Metropolitan News-Enterprise


Wednesday, October 20, 2021


Page 1


Court of Appeal:

College Student Has No Absolute Right to Live Testimony

Confrontation of Witnesses Not Necessary in Disciplinary Proceeding Over Sexual Misconduct Allegation

Where Accused Student’s Own Account of Incident Reveals Culpability, First District Panel Says


By a MetNews Staff Writer


A student accused in a university disciplinary proceeding of having nonconsensual sex with a classmate in violation of a school policy was not entitled to present live testimony in light of his own inculpatory account of what occurred, Div. Two of the First District Court of Appeal said in an opinion that was certified for publication yesterday.

Justice Douglas P. Miller authored the opinion, filed Sept. 30. In it, he declared inapplicable the Jan. 4, 2019 decision by Div. Four of this district’s Court of Appeal in Doe v. Allee.

Acting Presiding Justice Thomas L. Willhite Jr. said in that case:

“[W]e hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing before a neutral adjudicator with the power independently to find facts and make credibility assessments.”

 Roe’s Intoxication

In the present case, Miller wrote, “John Doe,” who had been a student at the University of California, Davis, admitted that “Jane Roe,” with whom he had sex, had been intoxicated a few hours earlier.

“We conclude that, in this case, credibility was not central because John’s own account of the incident provided substantial evidence of the policy violation; therefore, the procedures mandated in Allee were not required.”

Roe had told an investigator that she “definitely consumed far too much” alcohol that night, and said of Doe:

“He, I guess, just took advantage of me. I was not in any state to give consent, which was really obvious.”

Doe’s account to the investigator was that Roe and others consumed a large amount of alcohol; Roe vomited in the bathroom and fell asleep on the bathroom floor at least twice; he remained in her room to make certain she was all right; he got in bed with her and fell asleep; upon his waking at about 2:30 a.m., she asked if he had a condom and said she wanted to “do it”; she confirmed that she was serious and, upon inquiry, stated she was sober.

 Roe explicitly consented, he asserted.

Two-Year Suspension

An appeal officer upheld the investigator’s findings—principally that Roe’s intoxication prevented her from having the capacity to consent—and ordered that Doe be suspended for two years and be barred from university housing. The associate vice chancellor of student affairs denied Doe’s second-level appeal.

Doe petitioned for a writ of administrative mandamus, arguing that he had been denied due process because he was not afforded an opportunity to cross examine Roe and other witnesses in a live proceeding before a neutral arbiter. Alameda Superior Court Judge Alameda Frank Roesch denied relief, explaining:

“No reasonable person who witnessed what John Doe admitted to seeing could think that Jane Roe had the capacity to consent to sex, even after a few hours to sober up.”

In his opinion affirming the denial of a writ, Miller said:

“On this record, we conclude John’s account alone was sufficient to establish that Jane was unable to consent due to alcohol and that a reasonable person in John’s position should have known that. As a result, we further conclude credibility was not central to the adjudication and, consequently, the procedures outlined in Allee were not required.”

Substantial Evidence

He went on to declare that substantial evidence supports the university’s action, saying:

“The issue is whether there was substantial evidence to support a finding that Jane was incapacitated due to alcohol at the time of the sexual activity and that a reasonable person in John’s position should have known that. John’s own account of Jane’s state that night and the accounts of eyewitnesses provide substantial evidence of Jane’s incapacity.”

Miller added:

“[T]he general tenor of John’s argument appears to be that if a student has sex with a person who is visibly impaired by intoxication and the person later cannot remember what happened, then the accused student’s version of events, including his subjective beliefs, must be adopted and lack of consent under UC Policy cannot—as a matter of law—be established by circumstantial evidence of the person’s incapacity. We decline to adopt such a position.”

The case is Doe v. The Regents of the University of California, A159004. Mark M. Hathaway and Jenna E. Parker of the downtown Los Angeles firm of Hathaway Parker Inc. represented Doe and Jean-Paul P. Cart of the San Francisco office of Venable LLP acted for the university.

 Other ‘Doe’ Case

Also certified for publication yesterday by the First District’s Div. Two was another decision filed as an unpublished opinion on Sept. 30 involving a “John Doe” who incurred university discipline. That Doe was a senior at the University of California, Santa Barbara when he was accused of date violence, resulting in a three-year suspension, which meant that the awarding of his diploma was put on hold.

That student also relied on Allee, as well as the Dec. 11, 2018 decision by this district’s Div. Seven in Doe v. University of Southern California. In the USC case, Justice Gail Ruderman Feuer said:

“Where a student faces a potentially severe sanction from a student disciplinary decision and the university’s determination depends on witness credibility, the adjudicator must have the ability to observe the demeanor of those witnesses in deciding which witnesses are more credible.”

Finding the cases inapplicable, Miller said:

“[C]redibility of witnesses was not central to the determination because, as the trial court noted, John ‘submitted a detailed written response that admitted the essential allegations’ of Jane’s complaint.”

He forcibly threw her out of his house.

That case is Doe v. The Regents of the University of California, A159023.

Hathaway and Parker were Doe’s counsel and Jonathan D. Miller, Holly C. Blackwell of the Santa Barbara firm of Nye, Stirling, Hale & Miller, LLP represented the university.

In Allee, Hathaway and Parker were the lawyers for the appellant, and Hathaway two others were the appellant’s lawyers in the USC case.


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