Ultimately, the claim against a male student, imaginatively called “John Doe” in the proceedings, came down to whether he “digitally penetrated” Jane Roe’s (not necessarily her real name) vagina. John said no, so he lost at the University of California, San Diego disciplinary hearing. Then he sued.
“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.
Can a guy remain silent? Sure. But unlike real court, the Fifth Amendment doesn’t apply to civil and administrative hearings as it would in criminal prosecutions. Silence can be used against you. But what was John Doe confronting when he made the decision to say no more?
“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.”
[Judge Joel] 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.”
This is a critical starting point, as it’s one that is almost invariably denied and decried. “Sexual assault isn’t about post-hoc regret,” the argument goes, but it was here. For those who contend that any formulation of consent will somehow prove foolproof, consider that the female student here, as found by the college hearing panel, “stated that she physically wanted to have sex . . . but mentally wouldn’t.” What does that mean?
The judge took it to mean that Roe physically indicated a desire to have sex, but Doe was to be held accountable for Roe’s secret mental state, as she determined afterward as her regret sank in, and complained about four months later? Well yes, that’s exactly what it means to the college disciplinary panel.
Despite this finding, and Doe’s denial, the hearing panel concluded that John Doe was guilty and suspended him. Notwithstanding the nature of the claim against him, post-hoc regret, Doe never stood a chance.
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.
Lest the larger point be subsumed in the smaller one, submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether Doe is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up. But Doe didn’t even get that far.
“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.”
And it is, indeed, the backward assumption that a “survivor” might suffer additional trauma by being forced to confront her sexual abuser that justifies not only the denial of the right of confrontation where an accused gets to face his accuser, or gets to follow up her answers with appropriate questions, but gets to ask questions at all. At least questions beyond those approved for delicacy.
But as it turns out, Jane Roe wasn’t really the source of accusations against Doe. In fact, it was the college’s complaint resolution officer, Elena Acevedo Dalcourt, who conducted the investigation and made the findings, which the panel dutifully rubber stamped. And she wasn’t subject to questioning either.
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.”
And given Dalcourt’s report, and the absence of any hearing with the potential to actually reach its own findings, the outcome was a slam dunk.
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.)
Notably, all the panel had to achieve was a finding by a preponderance of the evidence that a sexual assault occurred, and its process wasn’t sufficient to do so. And to add absurdity to injury, the punishment imposed took a swan dive off the cliff of reason as Doe had the temerity not to accept it like a compliant young man.
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.
UC San Diego is considering whether to appeal Judge Pressman’s decision, where they lost in a crushing defeat after being provided all due process the legal system can offer. Hopefully, they were taking notes, as this will be on the test.