Arizona Court Reverses Expulsion of ASU Student for Threesome with Allegedly Too-Drunk Classmate

"Other statements by Complainant ... along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated."

An excerpt from Tuesday's Arizona Court of Appeals opinion, written by Judge Diane M. Johnsen and joined by Judges Kenton D. Jones and James B. Morse Jr:

[T]he issue of incapacitation is not whether, in hindsight, the person made a smart decision. Instead, it is whether the person had the cognitive ability at the time to make the decision for herself or himself. Put differently, a "rational judgment" in this context is not one that an observer would deem a "good judgment" but instead is one made by a person who is able to comprehend the nature and consequences of the matter….

In sum, the undisputed evidence of what happened in the bedroom is that Complainant was not too intoxicated to actively participate in at least 20 minutes of strenuous sex. The same evidence also disproves her contention that she was too intoxicated to decline to participate in the sex at the outset.

Nor does the evidence support Rund's conclusion that Complainant lacked the capacity to say no. At the hearing, Complainant testified she was not able to say the words, "I don't want to have sex." To the contrary, the evidence is undisputed that at some point during the sexual encounter, she did tell Respondent and Participant to stop—and they did. Complainant also noticed that Participant was taking pictures with his cellphone and told him to stop doing so. Further, Complainant testified she was "more drunk going out of the room than [she] was going in." The only reasonable conclusion to be drawn from that admission is that if she was able to say she wanted to stop after some 20-25 minutes of sex, even though she was "more drunk" at the end than when the sex began, she had the capacity to say no in the beginning….

At oral argument, ASU argued evidence that Complainant may have made rational, informed judgments at the end of the encounter does not undermine the conclusion that, at a minimum, she was incapacitated at the outset. But the record belies any contention Complainant was incapacitated when the sex began. First, Complainant herself told police she was "coherent" at the time she entered the bedroom. In addition, as noted, after the fact she was quite capable of reporting specific details about the beginning of the encounter ….

[ASU Senior Vice President for Educational Outreach and Student Services, James] Rund found it compelling that, by Complainant's account, she had rejected an earlier attempt by Respondent to have sex with her that evening. As Rund put it, "I do not find it plausible that the Complainant would tell the Respondent she did not want to sleep with him and then subsequently and with no explanation agree to participate in intercourse with not just Respondent, but also with [Participant]. The only variable in circumstances was Complainant's consumption of seven shots of [v]odka."

Nothing in the evidence, however, shows that the vodka rendered Complainant incapable of deciding to change her mind. As Complainant acknowledged, when she and respondent first spent time together a couple of days before the gathering, she initially declared to him that they would not have sex, but then—free of any influence of alcohol—she willingly engaged in oral sex with him. [Footnote: … If she exercised her independent judgment to change her mind and engage in sexual conduct on the earlier occasion, it can hardly be said to be "[im]plausible" that she could not exercise her independent judgment to change her mind on the later occasion.]

Finally, Rund characterized the three-way encounter in the bedroom on the night in question as "outrageous behavior," and from that concluded Complainant would have participated only if she was incapacitated. But [Kendra] Hunter, the witness ASU called to testify about its investigation, testified that a reasonable person exercising free will could decide to participate in a "threesome."

In sum, a handful of statements by Complainant are the only evidence in the record supporting the conclusion that she was so drunk that she was incapacitated on the night in question. But other statements by Complainant—statements she made to police and under oath at the hearing—along with undisputed other evidence, entirely disprove her bare assertions that she was incapacitated.

On appeal, Respondent vigorously contests Rund's findings, pointing to his own testimony and that of other witnesses who saw Complainant that night. We reach our conclusion without weighing the testimony of other witnesses against that of Complainant.

The accused student had also sued ASU in federal district court, arguing that the investigation discriminated against him because of his sex, in violation of Title IX; that case is pending, but there is a tentative decision from that court that would allow this claim to go forward. Among other things, the court reasons,

As an initial matter, the FAC [First Amended Complaint]—like many of the complaints in other recent Title IX cases brought by male university students who contend they were subjected to gender-biased disciplinary proceedings—contains an extensive discussion of the "Dear Colleague" letter that was issued by OCR in 2011. Most courts have concluded this letter does not, standing alone, create a plausible basis for alleging that a university disciplinary process was infected with gender bias. For example, in Purdue University, the Seventh Circuit stated that although "[o]ther circuits have treated the Dear Colleague letter as relevant in evaluating the plausibility of a Title IX claim … the letter, standing alone, is obviously not enough to get [a Title IX plaintiff] over the plausibility line." Similarly, in Doe v. Baum, the Sixth Circuit concluded that "all of this external pressure alone is not enough to state a claim that the university acted with bias in this particular case. Rather, it provides a backdrop that," if combined with other evidence, may "give[] rise to a plausible claim." The Court agrees with these decisions and concludes that the letter does not, on its own, get Doe over the plausibility line.

Nevertheless, the FAC contains other allegations that provide additional support for Doe's claim. First, the FAC alleges that, following the issuance of the letter, OCR specifically identified ASU as one of the universities whose Title IX processes were under investigation and sent investigators to the ASU campus to "gather information" about those processes. Although such school-specific allegations aren't alone sufficient in the Ninth Circuit to render a Title IX claim plausible, courts have suggested they may render a Title IX claim more plausible than a claim premised solely on the "Dear Colleague" letter. Doe v. Cummins (6th Cir. 2016) ("Nor do appellants allege that UC [University of Cincinnati] … was being investigated by the federal government for potential Title IX violations. Instead, appellants allege more generally that the Department of Education's 'Dear Colleague Letter' induced UC to discriminate against males in sexual-assault investigations in order to preserve federal funding. This conclusory allegation, without more, is insufficient to create a plausible claim of gender bias under Title IX.").

Second, … the FAC alleges that an ASU representative specifically referred to Doe's male gender when explaining why prompt action was needed: "When this case first came to the attention of ASU, [Hunter] indicated that action had to be taken quickly because [Doe] was a male athlete—a collegiate wrestler." (But see supra footnote 1 [noting that paragraph 144 of the FAC contains a different characterization of this statement].) …

Doe also contends paragraph 195 of the FAC identifies another instance where an ASU official made statements that reflect gender bias—this time, implicit bias. Paragraph 195 alleges that Rund based his finding that Roe was "incapacitated" during the sexual encounter in part on the nature of the encounter (a "threesome"), which Rund characterized as "outrageous behavior" that could not be the product of a rational,
informed decision by an adult. This characterization, according to the FAC, reflects implicit gender bias and antiquated "sexual mores" because Rund "did not characterize the men's decision to engage in three-way sex as 'outrageous.'" …

Third, and most important, the FAC alleges an array of irregularities during the disciplinary proceedings, including (1) the lead investigator promised Roe she would attempt to bring charges against Doe at the very outset of the investigation, before even interviewing Doe or obtaining corroborating information, (2) the lead investigator made conflicting statements to Doe and Roe about the investigator's role, (3) the lead investigator falsely told Doe that one of Roe's written submissions did not contain any new evidence, (4) the Committee violated its own procedural rules by issuing the expulsion letter without considering Doe's response to the new evidence discussed in Roe's final written submission, (5) ASU representatives failed during various stages of the proceedings to take steps to obtain key evidence, (6) the UHB refused to consider Doe's proffer of the testimony his alcohol expert would have provided, and (7) the UHB sustained the sexual misconduct finding under an "impermissible force" theory, but this theory wasn't properly disclosed to Doe before the hearing and conflicted with Roe's statements to the police and with the uncontradicted testimony of Doe's expert.

Thanks to reader James D. Smith for the pointer.