After several troubling court decisions on the handling of college sex cases, a state judge in California has issued a ringing defense of due process. The ruling by Judge Joel Pressman, first reported by Ashe Schow, held that the University of California-San Diego (UCSD), had provided a fundamentally unfair procedure to a student accused of sexual assault. Scott Greenfield has an excellent analysis of the ruling, which also has been covered by the Washington Post and the Los Angeles Times, as well as by FIRE.
The case involved two students (both pseudonymous) who had a brief affair in early 2014. Contemporaneous text messages the accuser sent suggested that the intercourse had been voluntary, and that the accuser was at least somewhat experienced with alcohol. The sexual relationship quickly ended, but soon after the accused student attended a late spring social event at the accuser’s sorority (with another date), the accuser filed a complaint with UCSD.
The accuser wrote out a statement and was interviewed by one of UCSD’s “complaint resolution officers,” Elena Acevedo Dalcourt. (UCSD has refused to turn over either the statement or Dalcourt’s interview notes.) Only then did the accuser make a formal statement alleging two separate instances of sexual misconduct: first on the evening of a party (at which she had “brought a change of clothes to [the accused student’s] place,” with the expectation of sleeping over) and then on the morning after. She also claimed that despite a text message that she had a contact who “usually” purchased her alcohol (since she was underage), she actually was “inexperienced” with alcohol, and the accused took advantage by encouraging her to drink heavily.
Investigator Dalcourt found insufficient evidence of the first claim, but concluded that it was likely sexual contact occurred without “effective consent” the following morning. The investigator reached this conclusion because the accuser, in her interviews, “exhibited signs of a trauma victim.” Dalcourt’s report did not reveal what those signs were.
UCSD’s theory of the crime was as follows: after a night of what appears to have been voluntary intercourse, despite the accuser’s later claim, it was nonetheless at least 50.01 percent probable that the accuser told the truth when she charged that there was non-consensual sexual contact the following morning—even though later that same day, she would (a) text the accused about hooking up; (b) attend a formal at her sorority with him; and (c) have consensual intercourse with him again that night.
The UCSD Trial
A disciplinary hearing occurred on December 12, 2014, before a three-person panel of two UCSD administrators and a graduate student. The proceedings could have been a parody of how a college might seek to deny due process. In addition to a victim’s advocate at her side, the accuser had someone to speak on her behalf—a residence life bureaucrat named Anthony Jakubisin. He presented the case against the accused—and did so knowing that he couldn’t be challenged in any way by the accused’s attorney, Mark Hathaway, since university policy prohibited Hathaway from speaking at the hearing. Jakubisin informed all parties that “demeanor may be taken into consideration when deciding credibility”—but since the university allowed the accuser to sit behind a partition, the accused could not gauge her non-verbal reactions to questions. The two sides disputed whether the accuser was also shielded from the disciplinary panel; the university maintained that panel members could see her face, though not, it seems, her hands, while Hathaway, who was in the room, argued that she was shielded from the panel as well.
Jakubisin opened his case by referencing “prior sexual misconduct” by the accused student, which “seriously undermines” the accused’s claims of innocence from the charge that he faced. Yet UCSD’s own investigation had found no “prior sexual misconduct” by the accused. In a court of law, a prosecutor’s false claim of criminal conduct by the accused likely would have resulted in at least a mistrial. In UCSD’s disciplinary process, Jakubisin’s statement merited no response from any of the three potted-plant panelists. And the accused had no opportunity to rebut it through an opening statement from his lawyer.
Jakubisin then moved forward with questions for the sole witness at the hearing, the accuser, who said that the accused had tried to improperly touch her the first morning after they slept together. Though the only unequivocal claim of an actual assault came in the report from Investigator Dalcourt, based on interview notes that the university did not produce, Dalcourt didn’t testify at the hearing.
Citing the dangers of a victim re-traumatized by aggressive questioning, UCSD policies prohibit an accused student from cross-examining his accuser, even in cases (like this one) when the accuser’s word is the only evidence presented. The accuser therefore followed policy, and wrote out questions—he submitted 32 of them—that the panel chair could (or could not) choose to ask the accuser. This system, as Scott Greenfield has pointed out, is unfair on its face, since “questions beget answers, and answers beget more questions. Putting aside whether [the accused was] adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.” Even conceding these limitations, panel chair Rebecca Otten, the school’s Director of Strategic Partnerships and Housing Allocations, seemed indifferent to fairness. She presented to the accuser only nine of the questions submitted by the accused, and several of these she altered. She frequently denied questions without any explanation at all.
The rejected questions were hardly immaterial. Otten refused to ask about the text messages the accused student produced—which at the very least called into question the accuser’s credibility. The chair refused to ask whether the accuser had turned over to UCSD “all relevant text messages concerning [her] allegations.” Otten refused to ask whether the accuser had prepared her written report after she was interviewed by UCSD’s investigator, notes for which the university would not produce. The chair refused to ask whether the accuser had any meetings with de facto prosecutor Jakubisin before the hearing. And Otten refused to ask whether the accuser had “been honest and forthright at all times during the investigation . . . up through and including” the unsworn testimony she presented in the hearing. In an Orwellian argument, the university later cited “the requirements of due process” for Otten’s refusal to ask any of these questions.
At the hearing, the accused student unequivocally denied that any improper sexual contact occurred on the morning of February 1, 2014. (The accuser, of course, had asserted that the male student was “trying” to touch her in a sexual fashion.) Yet de facto prosecutor Jakubisin implied in his closing statement that the accused student had at some point in the case conceded to the contact, and instead had tried“to establish that there was some sort of implicit or explicit consent to digitally penetrate the vagina of the complaining witness on the morning of February 1st, because of past communication or activities between the two.” But the accused student had never made such a claim. Yet again, the panel allowed Jakubisin to speak unchecked, and yet again, because of UCSD procedures, the accused student’s attorney couldn’t rebut the misleading statement.
Given such one-sided procedures, it came as little surprise that the panel found the accused student guilty. Almost incredibly, it did so largely on the basis not of the testimony that it had just heard, but instead on the report produced by Dalcourt—who didn’t appear before the disciplinary board. The panelists also seemed oddly interested in the accuser’s deep personal ambivalence, noting that she “stated that she physically wanted to have sex with [the accused] but mentally wouldn’t.” And they implicitly faulted the accused student for sometimes invoking the 5th amendment, since the panel wanted to “hear more” from him. The panel recommended a one-term suspension, which various UCSD administrators subsequently increased to more than a year, without explanation.
You can read the university’s filing claiming that this record showed that the accused student received an “abundance of process,” a “generous process” even. (Imagine what an “ungenerous” process would have looked like!) As part of the university-provided “substantial procedural safeguards,” UCSD conceded, it hadn’t given the accused student information on the accuser’s initial interview with the investigator, or the witnesses’ interview with the investigator, or the accuser’s initial statement. But, it maintained, the panel never received this important information, either, so the accused student could claim no harm. UCSD attorneys also ridiculed the accused for positing “a false choice between compliance with Title IX and the due process rights of accused students”—yet the history of the last five years has shown that at too many universities, this choice is all too true.
Unlike Judge Abrams in the Vassar case and Judge Furman in the Columbia case, Judge Pressman did his job. Faced with a blatant denial of due process, he ordered the university to set aside its judgment against the accused student.
At the conclusion of the school’s disciplinary hearing, Otten, the panel chair, affirmed that “this process is educational in nature.” UCSD provided the accused with quite an education in the importance of due process.