(Photo illustration by Nick Kirkpatrick/The Washington Post. Sources: AP, Courtesy of Matthew Haberkorn)

A California trial court judge in San Diego has determined that a college student found responsible for sexual misconduct by a university disciplinary board was not given a fair hearing by the school. The student, who faced a year’s suspension, was not given an adequate chance to challenge the findings of a university investigator or to cross-examine his accuser.

While the decision may or may not have wider legal application, it comes amid a wide debate about the procedures used by universities to adjudicate complaints of sexual assault, which generally give the accused much less leeway to defend themselves than is required by the courts.

John Doe and Jane Roe — students of the University of California at San Diego referred to in court documents by these pseudonyms — had a number of sexual encounters in early 2014 when they were both undergraduates. Some were consensual; some allegedly were not. In June, Roe complained about Doe to the university, alleging assault as well as retaliation. Doe was found responsible by the university for digitally penetrating Roe the day after they had allegedly had sex for the first time.

The investigator believed Roe.

“I find Ms. Roe credible in her assertion that she objected to physical activity during the morning in a clear and unambiguous manner, and that Mr. Doe repeatedly ignored these objections, despite Ms. Roe telling him that his touching was painful,” a university investigator wrote in a report. “I find Ms. Roe did not intend to engage in any sexual activity during the morning, and that Mr. Doe ignored Ms. Roe’s wishes that he refrain from touching her.”

The investigator added: “In interviews, I found Ms. Roe to have been genuinely traumatized by the events in connection with Mr. Doe. I find that Ms. Roe exhibited signs of a trauma victim … I find that her actions, though at times counter-intuitive, are consistent with young college students in the first months away from parents and restrictive environments, and consistent with the actions of trauma victims who attempt to cope with trauma by normalizing what has occurred.”

After a hearing, Doe was initially suspended for one quarter; after an appeal, he was suspended for one year, which would have required Doe to reapply to the university. But a state court judge in San Diego found UCSD’s disciplinary process wanting.

“While the Court respects the university’s determination to address sexual abuse and violence on its campus,” Judge Joel M. Pressman wrote in a July 10 ruling, “… the Court finds that in this particularly [sic] case, the hearing against petitioner was unfair.”

The judge thought it unfair that Doe’s right to challenge the investigator’s report and cross-examine Roe as a witness was limited. Roe was “placed behind a barrier during the proceedings.” Doe’s questions were reviewed by the chair of the disciplinary panel and “only nine of [Doe’s] thirty-two questions were actually asked.”

“Here, cross-examination was essential,” the judge wrote. “The Student Conduct Review Report made findings regarding the credibility of Ms. Roe and the outcome turned on her testimony.”

The judge also said the record reflected “ambivalence on the part of Ms. Roe” — a Mormon, according to the investigator’s report — toward having sex.

“Ms. Roe admitted that she voluntarily continued consensual sexual activity with Mr. Doe later that very same day,” Pressman wrote. “The Court is not weighing Ms. Roe’s credibility. But the incident on the morning of February 1, cannot be viewed in a vacuum. … The sequence of events do not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe’s personal regret for engaging in sexual activity beyond her boundaries.”

Pressman added: “Ms. Roe’s own mental reservations alone cannot be imputed to [Doe], particularly if she is indicated physically she wants to have sex.”

The judge also singled out a university administrator — Sherry Mallory, dean of student affairs — for increasing Doe’s penalty after his appeal.

“Nowhere in Dean Mallory’s email to [Doe] does she indicate the reasoning behind the increased sanctions,” Pressman wrote. “… It appears the increased sanctions are punitive towards [Doe] for appealing the decision of the panel.”

In an interview with The Washington Post, counsel for Doe criticized the university’s handling of the investigation into the alleged assault.

“It appears bungled from the beginning,” Matthew Haberkorn said.

Haberkorn said that students — some as young as 17 or 18 — “pulled into” proceedings before university judicial boards may not be aware of their rights and “are at an unfair advantage.” He suggested students accused of sexual assault at schools should immediately retain counsel — and that universities should not be in the business of investigating sexual assault claims.

“It shouldn’t be done,” Haberkorn said. “Absolutely not. And if they’re going to do it, need to bring in trained police to handle the investigations and interviews and need to get prosecutors to represent the university instead of using students and staff.”

Haberkorn, like Judge Pressman, also criticized Dean Mallory. Haberkorn focused on the dean’s work with NASPA, an organization for student affairs administrators that sent out a letter earlier this year discouraging the mandatory referral of sexual assault cases at universities to law enforcement.


Screenshot of tweet from Sherry Mallory. (Courtesy of Matthew Haberkorn)

“Bills creating rights only for accused students and not student victims will enable outside interference at an unprecedented level into internal … administrative proceedings and do so in a manner that is against best practices and likely to quickly overwhelm state courts,” the letter read.

“Dean Mallory should have been out of case entirely because of NASPA,” Haberkorn said. “… She needs to be recused from any case of student in college. She’s the dean of one of six schools at UCSD. Bring in one of the other deans — you’ve got five others available.”

Mallory and representatives of UCSD were not immediately available for comment. Doe, who has not missed any school as his sentence was being appealed, will continue at the university as a senior in the fall, Haberkorn said.

The UCSD decision comes as universities across the country debate their sexual assault policies in the wake of a much publicized Rolling Stone story last year about a rape at the University of Virginia that turned out to be fabricated.

[U-Va. fraternity announces lawsuit against Rolling Stone]

In an essay — “The College Rape Overcorrection,” which appeared in Slate — Emily Yoffe wrote that, in a well-intentioned attempt to adjudicate and eliminate sexual assault, universities and colleges have gone astray.

“Unfortunately, under the worthy mandate of protecting victims of sexual assault, procedures are being put in place at colleges that presume the guilt of the accused,” Yoffe wrote. “Colleges, encouraged by federal officials, are instituting solutions to sexual violence against women that abrogate the civil rights of men.”

The UCSD decision could have limited effect outside Doe’s individual case because it involves a public university in California subject to certain requirement under state law and because it is the ruling of only a single trial court judge in the state.