Due Process

Court Sets Aside USC Student's Expulsion for Alleged Rape

USC's procedures didn't fairly treat the accused, a California appellate court rules.

|The Volokh Conspiracy |

From Tuesday's California Court of Appeal decision in Doe v. USC, one of several recent California appellate cases reaffirming student due process rights (which, under California law, apply in some measure even at private universities):

John Doe appeals from the trial court's denial of his petition for a writ of administrative mandamus to set aside his expulsion from the University of Southern California (USC) for unauthorized alcohol use, sexual misconduct, sexual assault, and rape.

USC student Jane Roe submitted a complaint to USC alleging John had sexually assaulted her in Jane's apartment after they both attended a "paint" party, at which the students splattered paint on each other. Dr. Kegan Allee, the Title IX investigator, who served as the investigator and adjudicator of the complaint pursuant to USC's administrative guidelines, found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.

John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane's apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.

Because Dr. Allee's investigative report and adjudication turned on witness credibility, Dr. Allee should have interviewed all critical witnesses in person or by videoconference to allow her to observe the students during the interview. This was especially important here where there were inconsistencies in the testimony and a dispute over whether the substances observed in Jane's apartment after the sexual encounter were blood or paint from the paint party.

In addition, USC did not comply with its own procedures to conduct a fair and thorough investigation by failing to request that Jane provide her clothes from the morning of the incident and her consent to release her medical records from the rape treatment center….

[Finally], as part of the adjudicator's assessment of credibility, an accused student must have the opportunity indirectly to question the complainant. (UC Santa Barbara, supra, 28 Cal.App.5th at p. 60 [accused student was deprived of right to cross-examine complainant and to present his defense where committee allowed her to refuse to answer questions about the side effects of an antidepressant medication she was taking at the time of the alleged sexual assault on privacy grounds]; Claremont McKenna, supra, 25 Cal.App.5th at p. 1057 [college should have required complainant to appear at hearing in person or by videoconference to allow "the Committee[] [to ask] her appropriate questions proposed by John or the Committee itself"]; Cincinnati, supra, 872 F.3d at p. 406 [accused student had a right to question the complainant through the review committee where the committee had to decide whether to believe the complainant or accused student].) USC's procedures do not provide an accused student the right to submit a list of questions to ask the complainant, nor was John given that opportunity here. If USC proceeds with a new disciplinary proceeding, it should afford John an opportunity to submit a list of questions to ask Jane….

The judgment is reversed and the matter remanded to the trial court with directions to grant John's writ of administrative mandamus….

The opinion is by Judge Gail Ruderman Feuer, who was just appointed to the Court of Appeal by Governor Brown, and, as it happens, is the wife of L.A. City Attorney Mike Feuer (just a fun tidbit; the City wasn't at all involved here, of course). Thanks to Bruce Wessel for the pointer.


NEXT: Taxypayers Off the Hook for Sex Harassment Settlements in Congress: Reason Roundup

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  1. “a dispute over whether the substances observed in Jane’s apartment after the sexual encounter were blood or paint from the paint party.”

    I’m guessing that none of the CSI shows is going to do an episode based on this case.

    1. The evidence of “lack of consent” was blood that may have been red paint? Wow.

      1. Yup. More reason to leave the investigation of serious crimes to the real authorities.

        1. The real cops might confuse a Jolly Rancher or cotton candy with illegal drugs, but even they might have trouble mistaking paint for blood or vice versa.

          1. Lol. Well, at least they’re supposed to preserve the evidence and give the defense a change to test it. Although in this case, the accuser appears to have destroyed the evidence. I’m not sure how that works in real court, though.

          2. They didn’t in the Lindy Chamberlain case. What several forensic scientists swore up and down was not just blood but specifically foetal blood that could only have come from a recently born baby turned out to be paint emulsion.

    2. So the kiddie court doesn’t /know/ it wasn’t blood. Could be, though she made sure no one will know. And though the quantity reported seems /awfully/ excessive for anal sex. If she bled that much she damned well should get to the ER.

      (don’t pass this on to ARWP; he’ll just get all upset)

      1. It’s your people that are the ones doing that disgusting stuff, not me.

  2. I assume he will just be expelled after a “fair” hearing so long as the Stasi [excuse me TiItle IX office] is involved.

    1. Why wait for facts when you can speculate yourself into preemptive outrage!

      1. Why not? That’s exactly how John Doe got expelled in the first place. What’s good for the goose is good for the gander.

