A California judge’s ruling that a University of California, San Diego, student accused of sexual assault was given an unfair punishment by the school may serve as a warning, legal experts say, to universities that accused students must be given the same rights in the sexual misconduct process as those who file the complaints.
San Diego County Superior Court Judge Joel M. Pressman ruled last week that UC San Diego failed to give a fair trial in December 2014 to the student, who was identified only as John Doe in court documents, after a sexual encounter with the accuser that took place in February 2014.
The judge said that because the school didn’t offer Doe access to statements from his accuser or witnesses, and also failed to give him the opportunity to properly cross-examine his accuser in front of the school’s sexual misconduct panel, the university’s processes were unfair. The judge also recommended that Doe’s suspension from UC San Diego be lifted because there wasn’t enough evidence that he pushed his accuser into unwanted sexual activity, as she had alleged.
“While the Court respects the university's determination to address sexual abuse and violence on its campus … the hearing against petitioner was unfair,” Pressman wrote in his opinion.
The accused student’s attorney, Mark Hathaway, told the San Diego Union-Tribune newspaper that the case could send the message to colleges that students accused of sexual assault must be given a fair shake in the adjudication process.
“It’s encouraging to see courts recognizing that sexual misconduct complaints on campus cannot be resolved at the expense of constitutional rights and fundamental fairness,” he said.
U.C. San Diego has said that it is considering appealing the ruling.
The University of California system issued a new “affirmative consent” sexual assault policy in 2014 — meaning that sex is consensual only if all parties give a firm “yes.” That policy applies to students, faculty and staff at all 10 University of California campuses, including San Diego, and was introduced in the wake of multiple student complaints filed to the Department of Education that sexual assaults on campus were handled poorly.
The U.S. Department of Education has been investigating more than 100 colleges and universities in the U.S. after students alleged that their cases were mishandled, amounting to a violation of Title IX of the U.S. Education Amendments of 1972, which bans sex discrimination at all public schools.
But amid these efforts, some experts have said that the rights of the accused have been trampled in the efforts to make sure the victims get their due.
For example, some 28 current and retired Harvard Law School professors signed an op-ed published in the Boston Globe newspaper last October objecting to the university’s new sexual assault policy, saying it lacked “the most basic elements of fairness and due process” and was “overwhelmingly stacked against the accused.”
Brett Sokolow, CEO of the National Council for Higher Education Risk Management, a Pennsylvania-based group that represents schools all over the country in sexual misconduct cases, says that at least 55 lawsuits have been filed against universities by students accused of sexual assault in the last 18 months.
“A lot of cases are coming out showing as that [schools’] processes aren’t working,” he said. “If you engage in a corrupt process like this, the courts are going to hold you accountable.”
While Sokolow doesn’t think the U.C. San Diego case sets any new precedent on a national scale, he says that two accused students’ lawsuits in particular — one against Reed College in Oregon and another against Boston College — could be significant. In both cases, the students accused of assault allege that their schools’ sexual assault policies violated Title IX laws against gender discrimination.
Neena Chaudhry, an attorney in the education and employment group at the National Women’s Law Center in Washington, D.C., stressed the importance of transparent processes and readily available resources for all students dealing with sexual assault, from those who come forward to report it as well as those who have been accused.
“The reality is that there does need to be a fair process for everybody,” she said.