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Judge: Disparity in campus tribunal ‘enough to shock the Court’s conscience’

By   /   February 27, 2017  /   No Comments

Part 3 of 5 in the series Due Process Wins
Creative Commons / Robert Carande

DUE PROCESS WIN: A judge has overturned the central findings of a sexual assault accusation.

A California judge has ruled that a university’s process for adjudicating a sexual assault accusation was so stacked against the accused that it was “enough to shock the Court’s conscience.”

Judge Joel Wohlfeil of the Superior Court of California, County of San Diego, ordered San Diego State University to “dissolve the finding” that an accused student refused to stop having sex with a woman after repeated requests to stop. Further, the school must vacate its findings that the accuser “became incapacitated” during sex and the accused continued to have sex with her.

Wohlfeil’s finding comes from SDSU, where a young woman – identified in court documents as Jane Roe – accused a young man – identified as John Doe – of sexually assaulting her shortly after giving her a marijuana brownie. Earlier in the night, the woman attended a party at a fraternity where she drank alcohol. She claimed to be very intoxicated after leaving the party and wanted to see John, with whom she had previously “hooked up” once before. She texted him asking to “hang out” and allegedly intended to “smoke weed and have sex” with John that night.

Jane’s friend drove her to John’s apartment and warned her that John “used cocaine” earlier that day. Jane smoked some marijuana with John and asked if he had any other drugs. John offered her a marijuana brownie, which she consumed. The two then engaged in consensual sex, but at some point their stories diverge. Jane claimed she became “incoherent” and that “her body was limp,” but that John continued to have sex with her, despite repeated requests to quit.

John maintains that the sex was “a hundred percent consensual” and that they only had sex for about 20 minutes, saying “it was no different than a previous time we had sex.” He denied that Jane ever asked him to stop.

SDSU determined after a lopsided hearing that John had sex with Jane while she was incapacitated and even after she asked him to stop. Jane’s advocate at the hearing categorized the encounter as “sexual assault” and “rape.”

Judge Wohlfeil noted that the federal government requires accusers and the accused to have equal access to lawyers or advisors when presenting evidence. In John’s case, this requirement was not followed. The woman who was initially assigned to investigate Jane’s claim, Dr. Lee Mintz, was supposed to remain unbiased. She quickly became an “advocate,” as SDSU’s counsel admitted, and became Jane’s advisor. She advised Jane on the process and evidence at the hearing, and was even allowed to speak on Jane’s behalf during the hearing.

John was not provided a well-trained advocate, and could only have access to one if he paid for an attorney, which he did. The attorney was not allowed to speak on John’s behalf and could only whisper advice throughout the hearing — meaning John, who was 19 at the time of the hearing, had to essentially argue his own case against a well-trained expert.

“The disparity of these circumstances is enough to shock the Court’s conscience,” Wohlfeil wrote.

Wohlfeil added that he didn’t believe SDSU should have provided John with an attorney, but an adult with “substantially similar skills, training and experience as Dr. Mintz” and allowed them to speak on John’s behalf. Not doing so “fundamentally deprived [John] of a fair hearing.”

Further, Mintz provided the hearing officer with Jane’s medical records “without authentication, foundation or explanation from any competent person,” the judge wrote. Witnesses were also allowed to speculate about Jane’s alleged “panic attack” following the incident. When John provided one of Mintz’s reports to a polygraph expert, his “credibility” was attacked by the hearing officer and his actions were called “inappropriate.”

John’s attorney provided the court with text messages and phone records that undermined Jane’s claims about how long the sex, and her alleged incapacitation, lasted. Still, he was found responsible.

Due to this unfairness, Wohlfeil granted John’s motion to “dissolve the findings” that Jane asked John to stop having sex with her and that John had sex with Jane even after she became incapacitated. John did not, however, contest the school’s findings supporting “the sanction of expulsion.” So while the underlying findings of the school’s investigation have been overturned, his expulsion has not.

Wohlfeil asked the school to “set aside its findings” on several central claims, but so far SDSU has not been ordered to retry John. A status conference has been scheduled for March 10 to make that determination.

Ashe Schow is the campus culture reporter for Watchdog.org. Contact her at [email protected] and follow her on Twitter @AsheSchow.

Part of 5 in the series Due Process Wins