The latest of the due process lawsuits—at USC—reveals how the “affirmative consent” standard works in practice. There were a host of other dubious events in this case; a California state judge stepped in last week to prevent USC from expelling the accused student. You can read the student’s filing here.
The basics: in the fall 2015 semester, two students had a rocky relationship. On the night of October 14, they tried to have intercourse; the accuser said that the event was causing her pain; the specifics remain unclear. But they continued to see each other (and had some form of sexual contact) for more than a month. They eventually broke up when the accused student made clear he wanted to be able to see other women (while still sleeping with the accuser) and the eventual accuser wanted an exclusive relationship.
Neither of these students come across from the file as appealing characters. The male student seems selfish; the female student seems manipulative. In a different environment, they would have gone their separate ways, and chalked up their relationship to a bad college experience.
Instead, throughout the fall, hundreds of text messages flew back and forth between the two, including items that discussed the October 14 event. The accuser started suggesting that the October incident was “rape,” with the male student like Bill Cosby, while saying at the same time she wanted to get back together. (The accused student vehemently denied it, even as he profusely apologized for the uncomfortable events of the night in terms that made clear his behavior was morally dubious.) In January, after the accused student made clear he had no interest, the accuser stepped up the pressure—she told him she’d file a sexual assault charge with USC unless he moved out of his fraternity. “In a twisted way,” she texted him, “[I] want to gain happiness from knowing you’re not doing okay. And I’m frustrated that you’re doing way better than I am when I deserve happiness more than you.” The accused student bowed to the pressure and moved out his fraternity—after which the accuser filed a complaint against him anyway.
USC uses a modified version of the single investigator model. The investigator interviews the witnesses; the accused student has no right to a hearing or to cross-examine his accuser, even indirectly. The investigator then prepares a report, indicating his belief on whether the accused student is guilty, for a body called the Student Equity Review Panel. They pass final judgment and issue a sanction, but the only evidence they see is the report prepared by the investigator. Under USC procedures, the accused student has no opportunity to appear before the Student Equity Review Panel—or even to know the identities of its members.
The USC investigator was Patrick Noonan, a labor lawyer who works in the university’s “Office of Equity and Diversity.” Noonan appears to have no training as a private investigator or in law enforcement. (He had, however, previously served as USC’s interim affirmative action coordinator.) The accuser told the labor lawyer that she had been the victim of a violent rape, with the male student forcibly holding her down 10-15 times as she said no. She said that after they failed to complete the intercourse, the male student kicked her out of the room, crying—and as she left the room, she encountered her attacker’s roommate in the hall. She added that the male student had confessed to the assault in a phone call. She also provided what she deemed the only “relevant” text messages between the two, in which (on several occasions) the male student apologized for the events of the evening but denied a claim of sexual assault.
Noonan interviewed both students and nineteen witnesses—her sorority sisters and some friends—recommended by the accuser. Each reported that the accuser had told them (or that someone had told them that the accuser had told them) that she was raped. (Precisely what any of these witnesses actually said remains unclear, because Noonan doesn’t record witness statements, and his full notes weren’t provided to the accused student.) Noonan elected not to interview the only witness with first-hand knowledge about part of the accuser’s allegations, the accused student’s roommate, who the accuser said saw her racing out of the room in tears. In contrast to the accuser’s approach, the accused student turned over his entire cache of texts with the accuser. According to the investigator’s report, he asked the accused student what he had done to obtain affirmative consent—seemingly recognizing that under California law, the burden of proof was on the accused to show he had obtained affirmative consent throughout the evening.
Noonan was impressed that the accuser had told many people her story. (You can read his report here.) Since he deemed the accuser more credible, he credited her claims that the accused student had confessed to her. He interpreted the accused student’s apologies as a de facto confession, even though the accused student said he was apologizing for the night not going well as part of a longer-term relationship where the two parties often argued and then made up.
Noonan also uncovered what he considered to be a smoking gun: the accused student’s “misrepresentation and manipulation of the information provided to the Investigator,” which “severely diminishes his credibility.” [emphasis added] What was that manipulation? The Excel file produced by the accused student, Noonan asserted, had changed the order of the text messages, pushing a handful of messages (including two of his apology texts) out of order, to the bottom of the Excel spreadsheet, seemingly to deceive the Investigator. Noonan reiterated the point: The accused student’s “manipulation and misrepresentation of these texts erodes the credibility of his narrative of the event.” [emphasis added] Open and shut: With one party credible and the other with eroded credibility, Noonan found the accused student guilty. The Student Equity Review Panel upheld his finding and recommended expulsion.
Incredibly, Noonan had concluded that the accused student manipulated critical evidence without ever asking him about the issue. It turns out that Noonan’s guess—an interpretation that “severely diminishes” and “erodes” the student’s credibility—was wrong. The student had used an app to download his messages and transfer them into an Excel file; the app automatically placed messages larger than a certain size at the end of the spreadsheet. The student himself had done nothing to alter the messages in any way.
The accused student, who had hired attorney Mark Hathaway, appealed. To discuss procedures for the appeal, he and Hathaway requested a conference call with USC Title IX coordinator Gretchen Means and Investigator Noonan. They asked for the identity of the panel members who approved Noonan’s expulsion recommendation—but Means refused to provide them. When the call ended, Hathaway and the student stayed on the line, to confer with another lawyer from Hathaway’s office. For whatever reason, Means and Noonan didn’t disconnect, and instead unleashed a spew of epithets about those “motherfuckers.” “Does that college motherfucker know who I am?,” Means asked Noonan. The USC duo also described the accuser as “cute and intelligent” and wondered what she was doing with “that” (an apparent reference to the accused student). Means subsequently penned a letter suggesting that Hathaway might have committed a criminal act for continuing to listen in to a conference call of which he was an invited member, and not informing her that she had forgotten to hang up on the conference call.
The accused student appealed on multiple grounds. USC rejected each, sometimes comically so. The accused student:
- suggested that the investigator and Title IX coordinator were biased against him, on grounds they had called him a “motherfucker.” The appeals panel replied that these remarks didn’t account for bias in the adjudication, without explaining why. In a subsequent filing, USC argued Means only supervised the panel that technically made the decision, while Noonan only provided the Student Equity Review Panel with all its evidence. Because neither of them actually voted, their biases were irrelevant.
- noted that Noonan’s incorrect claim that he had manipulated the text messages led the investigator to improperly question his credibility. The appeals panel admitted that Noonan could have asked the student about how he downloaded the text messages before accusing him of manipulation, but bizarrely suggested that Noonan “otherwise clearly articulated the issue of credibility” in his report. The panel neglected to explain how Noonan’s judgment about the accused student’s credibility could be trusted given his harshest attacks on the student’s credibility had been proven unfounded.
- claimed that the practical effect of USC’s handling of his case was to impose on him a presumption of guilt, and require him to produce evidence that would prove his innocence. The appeals panel essentially agreed, but implied that the university could take such an approach, and correctly noted that the student’s (unmanipulated) text messages failed to prove he obtained affirmative consent.
A state court judge issued a stay, preventing USC from expelling the student. On this record, it’s not hard to see why.