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Expulsion Not Overly Harsh for Student Who Had Nonconsensual Sex With Woman—C.A.
By a MetNews Staff Writer
Expulsion was not an unduly harsh penalty to impose on a college student who had sex with a classmate who had consumed alcohol and passed out, the Court of Appeal for this district declared yesterday.
In an unpublished opinion by Presiding Justice Arthur Gilbert, Div. Six affirmed San Luis Obispo Superior Court Judge Tana L. Coates’s denial of a petition for writ of administrative mandate sought by the ousted student, identified in the opinion as “John Doe.” The decision upholds a determination by California Polytechnic State University–San Luis Obispo in response to a complaint filed by “Joe Roe” which the university investigated.
Gilbert noted that Cal State has issued an executive order—2019 E.O. 1097—prohibiting sex without obtaining “affirmative consent,” which it defines as an “informed, affirmative, conscious, voluntary, and mutual agreement to engage in sexual activity.”
Incapable of Consenting
The jurist said that “[s]ubstantial evidence supports the findings that Jane was incapacitated and unable to affirmatively consent when she and John engaged in sexual intercourse.”
He declared:
“Here, John committed a serious offense: He engaged in sexual intercourse with a person he knew or should have known was incapacitated and unable to affirmatively consent. John was a senior when the incident occurred, and had undertaken four years of sexual misconduct prevention trainings. And while he had no prior allegations of misconduct, he never admitted responsibility for what occurred with Jane. Ordering John’s expulsion—a penalty consistent with the sanctions imposed under 2019 E.O. 1097 in similar situations—was not an abuse of discretion.”
Thoroughness of Investigation
Doe protested that the university’s investigation lacked thoroughness, noting that Roe’s sexual assault response team (“SART”) exam at the hospital had not been secured. Gilbert remarked:
“2019 E.O. 1097 did not require the investigator to ‘collect and consider all of the evidence,’ as John claims, but instead required her to take ‘reasonable steps to gather all relevant evidence’ (Italics added.) 2019 E.O. 1097 also permitted the investigator to decline to gather evidence if it was duplicative or irrelevant, or if obtaining it would have been unduly burdensome.
“Here, the investigator asked Jane—the only person who could provide her SART exam and police report—to provide those documents. Jane declined to do so. John argues the investigator should have taken additional ‘reasonable steps’ to obtain those documents. What would those steps be? 2019 E.O. 1097 does not give investigators subpoena power.”
The opinion did not explain why anonymity was accorded not only the victim, but also the aggressor.
The case is Doe v. White, B313836.
Mark M. Hathaway and Jenna E. Parker of the downtown Los Angeles firm of Hathaway Parker represented Doe. Susan Westover and William C. Hsu of the California State University Office of General Counsel in Long Beach acted for the university system.
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