have much persuasive power and to organize the rest into the most compelling package possible.

Alexei visited the campus, to get a deeper understanding of the key events and of George’s difficulties in living under the order that would remain in effect until the final hearing.

Soon after we started work, we learned that Ellen had a lawyer, too. Hers came from the Sexual Violence Law Center. The five lawyers there focus on representing persons who are pressing sexual assault accusations. Because of their level of expertise in sexual assault cases, it was especially good that George also had lawyers who focus on such cases.

We learned that Ellen had embraced more tightly the role of rape victim. She got a therapy dog. She took to walking around campus in a hooded black costume with a skeleton painted on it.

We explored with Ellen’s lawyer the possibility of an out-of-court settlement. Maybe a written agreement that George and Ellen would stay away from each other could take the place of pursuing the SAPO case to a final decision. This would have spared both sides the risk of losing and the time and expense of more SAPO litigation.

Before long, though, we stopped negotiating. Part of a lawyer’s job is to know when negotiating is just a waste of time. Ellen’s demands were so far from anything George could accept, and Ellen’s focus on her chosen identity of victim, that it seemed nearly impossible the two sides could reach agreement. And we had to wonder whether Ellen would keep an agreement even if she made one.

George did accidentally come within 50 feet of Ellen once as we were preparing for the hearing, and she called the police on him. Fortunately, the police learned enough of the background of the situation to realize no arrest was needed.

We had to fight hard just to get the case concluded. Since George would remain under the temporary order until the final hearing, he was eager for that hearing to happen, and Ellen had an incentive to delay it. We filed a motion against delay, presented evidence of the temporary order’s hardship for George, and argued vigorously in court against more delay. The judge granted our motion and gave Ellen’s lawyer only a five-minute break to finish her preparations for the final hearing.

Before the hearing, we had no evidence of who had posted the sign saying, “George is a rapist.” In cross-examining Ellen at the hearing, Alexei was able to get her admission that she had posted it.

Ellen testified that she had told the college’s Title IX investigator several important details about the incident that the investigator had not included in her long report. In cross-examining Ellen, we emphasized that the investigator’s report drew conclusions that implied Ellen had not told her those details. Ellen contended that the investigator was biased against her; but there was no reason for the investigator to be biased.

After our cross-examination it appeared that Ellen had not told the investigator what she claimed she had told her. And it appeared she had not reported those details to the investigator because they hadn’t really happened.

 

Our work paid off. After the judge had heard all the evidence, he ruled that no sexual assault had been proven. He dismissed Ellen’s petition and released George from the temporary protection order.

 

 

*All names have been changed to protect privacy.