The University of Southern California found a male student, "John Doe," responsible for sexual assault and suspended him for two years. But his alleged victim, a female student, "Jane," maintained that the sex between them was consensual.
Doe was ultimately punished, not because he hurt Jane, but because he did nothing to prevent two other males from having rough sex with her—from slapping her on the buttocks—during an orgy.
"We agree with John that the evidence does not support the Appeals Panel?s findings as to either violation," wrote Associate Justice Audrey Collins, on behalf of two of her colleagues. "There is no substantial evidence that John encouraged or permitted other students to slap Jane on the buttocks in violation of section 11.44C, because the evidence does not demonstrate that John knew they would slap Jane nor that John was in a position to prevent them from doing so."
The incident took place at an off-campus fraternity party in January of 2013. Doe was a member of the fraternity: the two other males who attended the part and were involved in the incident, "Student 1 and Student 2," were students at a different university. Jane attended the party with a group of friends.
After dancing together, Jane, Doe, and Student 1 went off to a bedroom together to have sex. All agree that this encounter was consensual, according to the court's decision.
Later that evening, Jane and Doe returned to the bedroom to have sex again. Jane maintains that their sexual activity remained consensual, but other men—likely including Students 1 and 2—entered the room and also began performing sexual acts on Jane. These activities became rough, and culminated in one or two of the men—not Doe—slapping her butt.
At no point did Jane tell any of the men to stop, but she did begin to cry after the slapping. All sexual activity then ceased. Jane later texted Doe that she had a good time with him, but "your friends suck though." She approached him again at a party some weeks later, but he declined to dance with her.
Months later, in August of 2014—after discussing her "confidence issues" with a counsellor—Jane decided that the incident constituted sexual assault and filed a complaint. Still, she maintained that she had consented to sex with Doe: it was the other men who had violated her.
Consider that for a moment. Jane said her sexual activity with Doe was consensual. The university then made the paternalistic and indefensible decision to override her opinion on the matter and described their sex as rape anyway.
The investigation process involved many of the same drawbacks common to university sexual misconduct cases: a process biased against the accused, limited methods for the accused to examine the evidence against him, or even the charges, etc. He was eventually found responsible on nine of the 11 charges and suspended for two years.
Doe appealed the decision to USC's Student Behavior Appeals Panel. Jane, despite describing her encounter with Doe as consensual, wrote a letter to the panel in support of his suspension:
Jane submitted a letter detailing the difficulties she had experienced after the incident, which she characterized as a rape. She also stated that she is uncomfortable on campus knowing that John was still there, and concluded, "I do not believe that the University is enforcing its Title IX responsibilities for responding effectively and immediately to reports of sexual harassment, or quelling what is currently a hostile environment. I expect that the University will hold [sic] its original decision for my case in order to ensure my safety, comfort, and peace on this campus."
The panel agreed with Doe—and Jane, for what it's worth—that their sex was consensual, and thus cleared him of seven of the nine charges. But, astonishingly, the panel maintained that his suspension was still valid because he had "encouraged or permitted the slaps." In other words, the panel found that Doe had a responsibility to prevent Jane from engaging in rough sex with two other men, even though she had voiced no objections at the time.
Doe's suspension was reduced from two years to one.
His lawsuit contended that USC initially suspended him based on one false theory—that he had assaulted Jane—then reversed course and suspended him for completely different, equally ridiculous reasons—his failure to intervene. He also alleged a variety of other due process abridgements.
Thankfully, the court of appeals agreed with him. Its decision is a strong affirmation of both due process protections and common sense. USC obviously denied Doe a fair hearing, relied on hearsay to convict him, and nonsensically suspended him for the non-crime of failing to stop the butt-slapping.
The College Fix's Greg Piper cautions civil libertarians not to get too excited, however:
Fans of due process should not overestimate how much this one ruling – in a state appeals court, remanding a case to the trial court – will affect future litigation going forward.
But it's one piece in a patchwork of rulings that suggest judges will increasingly look skeptically at the typical protocols in campus adjudications. It's useful ammunition to stateand federal lawmakers who are hoping to rein in abuses by campus administrators and federal bureaucrats who are more driven by PR than the rule of law.
Jane's contention that USC is not living up to its Title IX obligation unless it removes Doe from campus deserves criticism as well. How could it possibly be the case that Title IX—a one-sentence-long federal statute mandating gender equality in higher education—obligates a private university to discipline a student for not stopping another student from having rough sex with non-students at an off-campus party?