        1. How many times do Title IX offices need to be shown to be bad before we can be outraged?

          Court after court are reversing expulsions on due process grounds.

          1. It only takes once. But it has to be real.

            1. https://reason.com/blog/2017/07…..e-by-color

              Two pretty clear examples just from Reason.

              1. Not going to dig into the other side’s characterization of those narratives, so lets assume they are completely as written.
                Bob should use those perfectly good examples, and not make up new ones.

                1. The first one had no sides. The person who was said to be raped repeatedly told the administration that she hadn’t been raped and that the relationship was entirely consensual.

                  The second one had the Jane Doe explicitly saying that she hadn’t sought consent from John Doe before having oral sex with him, but the administration refused to investigate her any further after expelling John Doe.

                2. The whole college Title IX structure is rotten. Kangaroo courts.

                  Did you read the post? They trampled this guy’s rights so badly that even a left wing California court balks.

                  Stasi is accurate.

                  1. So the system worked, a dunderheaded school administration was slapped down, Title IX offices didn’t do anything, which is proof your fantasies contradicting that entire narrative are legit.

                    1. “So the system worked”

                      Which of these stories is an example of the system working?

                    2. Still waiting.

                  2. “Stasi is accurate.”

                    No. Stasi didn’t need to fear the courts.

          2. There’s an letter published in the Chronicle of Higher Ed by three Student Conduct administrators, that chastises the Chronicle for publishing an essay defending DeVos’s new regulations.

            They say, “The publication of this essay by The Chronicle puts its stance of supporting survivors in question and will be a mark on its reputation. We worry that sexual assault survivors, whether they are students, faculty, or staff, will feel traumatized and unsupported by this article.”

            So so the people running these Title IX hearings are claiming that the Chronicle can’t even publish some else’s argument without traumatizing survivors. It’s no wonder at all that Title IX turns out the be a sham process.

  3. “Jane relied on the third witness to help her reconstruct what happened the morning of the incident.”
    So how is Jane’s testimony itself not hearsay?

  4. This is the perfect thread for ARWP to make a comment about anal sex.

    1. I don’t know, it seems like it would be pretty okay in his book. Vaginal sex was consensual, anal sex wasn’t. Clearly not everybody is for the freedom to spread disease through butt sex, just like he claims.

      1. Murky details about what was actually consented to aside, there you go, taking my bait all seriously.

        1. Two points!

    2. It’s exactly why no one should be doing it. The main difference seems to be that women largely only do it with significant others, while gay men will do it with any stranger they meet in truck stops.

  5. From the Op:

    “Emily observed Jane was “very flirty,” putting her arms around young men and sitting on their laps. Jane sat on Austin’s lap, which Sarah thought was “weird” because Austin was “creepy” and “older.” … “[s]he was hanging on people a lot,” sat on a strange male’s lap, and was waving her drink around.”

    I wonder if “Jane” got affirmative consent before sitting on all those people’s laps. It appears that the accuser in this case might be a serial sexual predator.

    1. Good point, quite a double standard.

      “Creepy” is another word women use to say “not up to my hypergamous standards.” As for Austin being older, they are college students, he can’t be but a few years older unless he was some sort of nontraditional returning student.

      1. I reported this spam accidentally, sorry. Not sure what the popup actually said.

    2. She was drunk already when planting her ass on the laps of men without permission. Ergo, by letting her do this, the males were assaulting *her*.

  6. Rape is a very serious crime. It should be prosecuted in the courts and should never be adjudicated by politically-motivated amateurs.

    1. Everybody’s mad at the courts now because a Baylor student accused of rape was not given jail time. The fact that he was not convicted of rape doesn’t seem to matter at all.

      1. He is white and a frat member. Must be guilty.

        1. Truly frat members are the most oppressed minority these days.

      2. They should be mad at the prosecutor, not the courts, since the case ended with a plea deal for a no-contest plea to “unlawful restraint” a class A misdemeanor. So the most the court could have given him anyway was 1 year and the prosecutor was recommending no jail time.

        1. There’s a similar case from Alaska here. There’s an argument that prosecutors should take these cases to juries instead of pleading them down. If you can prove the guy’s a rapist, prove it and send him to prison. If you can’t, leave him alone.

