A student accused of sexual assault has received some reprieve after the California state appeals court criticized his college for not allowing him to test the credibility of his accuser through cross-examination.
John Doe, as he’s referred to in court documents, will have his suspension from Claremont McKenna College (CMC) in California overturned after the court determined that his inability to question his accuser, referred to as Jane Roe, hurt his case. Jane had continually sent friendly messages with John and told friends she wanted to date him after their sexual encounter.
“We hold that where, as here, John was facing potentially severe consequences and the Committee’s decision against him turned on believing Jane, the Committee’s procedures should have included an opportunity for the Committee to assess Jane’s credibility by her appearing at the hearing in person or by video conference or similar technology, and by the Committee’s asking her appropriate questions proposed by John or the Committee itself. That opportunity did not exist here,” the court ruled. “Accordingly, we reverse the judgment.”
The appeals court cited a previous ruling from the 6th circuit court of appeals which held that “[t]he ability to cross-examine is most critical when the issue is the credibility of the accuser.”
What makes this ruling interesting is the fact that CMC is a private college, which has generally been freed from the constitutional requirements placed on public colleges and universities.
The California appeals court further concluded that John’s case, and that of the student in the 6th circuit, “distill to a set of core principles applicable to cases where the accused student faces a severe penalty and the school’s determination turns on the complaining witness’s credibility."
As author and professor K.C. Johnson noted on Twitter, requiring a hearing in which the accuser could be questioned to establish credibility, and the questioning itself, “Would seem to wholly rule out the ‘single investigator’ model praised by the Obama [administration].”
A single investigator model allows one person to investigate and determine punishment, essentially acting as the police, judge, jury, and executioner.
Further, the California appeals court insisted that cross-examination was not just beneficial to John, but to ensuring CMC reached the correct decision. CMC had argued that it did give John a chance to submit questions to be asked of witnesses. The court didn’t buy it, since none of John’s questions were asked.
“CMC’s argument ignores the Committee’s own need to assess Jane’s demeanor in responding to questions generated by the Committee or, indirectly, by John,” the court wrote.
Johnson has been following these cases for years, and says this is the “103rd time” a university has been “on [the] losing side in a court decision” since the 2011 Dear Colleague guidance document put out by the Obama administration, which set off a wave of schools seeking to expel accused students without due process out of fear of a federal investigation.
John and Jane had previously been casual acquaintances. On October 4, 2014, while at a party at CMC, Jane called John and asked him to meet her. The two had both been drinking, and Jane would later claim that John had encouraged her to take some shots of vodka earlier in the evening. John denied seeing her prior to her asking him to meet up.
The two met up and began kissing after a few minutes of talking. John asked if Jane wanted to go back to his dorm. The two returned to his room and, according to John, undressed each other and attempted intercourse with a condom but John had difficulty. Jane then claims he got frustrated and became rough with her sexually, so she asked him to stop. She told CMC investigators that he removed the condom and continued, at which time she struggled to get out from under him. She said she kept asking him to stop but he wouldn’t, so she waited until he passed out and then left the room.
John, on the other hand, says in his lawsuit that he and Jane mutually agreed to remove the condom, attempted “numerous sexual positions,” and that Jane never objected. He says he does remember her seeming tired and not “super into it” since she had previously made an effort when he was wearing the condom. John says in his lawsuit that Jane performed oral sex after intercourse and asked if they would be “friends with benefits” before she left. He said “yes.”
After this encounter, Jane called several friends “distraught” and asking for them to go with her to purchase the morning after pill. They told the CMC investigator that Jane was upset that she had unprotected sex, but made no mention of sexual assault.
Jane and John texted the next day, and Jane said they needed to talk. John asked if he assaulted her, and she responded: “No haha you did not” and only mentioned the lack of a condom. John says in his lawsuit that he pretended not to remember the night before so that he wouldn’t give Jane the wrong idea about his feelings for her.
The two met up later that day and John gave Jane pregnancy tests. She gave him a comic book. They continued texting that day, but later on Jane said she was so sore she couldn’t walk and needed to see the school doctor. She said he had been “a bit rough.” When Jane went to the doctor the next day, she listed the reason for the pain as “excessive sex over prolonged period of [time] in a dorm room at CMC.” The doctors asked if she had been sexually assaulted and she said no. She was referred to another doctor and still didn’t say she was sexually assaulted.
She later texted a friend: “[T]his is gonna ma[k]e a [g]ood story one da[y]” and “[I] just want [John].” She added: “Haha but I really don’t know if that’s gonna happen. I can hope but I don’t want to get my hopes up. Hope for the best but expect the worst.”
Jane then texted John to come over because she wanted to “explain everything.” At that time, she still didn’t claim to be sexually assaulted.
On October 7, she texted about superheroes. Jane texted a friend that day that John was “so HOT.” Jane would later tell campus investigators she pretended to be interested in John so her friends wouldn’t think she was promiscuous.
On October 9, Jane attempted to meet up with John at a party but couldn’t. She texted him about it, and later told investigators this upset her.
Later that month, John joked that he had sex with Jane “so hard that he put her in the hospital” and joked that he was the “bone hammer.” He used this nickname with Jane and even asked her to send him a copy of her medical report as proof — in January 2015. She sent it and they both said it was “hilarious,” according to court documents.
Around Valentine’s Day, the joke continued, with one of John’s friends referring to it in a joke Valentine’s gram. John thought Jane sent it, and asked her about it. This upset Jane, who texted a friend claiming that on that night now four months earlier, John had sex with her after she asked him to stop.
On March 4, Jane asked John to meet in the evening. He asked if they could meet in the morning, which upset Jane. The next day she reported him to Scripps College (the school she actually attended). Scripps contacted CMC, which started an investigation.
John was suspended, so he sued.