News and Commentary

She Said He Assaulted Her. Witnesses IN THE ROOM Said It Didn’t Happen. He Was Still Suspended.

A female student claimed a male student assaulted her while they lay next to each other on a bed one night after drinking. Just a few feet away, the man’s girlfriend and roommate were talking, and neither heard or saw anything corroborating the woman’s claims. The school suspended him anyway.

In a scathing ruling, Judge Donna D. Geck wrote how deficient the University of California-Santa Barbara’s (UCSB) investigative process was and ordered the school to reverse its decision against the male student.

“Here, a university held a hearing to determine whether a student violated its student code of conduct,” Geck wrote. “Noticeably absent was even a semblance of due process. When the accused does not receive a fair hearing, neither does the accuser.”

She contended that the male student, identified in court documents as John Doe, “was denied access to critical evidence; denied the opportunity to adequately cross-examine witnesses; and denied the opportunity to present evidence in his defense.”

On June 26, 2015, the accuser, identified as Jane Doe in court documents, attended a birthday party for John’s girlfriend (identified in court documents as Eyewitness One). The party was held at John and his girlfriend’s apartment, which they shared with another student, identified in court documents as Eyewitness Two. Jane, drunk, got under the covers of a mattress in the living room, according to the documents.

When John returned to the apartment, also drunk, his girlfriend told him to take a nap on the mattress since they were going to the beach later that day. John, according to court documents, laid on top of the covers, fully clothed, facing away from Jane. His girlfriend and their roommate sat on the couch talking, just two-and-a-half feet away.

During this time, Jane would allege later, John sexually assaulted her by fondling and sucking on her breasts, removing her bottom clothes and penetrating her vaginally and anally with his fingers.

Jane waited two days after this alleged assault to go to the Santa Barbara County Sexual Assault Response Team (SART). She also reported the alleged assault to police but wouldn’t name her alleged attacker or where the incident took place. Two days later, now June 30, 2015, the complaint was sent to UCSB’s Title IX office, which attempted to contact Jane to no avail.

A month later – July 31 – Jane told campus police she now wanted her complaint investigated, and such an investigation was opened by the Title IX office on Aug. 3.

John wouldn’t be notified that he was under investigation until Sept. 16, when he was told by the school that he was being placed on interim suspension during the investigation and was banned from the UCSB campus and dorms.

John denied the assault, saying he never touched Jane, and contested the suspension by providing eyewitness statements and photographs to support his claim during an informal hearing on Sept. 29 with assistant dean of students Suzanne Perkin. Two days later, Perkin emailed campus police detective Dawn Arviso to “reconfirm that there is physical evidence of an assault in this case.” Arviso responded by saying “[t]he SART report states bruising and laceration noted in anal area,” but did not provide the actual report – which showed nothing of the sort.

John wasn’t told about this email for several months, giving him no time to respond to the SART report while contesting his interim suspension.

One year after the alleged incident – on May 17, 2016 – the Title IX office finished its investigation and found Jane’s claims to be substantiated. On June 29, 2016, John was informed that he was to attend a hearing on July 12, 2016 over the allegations. He had 12 days to submit information or witnesses he wanted the hearing committee to review. He was told this information would be included in a “hearing packet” with Jane’s initial report, the notes and report from the Title IX investigator, and UCSB’s correspondence with the parties. John would have to make an appointment with an administrator to view the packet prior to the hearing, or wait and view it at the hearing.

John submitted his evidence and list of witnesses by July 6, while Jane submitted nothing. The day before the hearing, July 11, John was notified that it would be pushed back to Aug. 16 “to ensure all requested information is gathered, made available for review in a timely manner to all parties prior to a hearing, and available for review by the [Committee] during the hearing.”

John contested, saying one of his witnesses – his girlfriend – would be studying abroad at that time and would be unable to attend. He was overruled.

Before the newly scheduled hearing, Jane submitted her evidence and witness list, which consisted of the cover sheet of her SART exam and another SART document that detailed what medications she was currently taking.

Despite UCSB’s requirement to audio record the proceeding and keep notes, no transcript or recording of the hearing exists. All that exists is a summary of the testimony, which was full of redactions and ellipses, according to court documents.

Jane claimed during the hearing, according to existing notes, that she was awoken from her sleep by “an intense, throbbing pain” and felt her shirt being lifted. She claimed someone was touching her, but she didn’t know who and “started to panic … yet [she] was frozen, paralyzed.” She claimed she pretended to sleep hoping whoever was hurting her would stop. She heard two people on the couch next to her, but they didn’t appear to hear any of this. She claimed John unhooked her bra and heard the sound of a cell phone camera. She thought someone took a photo of her breasts.