          1. Spoken like someone who has never tried a case or been raped.
            Why doesn’t this superhero “try-em, or free-em” analysis apply to all crimes?

            1. “Spoken like someone who has never tried a case or been raped.”

              The alleged victim in this case apparently took a similar position. I don’t know if she’s been raped or not.

              “Why doesn’t this superhero “try-em, or free-em” analysis apply to all crimes?”

              It certainly should apply to all crimes. Plea bargains where the offer is largely disproportional to the sentence if convicted are coercive. A guy being offered probation is going to plead to avoid even a small chance at a long prison term.

              The worst are the time-served plea bargains where the guy is in custody. The guy sits in the can several months, and then gets, told, “plea and you can go home today, or you can stay here for several more months and hope for an acquittal.” I mean, who’s not going to take that deal?

            2. “superhero ‘try-em, or free-em'”

              I suppose I should be surprised that a lawyer (and maybe a prosecutor?) mocks the idea of “try-em, or free-em” as some sort of nutty idea that has no place in our justice system.

    2. Title IX investigators are not there to find the “truth” or provide any type of fair proceeding. Just read the junk put out by those who advocate the “single investigator model” like NCERHM. Their focus is straight up risk management. Kick out the man equals almost zero liability. The most you will see is if his family has the money and willpower is a lawsuit or maybe appeal to a court if provided for by state law. Keep a so-called “rapist” on campus and not only is that bad PR but then the Feds will come and give you a full on Title IX audit which not only costs millions in staff time and legal fees, but again bad PR.

      So just kick out the man and problem usually solved, except for the man that just lost out on his education, tuition paid for a degree he won’t get, and perhaps permanent stigma for colleges that will mark his transcript as such. Good luck even getting enrolled in community college after getting booted for an administrative sexual assault charge.

      For example, say you own a business and you got an application from one of the Duke Lacrosse “rapists” that were completely exonerated. Would you hire one of them even if they were the most qualified applicant? 99% of hiring managers would say “hell NO”.

      1. I agree with your general point, but the Duke Lacrosse players have turned out fine.

        Reade Seligmann is now at Alston & Bird.


        1. Yes they ended up getting jobs because essentially Alston was shamed into doing so once they were exonerated. I can’t find the link but there was a good follow up story in I believe the WSJ. The players have no direct reports that are women and oddly have offices/work place assignments far away from any women. Why? You don’t need a degree in risk management to figure out the answer to that question.

  7. All these college cases have about the same fact patterns. Man gets drunk. Woman gets drunk. Or sometimes it is members of the same gender, Both are borderline blackout when they engage in sexual activity. (Throw in “fraternity” for extra Title IX points).

    In man vs. woman it is almost always the “fault” of the man for such behavior even if both parties could not legally consent due to intoxication. That makes sense from a legal liability standpoint. If a college kicks out a man, after a woman files a complaint, they have done their due diligence as far as the woman is concerned. That means almost no liability for the college from a risk management prospective. If the college though gives both parties a full and fair hearing and finds the man not responsible the woman can just go complain to the government which will launch, at no cost to her, a full on Title IX investigation. No wonder most colleges just routinely boot men who have simply been accused but there is no real evidence.

    Can colleges take some corrective actions when it comes to allegations of sexual assault or harassment? Sure. But those should be restricted to administrative ones such as no contact orders, moving housing, perhaps even class adjustments. Beyond that college based tribunals are not appropriate forums to met out political correct “justice”. If rape happens that is why we have law enforcement and courts.

    1. Your first paragraph is pretty false. At least as makes the news, the fact patterns vary a lot. I’m all for quite a bit more due process in these hearings, but don’t argue from narrative; argue from fact.

      1. “Your first paragraph is pretty false. At least as makes the news, the fact patterns vary a lot”

        I’m shocked that anyone would say this. From the ones that I’ve seen make the news, these cases are very similar: There are two drunk people, the woman claims that her consent didn’t count because she was drunk, and the man is expelled. In this case, like all the rest, no one asked if John was too drunk to consent.

        One problem with the TitleIX proceedings is that they are secret, so it’s difficult to draw any general conclusions about them or know how often men are expelled for sex when both parties are drunk.

        1. The level of inebriation in one or both parties varies, how explicit any initial consent was varies, how explicitly if at all consent was withdrawn varies, the amount of force used varies.

          I’ve not made a study, but if i have time this afternoon i’ll link the examples I’m tracking.

