A former Ohio University student who last year won $25,000 in damages from OU for slander in connection with an alleged 1997 sexual assault has not yet abandoned his legal case against the university.
Benjamin Mallory said Friday that even though the Ohio Court of Claims last December ordered OU to pay him damages for one of its officials having portrayed him as a sex criminal, he still wants to appeal a separate, unfavorable ruling in his case by the U.S. Sixth Circuit Court of Appeals.
The federal court in late 2001 dismissed a gender discrimination suit by Mallory, in which he alleged that OU treated him unfairly because he is male, when it punished him more severely than a female student with whom he had drunken sex in a dormitory shower. (Mallory was expelled over the incident, and also charged criminally.)
""For the same behavior, for two intoxicated individuals... they took action against me but not her,"" Mallory alleged. ""Basically their position being, I'm responsible for her behavior, instead of just my own.""
Mallory was attending OU in 1997 when he was involved in an incident that resulted in criminal charges and a heavily publicized trial in Athens County Common Pleas Court. After a night out drinking with fellow student Audrey DeLong to celebrate her 21st birthday, Mallory took DeLong back to his residence hall, where the two had sex in a dorm shower. Both were intoxicated, but some witnesses claimed that DeLong appeared far drunker than Mallory, and was not coherent enough to give consent to sex.
Mallory was tried for sexual battery in Athens County Common Pleas Court, but a jury deadlocked 11-1, with the majority wanting to acquit, and the case was dropped by the county prosecutor's office. Mallory sued OU for slander after an OU official, speaking for publication to The Athens NEWS, said that despite the trial outcome, she still believed he was guilty of a sex crime.
In June 2000, the Ohio Court of Claims decided against Mallory, ruling that the published comments by Jeanine Woodruff, then OU's assistant director of Health Education and Wellness, were her opinion and therefore constitutionally protected speech. Mallory appealed, and in 2001 Ohio's 10th District Court of Appeals overturned the Court of Claims ruling and sent the case back to the lower court to decide damages. In December, Court of Claims Judge Fred J. Shoemaker awarded Mallory $25,000.
Mallory's discrimination suit, meanwhile, which claimed that OU violated federal Title IX gender equity regulations, had not fared so well. After losing in U.S. District Court, he appealed to the Sixth Circuit Court, which upheld the ruling in OU's favor. The district court had noted in its decision that one reason why DeLong was not punished in connection with the shower sex incident was an OU policy that sexual assault victims are not punished for intoxication offenses if they come forward to report an assault.
Now Mallory is taking his sex discrimination case to the highest court in the land, though he's doing it without the help of his long-time Cleveland attorney, Jan Roller, who won him the $25,000.
Mallory said that Roller ""for better lack of words, is exhausted,"" and has dropped out of the case, which he is handling pro se (as his own attorney). He said he believes, based on the short, unpublished opinion in the Sixth Circuit case, that he has a good chance with the U.S. Supreme Court. He has appealed to the high court to take the case.
OU's legal affairs office could not be reached for comment on the appeal Friday.
In his petition for writ of certiorari, Mallory argues that OU is wrongly taking the position that some Ohio state laws and constitutional protections do not apply in his case.
""Ohio University is not immune from federal and state laws,"" he states in his appeal. ""Since when does the 'United States Constitution' and 'equal justice under law' stop at the front door of Ohio University?""
Mallory said Friday that both the district and circuit court have agreed that there is no firmly established standard for deciding when Title IX has been violated in the context of a campus disciplinary hearing. ""My case is unusual and rare,"" he said, and he hopes to convince the Supreme Court to review it with the aim of establishing a consistent standard to use in such cases.
""I want the Supreme Court of the United States to adopt a consistent and impartial standard for analyzing my case,"" Mallory said. ""And by doing that, it will require the Supreme Court of the United States to remand the case back to the lower court for a just trial on the merits.""
Mallory, who claims in his appeal that his disciplinary record and expulsion from OU have barred him from acceptance to most graduate schools, reported that he is currently working at a Big Bear grocery in Columbus.
""I have a degree in biology, and I'm working at Big Bear,"" he said. ""It's a pretty sad story. I had so many goals in my career, to become a doctor, and I'm working at Big Bear.""