On July 29, 2105, at the tail end of a Senate HELP Committee video (2:35 here; unfortunately, CSPAN had stopped screening at this point, so the video cannot be clipped), Senator Lamar Alexander asked a seemingly innocuous question. What, the Tennessee senator wondered, could schools do to protect the “due process” rights of the accuser and the accused? The panel, which included accusers’ rights activist Dana Bolger and of UC chancellor Janet Napolitano, didn’t respond for several seconds. Then Napolitano noted that this was a “difficult” issue. She did know that students accused of sexual assault on campus shouldn’t have the same right to confront their accuser as students accused in the criminal justice process, and added that UC was “now” looking into this issue.
Napolitano, it seems, hasn’t looked too hard. Recent filings in a UC appeal of one of the most powerful opinions in favor of campus due process, by Judge Joel Pressman regarding a case at UC-San Diego, suggest that for accused students in the Cal system, their leadership believes that, in effect, they have no due process rights.
To refresh on the case: two students had either two or three instances of sexual contact over a two-day period. Both agreed that the third instance, when they had sexual intercourse, was consensual. The accuser claimed that the previous night, their intercourse was non-consensual because she was an inexperienced drinker, and was too intoxicated to consent. The following morning, she alternatively said that the male student tried to digitally penetrate her, or did digitally penetrate her, without her consent. The male student said no morning sexual contact of any kind occurred. Several months later, after encountering the male student dating one of her sorority sisters at a party, the accuser filed her claims with UCSD; she never went to the police.
UCSD’s investigator spoke to 14 witnesses plus the accuser, and rejected the rape claim. But the investigator said she found the accuser credible on the day-after sexual assault claim, and penned a report indicating that she believed the accuser’s claim that the male student digitally penetrated her without consent (although the accuser then voluntarily slept with him that night). A hearing occurred. The accused student’s lawyer could attend but not speak, even as a university administrator, who served as de facto prosecutor, falsely claimed that the student had other sexual misconduct issues and had conceded that some sort of sex occurred on the morning in question. The student couldn’t directly cross-examine the accuser, and 23 of the 32 questions he submitted to the panel were left unasked. Many of these questions dealt with contemporaneous text messages from the accuser that contradicted her later version of events.
The panel found the accused student guilty, though by crediting what the accuser told the investigator (that she had been digitally penetrated without consent) and not what she told them (that the accused student had tried to do so, but she had said no, and he stopped). The university then kept boosting the student’s punishment when he appealed. The briefs on both sides have been filled (here’s the university’s; here’s the accused student’s); the two main areas of disagreement are as follows:
What Constitutes a Fair Process?
The three big procedural issues were:
Access to exculpatory evidence. The university denied to the accused student the investigator’s notes of witness interviews, and two of the accuser’s statements to the investigator.
Cross-examination. University rules, coupled with the panel chair’s refusal to ask most of the questions the accused student submitted, effectively denied any right to cross-examination.
The investigator’s role. The investigator didn’t testify at the hearing, so the accused student had no right to ask her any questions (if the panel had allowed him to do so). Yet the panel ultimately relied on what the accuser told the investigator.
To the university, these procedures were fair. The accused student “received the process he was due,” because the school informed him of the charges against him, and gave him a hearing to present his side of the story. A process in which his lawyer couldn’t speak, in which most of the questions he wanted asked were left on the table, and in which he couldn’t see the exculpatory evidence the university investigator possessed was one in which he “had ample opportunity to present his defenses.” (For good measure, the university cited to the Dear Colleague letter on the dangers of allowing meaningful cross-examination to justify its policies.) Finally, citing a case involving a 16-year-old Ohio high school student, the university maintained that “cross-examination of a school official who investigated the alleged misconduct is not required in student disciplinary proceedings.” Ironically, that same case concluded that the student “was deprived of due process by the panel’s consideration of evidence of which he was not apprised.”
Perhaps the most remarkable element of the university’s brief came in its claim that “none of the 14 witnesses referenced in the OPHD Report were relevant to the digital penetration on February 1, for which Jane Roe and Doe were the only witnesses.” It’s true that these witnesses were asked about the rape allegation of the previous night. But this was a case in which—as the university concedes—the accuser was the only witness claiming the accused student did anything wrong. If these witnesses impeached her credibility about the events of January 31 (as they apparently did, since the university didn’t move forward with charges), it’s very hard to see how this credibility-damaging material wouldn’t be relevant to the accused student’s need to undermine the accuser’s overall credibility.
The student’s brief also brings to light information that had been redacted in the previous filing. One of the key issues in the case centered on the drinking habits of the accuser, a Mormon. In the version she initially presented to UCSD, she claimed that she had only consumed alcohol a couple of times before the night she alleged she was raped. Yet contemporaneous text messages had her discussing an older student who purchased her alcohol (she was underage), which hardly seemed like the behavior of someone who rarely drank. It turns out that before making her rape claim, the accuser was arrested for underage drinking; her parents also found out about her sexual relationship with the student she’d accused. Accordingly, they ordered her to come home on weekends. How this behavior could be reconciled with the accuser’s having told the investigator she was raped because she almost never drank and therefore was new to intoxication doesn’t seem to have concerned UCSD.
To Judge Pressman, the course of the accused student’s appeal represented one of the most troubling aspects of the case. He twice appealed—first to UCSD dean Sherry Mallory, and then to a council of provosts. Each time, his appeal not only was denied, but his punishment was increased (first to a year, then to a year plus a semester)—without explanation.
To UCSD, this path proved that the process worked as intended. The original punishment, the university’s filing implies, was too low, and the provosts’ alterations merely recognized the seriousness of the offense. Indeed, the appeals should be seen as shielding the UCSD from being overturned by a court, since the appeals process shows that six additional people looked at the accuser’s charges and found them “reasonable.” Under California law, the university maintains, as long as a school’s decision is reasonable, the university wins.
The student’s response doesn’t much deal with the latter—very odd—point, in part because it’s transparently absurd. The university hasn’t provided any information that the council of provosts looked at even one piece of evidence about the case, so it’s hard to argue they concluded the judgment was “reasonable” based on the evidence. Mallory did discuss evidence, but in a way that undermined, rather than bolstered, any confidence in the university’s fairness. One of the issues in the case was the disparity in what the accuser told the panel (the accused student tried to digitally penetrate her, but she had asked him to stop, and he did so) and what she allegedly told the UCSD investigator (penetration occurred). Mallory’s response? “Students often expand on the statements included in their initial complaints during follow-up conversations . . .; I expect that is what happened in this instance.” So the appeals officer reached her decision by, essentially, guessing? In any case, the guess made no sense—the accuser’s (narrower) story to the panel came after, not before, her interview with the investigator.
As to the former point, the student notes that the increased punishment did not simply extend the length of the suspension—under university rules, it changed the punishment from a suspension to a de facto expulsion, since USCD requires students suspended for more than two semesters to re-apply for admission. In the current campus environment, the chances that UCSD would re-admit a student found guilty of sexual misconduct are zero.
In general, California state courts have proven unusually receptive to due process claims by accused students; we’ll see if the pattern holds here.