      2. I am arguing from a general factual level. And I read the facts in this particular piece. The man was obviously drinking but at no time did it appear the Title IX investigator questioned if he was too intoxicated to consent to sex. That and there are administrators who are actual on record saying that when both a man and woman are BOTH to intoxicated to consent the man is the one who should bear responsibility. That is blatant gender discrimination under Title IX and presents a constitutional equal protection issue too especially if such a practice is adopted as an institutional practice/policy.

        I can’t say I follow every public Title IX case, but I have yet to see one where a woman is held responsible for being intoxicated and forcing herself on a man who was unable to consent due to a level of intoxication. And I have only seen one where the university held both parties were unable to consent.

        Again, under Title IX, the university has absolutely no interest in providing any type of fair hearing. From a PR, legal, and risk management prospective it is just best to kick out the man. This is what happens probably 99.9% of the time and is what “consultants” teach when training Title IX investigators. Just look at ATIXA and NCHERM (scams run by the same guy Bret Sokolow) if you don’t believe me.

        1. At least at first blush, I don’t disagree from your characterization of the case at a general factual level. My pushback was at All these college cases have about the same fact patterns.

          The fact that you don’t see a lot of men having consent issues might be about Title IX, or it might be about what Title IX is trying to address…

          Under Title IX, the university’s interest is as much to ignore the incident as it is to hold a hearing, and that is how it used to be until quite recently. It is looking like universities are not equal to the task of due process here for a number of reasons, and more directive guidance would be called for.

          1. Again I was making a general statement from what information is public, guidance provided by professional Title IX organizations, and from what I see happening internally at various universities.

            The MO is to hold the man responsible regardless of his level of intoxication and little if any inquiry goes into that issue. It is extremely rare that a Title IX investigation will even ask the question (that is unless the issue was a man on man sexual encounter). And when you read the facts of these cases you can easily tell it is the job of the Title IX investigator to find evidence to support a conclusion the man was at fault and in some cases outright ignore evidence to the contrary.

            And where I would agree that the university used to have an interest in just simply ignoring these issues, there was also a good reason for that. Most cases involve parties who are extremely intoxicated, there are usually no witnesses, the only evidence is the testimony of both parties that are hazy at best, and the fact is women “regret” sexual encounters more then men and when they express a level of regret they want remedial action taken for what was most likely just a bad decision made under impairment.

            This is why the police usually pass on prosecuting these types of he said/she said cases. There is just no evidence to prove anything in a court of law (or even in some instances to establish probable cause).

            1. The reason for that asymmetric MO is asymmetry in who is having issues with consent.

              I’ll need more proof that ‘the women regretted the incident and so yelled rape’ is a common modality. That smacks of a hysterical/conniving women narrative that’s supported more by misogyny than facts. Though I could be wrong; I have not made a study.

              A much easier fact pattern is that universities covered it up because it made them look bad to have rape happening on campus.

              1. There are studies on the “fake rape” phenomena. Most are dated because frankly in this type of political environment I don’t think someone could conduct a fair and academic study on the subject.

                The best we have is a study of rape allegations in the military. There the number of unsubstantiated allegations is about 20%. That is a lot. And these numbers are probably the most accurate because as a member of the military you are required by command to take a lie detecter test. And if you fail one after making such an allegation it can be an additional charge.

                Why would women lie? I don’t know other then people lie all the time.

          2. I would also add that the nature of sexual activity can be awkward for all concerned. It involves naked bodies, the exchange of bodily fluids, a degree of aggression is necessary to engage in the act as is a degree of submission. I know many married couples, who have been so for many years, who will even polish back a glass of wine or two before engaging in sex. Why? Losing a little inhabitation just makes the entire awkwardness of it all seem like not a big deal. If you poll most people they will tell you that they usually engage in sexual activity after having some form of intoxicant.

            That is why most of these cases involve drunk/inhibited parties. And younger college students don’t necessary have as much experience with intoxicants as say a 40 year old who has been drinking for decades. Hence why these are usually merky at best from an evidentiary standpoint. But simply establishing an entire administrative system that is hell bent on just holding men accountable is not the answer. In fact, it is discriminatory under Title IX, which applies to men and women with equal force.

            Also from a societal standpoint raising a generation of men who are presumed to be rapists upon accusation, and training women to be “victims” is extremely problematic. It reinforces sexist stereotypes and is going to produce all kinds of problems as these societal “norms” work their way into every day life and the workplace.

