Law Review: UC Davis student suspension for non-consensual sex upheld
UC Davis, my alumni, like other UC campuses has procedures for investigating and adjudicating claims that a student engaged in non-consensual sexual intercourse, which of course is in violation of UC policies.
A NIGHT OF HEAVY DRINKING
In December 2017, UC Davis student “Jane” and “John” and other tenants of the same residence hall, had an evening of serious drinking. Jane “drank a good deal of alcohol,” later described as 8-9 shots, and ended up vomiting and falling asleep in the gender-neutral bathroom at the dorm. John went to the bathroom and ultimately helped her back to her room. John told witnesses he was going to do his homework in her room and stay to make sure she was OK. John, and acquaintance of Jane’s, told one of the witnesses he got in bed with Jane to help her stay warm as she was shivering. He told the witness he took off his pants which were wet from the rain that day. (The investigator later determined it did not rain that day in Davis.) John told the investigator Jane consented to the sex.
In this “he-said she-said” case, both parties described similar facts regarding the degree of Jane’s drunkenness. Whether Jane was able to consent was in dispute and central to the outcome. Indeed, John and Jane had sex. Jane shortly afterwards reported to the Title IX Office that John had engaged in non-consensual sexual intercourse with her.
INVESTIGATION, REPORT AND APPEAL
An investigation was conducted including interviews of multiple witnesses and both parties. A report found John’s actions were in violation of campus policies.
John appealed the initial decision; and the Appeal Officer upheld the original decision. The Associate Vice Chancellor of Student Affairs denied John’s second-level appeal. John then filed a lawsuit challenging the decision that he be banned from UC campuses for two years.
PROCEDURAL FAIR PROCESS CHALLENGED
The “Allee” court decision set the standard for due process when a student is accused of sexual misconduct. If the student faces severe disciplinary sanctions, and the credibility of witnesses is essential in the case, then fundamental fairness requires that the accused may cross-examine witnesses before a neutral adjudicator who may not be the investigator and fact finder. John had not been given an opportunity to cross-examine Jane and the witnesses.
The court determined that based on John’s own statement of the facts, Jane was incapacitated due to alcohol at the time and that a reasonable person in John’s position should have known that.
Because John’s own statement to the investigator established that Jane was unable to consent due to alcohol, the credibility of witnesses was not central to the adjudication, so the right to cross-examine witnesses was not required.
Disciplinary proceedings and suspension from all UC campuses for two years upheld.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com
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