Campus Due Process Litigation Tracker

Doe v. Regents of the University of California, 28 Cal. App. 5th 44 (Cal. Ct. App. 2018)

School type: Public
State: California
Federal Circuit: Ninth
Decision primarily favorable to: Student
Stage of litigation: Other
Keywords: Cross-examination, Exculpatory evidence

The court reversed the lower court’s finding and held that Plaintiff was entitled to a writ of administrative mandate.

Plaintiff and Jane Roe (Jane), both undergraduate students at the University of California, Santa Barbara, in 2015, attended a party and drank alcohol. Jane was lying on a mattress under the cover when Plaintiff, tired, lay down on the same mattress with his back to her. Plaintiff’s girlfriend and another eyewitness were sitting about two and a half feet away from them. According to Jane, Plaintiff sexually assaulted her when she was too incapacitated to consent, including unzipping her bra and digitally penetrating her anus. John claimed that he had a neurological disorder that would make it impossible for him to perform those acts when intoxicated.

The parties raised two major factual issues at the on-campus hearing. The first was whether side effects of Viibryd, an antidepressant that Jane was taking, could have caused her to have a vivid nightmare of being assaulted. Plaintiff did not learn the identity of the medication Jane was taking until the night before the hearing, when the university, after much delay, provided him with the hearing packet. Plaintiff’s mother called the drug manufacturer and sought to testify at his hearing about what she had learned — that the side effects of Viibryd may include “hallucinations and sleep paralysis and night terrors” that can be exacerbated by combining the medication with alcohol.

When Plaintiff questioned Jane at the hearing about the side effects of Viibryd, Jane declined to answer, stating “It’s my private medical information.” Plaintiff’s mother attempted to testify about what she had learned about side effects from her call to the drug manufacturer, but the university’s general counsel objected that she did not “have the expertise to lay the foundation for this type of evidence.”

The second factual issue related to the report from a medical exam performed by the Santa Barbara County Sexual Assault Response Team. Although “[t]he complete SART report was not produced at the hearing or disclosed to [Plaintiff] or his counsel,” a detective was allowed to testify about an email she sent during the investigation stating that “the SART report states ‘there was bruising/laceration noted in the anal area.’”

Because neither Plaintiff nor the hearing panel had the actual SART report, no one was able to meaningfully question the detective about what language in the report itself had prompted her email. Nor was anyone able to ask questions about what other findings were in the report, what else might have caused any bruising or laceration that was noted in the report, or anything beyond the detective’s personal recollection of one line of the report.

The court wrote that “[t]o argue that it is fair to allow the detective to testify about the contents of the SART report, but preclude the accused and the trier of fact from seeing the report, strains credulity.” In short, the court said, “The accused must be permitted to see the evidence against him. Need we say more?”

The court also noted other errors in the university’s proceeding. First, Plaintiff should have been allowed to present evidence about the side effects of Viibryd. Second, Plaintiff’s counsel should have been allowed to “actively participate” in the hearing. Third, the committee “selectively applied the formal rules of evidence to [Plaintiff]’s detriment.” Finally, the committee denied Plaintiff the opportunity to cross-examine Jane on the effects of the antidepressant. The court held that “[t]he Committee reached a significant finding based on nothing more than speculation.”