            1. This is correct. The poor persecuted frat boy is not something I buy, but we do have a long way to go in understanding about gender sexual consent and all sorts of stuff. this kinda blew my mind to hear it. (Warning, gets a bit adult in audio content).

              But women were and are victims a lot, just check the news for the creepy weird stuff powerful men are getting up to.
              I’m kind of amused at how kind of out of control the me too movement has gotten, but am hopeful that when the pendulum comes to a stop it’s in a better place than it was.

              1. Most women tend to be attracted to powerful men. There are a lot of theories why this is but if history and societal norms back anything it is the leader of a kingdom is going to have an easier time finding a woman mate then say the poor guy who checks coats at the local banquet hall.

                Women also have what men generally desire – the gatekeeper to sexual relations. Sometimes they will use this to their advantage and “sell” it in exchange for employment, goods, services, presents, or even money. Hence all the talk about the “casting couch” and how prevalent it was in Hollywood. This is all just human nature.

                Do men sometimes have to use a degree of “force” to engage in sexual relations with a woman? Sure. Women tend not to just like to “give it up”, but there is a bright line between holding down a woman who is saying no then engaging in deceptive/suggestive behavior like in the song “Baby It’s Cold Outside”.

                1. What I was getting at (but restricted to 1500 characters) is that the issue is extremely complex on many social, psychological, biological, ethical, legal, and many other angles.

                  Simply casting women as the “victim” and the man as the “criminal” isn’t going to let us understand anything about this issue. It is frankly just white washing what is a complex modern situation.

                  Over the last 40-50 years we have destroyed institutions that used to regulate sex. Now, for better or worse, we are left with “free love” and “porn on demand”. I’m not saying we go back to societal systems of old, but just if this is our current reality we need to start to understand what it really means for both men and women.

              2. I thought we understood consent pretty well, until people started trying to redefine it. Your podcast makes all sorts of ridiculous claims. Such as, it’s improper when a woman says, “let’s make out, but I don’t want it to lead to anything else” and then the guy attempts something else after making out for a while.

                I thought this article got it right:

                “Consider this moment in the first episode of the Radiolab series, in which Prest walks home after hooking up with a former boyfriend?sex which she initially claimed not to want, but then consented to and enjoyed, a fact which leaves her angry and conflicted. Marinating in regret, she considers her decision, wondering, “Is that on me?”?only to reject the patently obvious answer: Yes, it’s on you.”

                1. If you think that was the thesis of that podcast…

          3. When the DCL came out in about 2011 you could tell by simply reading it that the purpose was to establish a dual system of justice for sexual crimes by empowering/shaming/requiring under threat of massive Title IX audits, universities to establish such a system.

            And over the year colleges and universities spent A LOT OF MONEY on lawyers, consultants, and additional administrators to make it happen. Many people got pretty darn rich off of setting up an administrative system that basically had the sole purpose of finding men guilty based upon a simple accusation. I was at one conference where a speaker was making the case the “more likely then not” standard was too lenient and that the evidentiary standard should be “substantial evidence” (essentially a half step above probable cause that is vaguely recognized in some niche areas of administrative law).

            The “single investigator” model was just the enabler for such a system. Doing away with panels and replacing them with professional administrators whose sole job it was to perform these investigations was a blatant attempt to do away with any semblance of due process. And so was doing away with appeals panels either by simply not allowing an administrative appeal or having it go to another professional Title IX administrator.

            I’m glad it is now being taken seriously as it is dangerous from a legal, ethical, and societal standpoint.

          4. “Under Title IX, the university’s interest is as much to ignore the incident as it is to hold a hearing, and that is how it used to be until quite recently.”

            If colleges wanted to ignore sexual assaults, all they would have to do is begin perusing allegations of false accusation, hold hearings for alleged false accusers under the preponderance standard, and expel false accusers.

  8. Can anyone explain why if a man and woman drink together, basically the same amount, the woman loses the ability to consent to sex, yet a man still has the ability to determine that she lost her ability to consent? Wouldn’t they both have lost the same abilities by being under the influence, so neither one be more responsible than the other? Wouldn’t they both have equally have had consensual sex without being able to give consent? Yet we see the inebriate man as completely capable of making this detremination, while the inebriated woman is completely incapable of anything?

    Also don’t we have the technical ability in this day and age to determine what is paint and what is blood?

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