She said she considered yelling but didn’t. She claimed her assailant briefly stopped but then began penetrating her vagina and anus with fingers. She said the person assaulting her finally got up and she realized it was John. She said he returned to the bed and began assaulting her again. She said she mumbled and eyewitness one – John’s girlfriend – came over. Jane said she told eyewitness one in French that she “did not feel good and wanted to go home.” Eyewitness one got her some water and returned to the couch.

Jane said she then began making more noises – but did not yell – and John finally stopped. Eyewitness one allegedly came back at this point and Jane said the person behind her was hurting her. She said eyewitness one said she “must be having a bad dream” and that her pants were still on. Jane claimed before the hearing committee that she showed eyewitness one her pants and underwear had been removed, and that eyewitness one began screaming for everyone to leave the apartment and cried. Jane claimed John’s girlfriend and their other roommate– eyewitness one and two – walked her home and she told them what happened.

John disputed all of this. He said he returned to his apartment around 12:30am after drinking elsewhere. He said he was really drunk and couldn’t stay awake while sitting on the floor next to his girlfriend and eyewitness two. His girlfriend told him to lie down on the mattress next to Jane to nap. John testified that “[t]he first [he] heard of [Jane’s] allegations was when she woke [him] up by basically yelling about someone hurting her.”

He said he had awoken from a deep sleep and thought she was having a nightmare. He also testified that he had a genetic neurological disorder – a “form of palsy” – that affects his motor skills, especially when drunk, according to court documents. His mother testified at the hearing, saying it was a movement disorder that included tremors, and that John would be unable to perform any of the acts Jane accused him of while drunk and tired.

John’s girlfriend testified via Skype, and said it was physically impossible for John to have sexually assaulted Jane as she described. Eyewitness one said she could see the bed in her peripheral vision that night and heard and saw no sexual assault, and that because of John’s condition there was no way he could have conducted the assault without being detected. She said Jane woke up confused and speaking in a foreign language. Eyewitness one also said she didn’t scream or cry when Jane woke up.

After walking Jane home, the two eyewitnesses looked at the mattress and sheets for signs of the sexual assault Jane described but found nothing. John’s girlfriend told the committee that she was Jane’s best friend at the time and “would have been on [her] side” if John had actually done something.

The girlfriend also said that Jane was wearing a shirt and underwear when she got out of bed, but not the pajama bottoms she had given her. She said Jane often took off the pajama bottoms if she got hot.

Eyewitness two corroborated eyewitness one’s testimony and said it was “not physically possible” for Jane to have been assaulted as described. John even provided the mattress and sofa at the hearing to show how close the eyewitnesses were during the alleged assault.

The police detective who claimed the SART report showed “bruising/laceration noted in the anal area” testified during the hearing. Jane only provided the cover sheet of the SART report (which only contained her name) and the second page that listed the name of the exam nurse and her current medications. The second page includes a recommendation for Jane to take an Epsom salt bath to soothe anal discomfort, but it does not mention bruising or lacerations.

“The Committee relied on the detective’s recollection that this statement was in fact in the SART report,” according to court documents.

John tried to question Jane about the side effects of the antidepressant she was taking the night of the alleged assault. Those side effects – made worse by consuming alcohol – included “hallucinations and sleep paralysis and night terrors,” according to John’s testimony.

John’s mother called the manufacturer to ask about the effects of the medication, but was not allowed to testify about what she learned.

Despite the evidence and witness testimony, John was found responsible by the committee, who claimed “it would have been possible for an assault as described to occur without the attention of witnesses who were facing each other and conversing.” He was suspended for two years, but filed a lawsuit, saying he was denied due process because he couldn’t examine the actual SART report and wasn’t allowed to present exculpatory evidence.

The court denied his writ of mandate request, and he appealed. It is that appeals court that now reverses the lower court’s decision in a scathing ruling that takes UCSB to task for how it treated John.

“It is ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy,” the court stated. “This case turned on the Committee’s determination of the credibility of the witnesses. Credibility cannot be properly decided until the accused is given the opportunity to adequately respond to the accusation. The lack of due process in the hearing here precluded a fair evaluation of the witnesses’ credibility. In this respect, neither Jane nor John received a fair hearing.”

The court reversed the school’s judgment and ordered the lower court to grant his writ of administrative mandate. It also awarded him “costs on appeal.”