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What universities can learn from UC San Diego sex assault case

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On July 10, 2015, San Diego Superior Court Judge Joel M. Pressman ordered UC San Diego to set aside its panel findings and sanctions made against an undergraduate student accused of sexual misconduct in a campus disciplinary hearing. Judge Pressman, ruling on a petition for writ of administrative mandate filed by the accused male student, held that the hearing had violated the accused student’s rights to due process and was unfair.

As is typical in college campus sexual assault cases, the accuser and the accused, both undergraduate students, were not strangers. They were both involved in the Greek system and had a sexual relationship prior to and following the alleged instances of sexual assault, and alcohol and excessive student drinking played a role. What began as a typical college hookup culminated in the female student accusing the male student of three separate instances of sexual assault.

In the months that followed, the university conducted a comprehensive Title IX investigation. The campus officer spearheading the investigation prepared a full report based on multiple interviews of the accuser, written offers of proof from the accused and his attorney, 14 witness interviews, as well as text messages between the students. There was insufficient evidence to move forward on two of the three alleged instances but sufficient evidence to move forward on one. In December 2014, the university disciplinary hearing panel found by a preponderance of the evidence that the accused male student had violated UC San Diego’s student misconduct policy. The student was sanctioned with a suspension for one quarter. After the accused student appealed, the university significantly increased his penalty without explanation.

In a detailed, six-page ruling, the court found that the accused student was not afforded a fair hearing for a number of reasons, including that 1) the investigating officer did not testify and the panel relied her written report and its conclusions (based in part on witness statements which were not made available to the accused prior to the hearing); 2) the accused submitted 32 questions for the panel to ask the accuser and the panel asked only nine (the panel did not limit the accuser’s questions); 3) the accuser was behind a barrier during the proceedings which the court did not find necessary; and 4) the panel gave improper weight to the accused’s invocation of his Fifth Amendment right of privilege against self-incrimination.

The court held that the increased penalties against the accused appeared to be punitive for filing an appeal. The court found that it must exclude the report from consideration, and therefore the panel’s finding of non-consensual activity was not supported by the evidence.

This San Diego Superior Court case does not set any legal precedent. However, the takeaway is that a university’s investigation and hearing process cannot be equitable unless it is impartial and affords both the accuser and the accused their due process rights. While the laws are primarily drafted to assist victims, campuses are open to liability if they fail to afford either party a fair hearing. Campuses have competing responsibilities in establishing policies, investigating victim complaints and administering disciplinary hearings. This case is a reminder that universities must be cognizant of the accused student’s rights throughout the process, as well.

- Submitted by Sarah Williams, an associate in the San Diego office of Ogletree Deakins.

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