We have noted in past posts that Title 9 cases with
decisions in which due process appears absent or inadequate will not be ratified by the
courts. This case goes back to 2015. Since that time, hopefully other adjudicatory
procedures have been adopted, or should have been adopted, pursuant to UC
policy. But even assuming that is so, why would the university not have settled
before it got the verdict above?
In any case, the university might consider following procedures similar to what occurs under its own union-management agreements in grievance matters. In grievance cases, after internal procedures are exhausted, the matter goes to an outside neutral (an arbitrator in the union contract situation). The neutral could be an arbitrator or perhaps a retired judge, but someone who will follow sufficient due process so that external courts will respect the opinion. There are lots of variants of this proposal that could be adopted.
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UCSB Student Accused of Sexual Assault Gets
Suspension Tossed on Appeal
"Noticeably absent was even a semblance of
due process," wrote the court. "When the accused does not receive a
fair hearing, neither does the accuser."
By Ross Todd | October 10, 2018 at 07:16 PM | The
Recorder, Law.com
A state appellate court has overturned the
suspension of a University of California, Santa Barbara student who was barred
from campus and classes for two years after a school disciplinary committee
found that he sexually assaulted another student.
The Second District Court of Appeal on Tuesday
found that the suspended student, referred to as John Doe in court papers, was
denied access to a critical report made by the Santa Barbara County Sexual
Assault Response Team about his accuser’s medical examination and was therefore
denied the opportunity to adequately cross-examine witnesses. The court also
found that the university’s review process denied Doe the opportunity to
present defense evidence, and that he wasn’t provided a fair hearing by the
two-member university committee which reviewed his case.
“Noticeably absent” in the university’s process
“was even a semblance of due process,” wrote Justice Arthur Gilbert. “When the
accused does not receive a fair hearing, neither does the accuser.”
John Doe’s attorney, Arthur Willner, partner at
Leader Berkon Colao & Silverstein, said in a phone interview Wednesday that
he hopes that the university will “expunge this all from his record” since his
client has served out the suspension while his appeal has been pending.
Discussing the Court of Appeal’s published
opinion, Willner said “there’s a lot in there that’s going to be helpful for
students down the line in similar cases.”
The accuser in the case alleges that John Doe
sexually assaulted her one night in June 2015 while she was asleep on a
mattress in the living room of his apartment. She claimed he aggressively
fondled her breasts, removed the bottom half of her clothing; and penetrated
her vagina and anus without her consent while she was incapacitated.
Doe claimed that he slept facing away from his
accuser atop sheets she was under. The mattress was just feet from two
witnesses, including his girlfriend and the accuser’s best friend at the time,
who both testified that the accuser’s version of the events was not physically
possible.
In Tuesday’s opinion, the Court of Appeal noted
that a campus detective who investigated the case and testified at Doe’s
hearing cited findings from the Santa Barbara County Sexual Assault Response
Team’s report which stated there was “bruising and laceration noted in anal
area.” Doe, however, wasn’t given access to the full report, and the detective
declined to speculate if anything other than what Jane alleged could have
caused the injuries.
Doe also wasn’t given the name of the
antidepressant medication his accuser was taking—Viibryd—until the night before
his hearing. The accuser refused to answer questions about the side effects of
the drug or its interactions with alcohol. When Doe attempted to get the
details of those side effects—which can include hallucinations, sleep paralysis
and night terrors—into evidence through testimony from his mother, the
university’s general counsel cut off the line of question. (Doe had counsel at
the hearing who was not allowed to participate.)
In Tuesday’s opinion, Gilbert noted that the
university committee had “placed John in a catch-22.”
“[H]e learned the name of the medication Jane was
taking too late to allow him to obtain an expert opinion, but the Committee
precluded John from offering evidence of the side effects of Viibryd without an
expert,” Gilbert wrote. He was joined in his opinion by Justices Kenneth Yegan and Steven Perren.
A university spokeswoman didn’t respond to an
email seeking comment Wednesday.
Willner, Doe’s lawyer, pointed out that his
client has sued the individual campus officials involved in his case in federal
court for deprivation of civil rights. That case has been stayed pending the
outcome of the state court appeal and is now poised to move forward, Willner
said.
Said Willner: “What was so egregious about this
was the due process violations were so significant and so extensive that, in my
view, the hearing committee handled it in a way that was designed to reach the
result that they did.”
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