Metropolitan News-Enterprise


Thursday, October 11, 2018


Page 3


Court of Appeal:

Student’s Suspension for Alleged Assault Contravened Due Process


By a MetNews Staff Writer


A University of California, Santa Barbara student who was suspended following a sexual assault allegation was completely deprived of due process and is entitled to a rescission of the punishment, Court of Appeal for this district’s has declared.

The opinion by Div. Six Presiding Justice Arthur Gilbert was filed Tuesday. It reverses Santa Barbara Superior Court Judge Donna D. Geck’s decision denying a writ of administrative mandate to the student, identified only as “John Doe” in court proceedings.

Gilbert said at the outset of the opinion:

“Due process—two preeminent words that are the lifeblood of our Constitution. Not a precise term, but most everyone knows when it is present and when it is not. It is often most conspicuous by its absence. Its primary characteristic is fairness. It is self-evident that a trial, an adjudication, or a hearing that may adversely affect a person’s life must be conducted with fairness to all parties.

“Here, a university held a hearing to determine whether a student violated its student code of conduct. Noticeably absent was even a semblance of due process. When the accused does not receive a fair hearing, neither does the accuser.”

Underlying Allegations

Doe was hosting a party with his girlfriend at the apartment they shared. The alleged victim, a female friend of the hosts (identified in the opinion as “Jane Roe”), was also in attendance.

The friend began to feel sick after getting “pretty drunk” and laid down on the bottom bunk of a bunkbed. Later, Doe, who was also drunk, was told by his girlfriend to lie down with Roe because the top bunk was covered with luggage.

Doe went to sleep lying on top of the covers, facing away from Roe. According to her, she woke up to the feeling of someone removing her bra and pajama pants, committing a sexual act on her; during this time, she said, she was paralyzed with fear.

She claims to have entreated Doe’s girlfriend for help, and that the girlfriend screamed and cried when she discovered her friend naked from the waist down.

Student’s Version

The student denied assaulting Roe, and claimed he had been asleep and awoke upon hearing her scream that someone was assaulting her. Thinking she was having a nightmare, he got up and left to allow his girlfriend to attend to their friend.

The girlfriend corroborated the student’s version of events. She and a third roommate had been sitting on a couch in the same room as the bunkbed during the time of the alleged incident.

The roommate also confirmed her housemates’ testimony, and declared that the alleged victim’s story was “not physically possible.”

Report and Investigation

Two nights after the party, the student’s friend underwent a medical examination by the county’s sexual assault response team (“SART”). She made a report to UCSB police, but declined to give details of the incident until a month later.

The university put Doe on interim suspension while its investigation was pending. He provided the assistant dean of students, Suzanne Perkin, with his version of the events.

Perkin communicated via email with UCSB police detective Dawn Arviso, who informed the administrator that “[t]he SART report states ‘bruising and laceration noted in anal area.’ ” Neither Perkin nor the student received a copy of the report, and the student was not informed of the email correspondence until several months later.

The Santa Barbara Sheriff’s Office investigated the incident, but declined to press criminal charges. The school completed its investigation almost a year after the night of the party, and issued a report.

Administrative Proceedings

The university charged the student with violation of its policy against sexual assault and scheduled a hearing before a two-person committee.

The alleged victim submitted two pages of the SART report, including the cover sheet and another page indicating that she was on an antidepressant called Viibryd. Doe received a copy of those pages shortly before the hearing.

At the hearing, Arviso testified as to her email to Perkin, but would not reveal what else was in the report.

Doe attempted to elicit testimony from his mother, who had called Viibryd’s manufacturer that morning, about the drug’s side effects, which include sleep paralysis and night terrors when taken with alcohol. The committee barred that line of questioning.

Doe and his mother testified that Doe has a type of palsy which inhibits his motor function, especially when inebriated. They explained that, while he was drunk, it would be difficult for him to even remove his own pants, let alone deftly and silently undress his friend.

A polygraph examiner also testified, and explained that the student had passed a lie-detector test indicating the truthfulness of his version of events.

The committee disregarded the student’s evidence and found that he had assaulted Roe.

Gilbert’s Opinion

Gilbert wrote:

“John contends he was deprived of a fair hearing when the Committee allowed the detective to testify about a single phrase from the SART report without requiring production of the entire report to the Committee and to him. Without access to the complete SART report, John did not have a fair opportunity to cross-examine the detective and challenge the medical finding in the report. The accused must be permitted to see the evidence against him. Need we say more?”

He continued:

“While UCSB’s rules provide ‘no formal right to discovery,’ the Committee’s rulings during the hearing placed John in a catch-22; he 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.”

He noted that the student’s counsel was not permitted to take an active role in the hearing, but UCSB’s general counsel was allowed to make formal evidentiary objections. He pointed out that the committee had barred the student’s mother from testifying about Viibryd, but had allowed Aviso to offer a medical opinion on causation despite not being a medical professional nor even part of SART.

All this, he explained, was error.

University’s Conduct ‘Ironic’

The jurist declared:

“It is ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy. This case turned on the Committee’s determination of the credibility of the witnesses. Credibility cannot be properly decided until the accused is given the opportunity to adequately respond to the accusation. The lack of due process in the hearing here precluded a fair evaluation of the witnesses’ credibility. In this respect, neither Jane nor John received a fair hearing.”

The case is Doe v. Regents of the University of California, B286538.

Arthur I. Willner of Leader & Berkon in Los Angeles was counsel for the student. The university was represented by Jonathan D. Miller and Alison M. Bernal of Nye, Peabody, Stirling, Hale & Miller in Santa Barbara.


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