Due process win: California judge rules campus kangaroo court 'unfair'
By Ashe Schow • 7/13/15 5:03 PM
A California judge just issued a win to proponents of due process in campus sexual assault hearings.
Judge Joel M. Pressman deemed a University of California-San Diego campus hearing "unfair," ruling that the hearing panel limited the accused student's right to due process.
The accused student, listed as John Doe, had sued the university after being suspended for sexual assault without due process. John claimed that his right to cross-examine his accuser and adverse witnesses was limited, and Pressman agreed.
John was only allowed to submit questions to the hearing panel to be asked of his accuser, named in the lawsuit as Jane Roe. Of the 32 questions submitted by John, only nine were asked, and only after the questions were reviewed by the hearing chair.
"The Court determines that it is unfair to Petitioner that his questions were reviewed by the Panel Chair for her alone to determine whether or not the question would be asked and then answered by the witness," Pressman wrote. "While the Court understands the need to prevent additional trauma to potential victims of sexual abuse, this can be achieved in a less restrictive manner. The limiting of the questions in this case curtailed the right of confrontration [sic] crucial to any definition of a fair hearing."
Pressman noted that seven questions not asked by the panel chair dealt with text messages between John and Jane. The panel chair also paraphrased a question regarding John and Jane's relationship after the alleged sexual assault and allowed Jane to claim that their post-encounter relationship was not relevant. Further, Jane's questions were not given the same prior review as John's.
Pressman also decried the school disallowing John to cross-examine and question the only "evidence" at his hearing beside the accuser's story. Submitted to the hearing panel was an investigative report conducted by Elena Acevedo Dalcourt, the school's complaint resolution officer. But Dalcourt did not attend the hearing, which prevented John from questioning her account of the incident.
"[T]he Panel relied on evidence that was outside the hearing. Ms. Dalcourt did not testify. While the technical rule of hearsay is not applicable to the hearing, the hearing did not allow petitioner any opportunity to refute Ms. Dalcourt's findings," Pressman wrote. "Ms. Dalcourt's conclusions were crucial to the findings, but petitioner was denied his right of confrontation."
John was also not provided all of the evidence against him that was found in Dalcourt's report. He was not given the names of the witnesses interviewed by Dalcourt or all of Jane's statements prior to the hearing.
Pressman reminded the university that "it was the panel's responsibility to determine whether it was more likely than not that petitioner violated the policy and not defer to an investigator who was not even present to testify at the hearing." (Emphasis original.)
In a real court, defendants are allowed to exercise their Fifth Amendment right to avoid self-incrimination. In campus courts, students who don't give statements to investigating administrators often have their silence used against them, as was the case with John Doe.
"While John stated during the hearing that he did not digitally penetrate Jane's vagina, he abstained from providing additional information regarding the incident and what occurred around the time of the incident and the panel would have liked to hear more information from him," the hearing panel wrote in its findings.
Pressman goes on to detail the lack of evidence to support the university's finding of guilt. Specifically, he explained that Jane "did not object to sexual contact per se, and only explained that it was not pleasurable for her at that time." Jane also admitted during the hearing that she voluntarily consented to John later in the day of the alleged incident.
"When viewed as part of the entire narrative, the sequence of events do not demonstrate non-consensual behavior," Pressman wrote. "What the evidence does show is Ms. Roe's personal regret for engaging in sexual activity beyond her boundaries."
Pressman quoted from the hearing panel's finding: "Jane stated that she physically wanted to have sex with [the accused] but mentally wouldn't." This reservation, Pressman wrote, should not be seen as John's fault, "particularly if she is indicating physically she wants to have sex."
Beyond the unfairness of John's hearing, Pressman lambasted the university for continuously increasing John's punishment without any explanation. Upon the finding of responsibility, John was first sanctioned to a one-month suspension and required to attend sexual harassment training and counseling. He was also told never to contact Jane again, "due to the potential for ongoing harm to the complaining witness."
After John appealed the ruling, his sanctions were increased to a one-year suspension (meaning he would have to reapply to the university), put on non-academic probation and required to attend ethics workshops – on top of the original sanctions.
When John appealed that decision, his sanctions were increased yet again to a one-year-and-one-quarter-suspension. None of the additional sanctions were given any explanation.
In another recent court ruling on campus sexual assault, a judge found that since the school followed it's own policies, it was not guilty of violating a student's due process rights. Judge Pressman argues differently – that since the policy was unfair, so was the finding.
John Doe's attorney, Mark Hathaway, released a statement following the judge's ruling late last week.
"It's encouraging to see courts recognizing that sexual misconduct complaints on campus cannot be resolved at the expense of Constitutional rights and fundamental fairness," Hathaway wrote. "Colleges and universities must treat all student's fairly, regardless of gender. All too often the male student is just presumed responsible and given no access to any campus resources. Hopefully Judge Pressman's ruling today will help correct the imbalance."
Advocates for due process had been issued a couple adverse decisions earlier this year when it came to campus sexual assault. And although John Doe received some justice in this case, there are dozens more accused students waiting for court rulings – and even more than that who don't have the resources to hire an attorney and fight their schools.
Judge Pressman's ruling should serve as an example to schools and the federal government as they continue to push Kafkaesque campus hearings that deny due process and promote a guilty-until-proven-innocent standard.
http://www.washingtonexaminer.com/due-process-win-california-judge-rules-campus-kangaroo-court-unfair/article/2568180
