Thursday, December 13, 2018
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Court of Appeal:
USC Student Expelled for Sexual Assault Was Denied Due Process by Adjudicator
By a MetNews Staff Writer
The Court of Appeal for this district has held that a USC student was denied due process before being expelled because the investigator/adjudicator who found that he had sexually assaulted a fellow student did not personally interview key witnesses to determine their credibility.
The opinion by Justice Gail R. Feuer of Div. Seven was filed Tuesday. It reverses Los Angeles Superior Court Judge Joanne B. O’Donnell’s denial of a petition for writ of administrative mandate by the expelled student, referenced as “John Doe.”
Doe was accused by a woman (“Jane Roe” in the opinion) of having non-consensual anal sex with her after a night of heavy drinking at a campus “paint party,” a type of shindig Feuer described as one where “students splattered paint on each other.”
The accused student contended that he had misinterpreted Roe’s consent to the particular act during the otherwise consensual encounter, but had ceased immediately upon her voicing an objection.
Investigator Assigned
Keegan Allee was assigned to investigate Roe’s complaint under the university’s federally mandated (Title IX) administrative process, and also served as the adjudicator who ordered Doe’s expulsion, a decision that was affirmed by a university appeals panel. She concluded that Roe was too intoxicated to have consented but if she did consent, that consent did not extend to anal sex.
In making her determination, Allee considered summaries of testimony from multiple witnesses who had been in and out of Roe’s apartment during and after the incident as to whether puddles observed at the apartment were blood or red paint, or whether there had been puddles at all.
The investigation summaries were prepared by another investigator, outside attorney Marilou F. Mirkovich, who had conducted the interviews; Allee did not personally interview several of the witnesses.
Credibility Key
Feuer noted that witness credibility was key to sorting out which version of facts was true. She wrote (using only first names of witnesses):
“Andrew and Sarah gave conflicting accounts as to the condition of the apartment and whether there was blood in the apartment on the morning of the incident. Andrew described Jane’s apartment as ‘disheveled,’ with ‘puddles of blood on the air mattress, which were about 6 inches in size,’ as well as ‘a lot of blood’ on the sheets and blood on the carpet. Yet Sarah stated when she returned to Jane’s apartment on the morning of April 13, it ‘seemed cleaner’ and looked ‘really empty.’ She was in the apartment for five or 10 minutes, and did not recall seeing blood or paint on the floor or mattress.”
She added:
“Dr. Allee found Sarah’s statement about the apartment and the absence of blood were not ‘sufficiently reliable,’ although she never interviewed Sarah to inquire about any inconsistencies in her statement or to assess her demeanor.”
Personal Assessment Required
The jurist went on to say:
“There is no question that expulsion from the university was a severe sanction. Given the conflicting witness statements and lack of corroborating evidence, a fair hearing required Dr. Allee as the adjudicator to assess personally the credibility of critical witnesses, including Sarah, Emily, and Andrew, in person or by videoconference or other technological means, which would have provided Dr. Allee an opportunity to observe the witnesses’ demeanor during the interview.”
In addition, Feuer said, Doe should have been permitted to cross examine Roe through the adjudicator, which he was not permitted to do.
The opinion also observes that Allee’s investigation was unfair under the university’s own procedures, as she did not request that Roe turn over clothing from the night of the incident, nor did she ask the student to release her medical records for use during the adjudication. However, The fact that Allee served dual roles in the proceedings was not violative of due process in itself, Feuer said.
The case is Doe v. University of Southern California, 2018 S.O.S. 5881.
The university was represented by Theane Evangelis of Gibson, Dunn & Crutcher’s downtown Los Angeles office. Mark M. Hathaway, Mark W. Allen and Jenna E. Eyrich of the downtown Los Angeles firm of Werksman Jackson Hathaway & Quinn acted for Doe.
Attorney Comments
Hathaway said in a written statement:
“Due to his expulsion from USC, which John Doe was required to disclose to possible transfer schools, John Doe has been unable to gain admittance to another four-year institution to continue his education. Now that the findings and sanctions from the unfair USC Title IX process have been reversed, John Doe should be able to continue his education.”
He commented that the decision “builds” on recent Court of Appeal opinions “that help define the scope of fairness and due process protections that colleges and universities must provide to accused students in sexual misconduct proceedings.”
Other Case
Hathaway presently represents an anonymous student expelled from Occidental College. There, the university used Mirkovich as both investigator and adjudicator.
The “John Doe” in that case was accused of rape after having sex with a female student while the two were drunk. Mirkovich found that the female was too intoxicated to have consented despite her apparent enthusiasm for the encounter evidenced by her texts to friends before and after, and that the expelled student’s drunkenness was no defense to the charge.
Doe’s appeal from Los Angeles Superior Court Judge Mary H. Strobel’s denial of a petition for writ of administrative mandamus is presently pending in Div. Seven.
Copyright 2018, Metropolitan News Company