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‘Esquire’ Details Egregious Failures of Occidental Sexual Assault Case

Last summer, FIRE reported on a stunning case in which Occidental College in California expelled a student—identifying himself only as “John Doe”—for an alleged sexual assault despite significant exculpatory evidence. Many factors contributed to the unfairness of John’s hearing, and Richard Dorment provides a thorough account of the case in an article for Esquire published Wednesday. It is an absolute must-read and highlights a number of problems that exist not just at Occidental, but at colleges and universities across the country.

Los Angeles Police Department detectives and the deputy district attorney assessing the case decided not to charge John with a crime because text messages and witness testimony told a story of two very drunk but “willing participants exercising bad judgment.” Dorment relays how Mark Hathaway, John’s lawyer, summed up the evidence cited in the report prepared by Public Interest Investigations, an agency Occidental hired to interview ten witnesses and look at text messages sent between John and his accuser, Jane Doe:

It would be difficult to imagine a better documented case of consensual sex than this case, where the female student initiates the sexual contact, asks for a condom in writing, tells a friend she is going to have sex in writing, asks for a condom again when she gets to the room, tells friends she is “fine” when she is having sex, willingly performs consensual oral sex, is interrupted by a roommate while having sexual intercourse and continues having intercourse, and then texts smiley faces to friends right after having sexual intercourse.

Dorment spoke with the investigating officer, who cited the same evidence in explaining her conclusion that John hadn’t committed a crime. She noted another factor that further complicated the case: “If he's intoxicated, then that kind of falls under the same category: Was he able to give consent?”

It isn’t the first time this question has been asked. In the context of a sexual assault case at Duke University, Duke Dean of Students Sue Wasiolek was asked what should happen in the case of two students who had sex while they were both, of their own volition, drunk enough to be incapacitated. Wasiolek said, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” (Evidence in the Occidental case suggests that while both students were drunk, neither was incapacitated. Since witness testimony suggests their states of intoxication were comparable, though, the double standard exists either way.)

Marilou Mirkovich, the single external adjudicator that Occidental chose to decide the case, apparently adopted the same view as Wasiolek, finding John guilty despite testimony that Jane took the lead in several stages of sexual contact (even purposefully sneaking out of her own room to join John in his, as detailed in the report). According to Mirkovich, Jane “was not aware of the consequences of her action and she did not have the capacity to appreciate the nature and quality of the act.” She was, therefore, unable to consent, and John’s drunkenness did not excuse his actions.

The Occidental case is in some respects an outlier. More evidence (text messages and third party accounts) was offered in this case than in many campus sexual assault cases. Matters are even worse in cases that rely wholly on the testimony of the accuser and the accused, particularly because colleges have followed the Department of Education’s Office for Civil Rights’ (OCR’s) recommendation to avoid direct cross-examination in campus hearings and have taken things a step further—often allowing only select questions to be asked of witnesses. Dorment writes that this limitation was an element of John’s case, too:

At Occidental, as at many colleges, those accused can submit questions for the accuser (and vice versa) to the hearing coordinator, who then has the discretion to choose which questions he or she will ask. John says that of the thirty-eight questions he submitted to his hearing's coordinator, the ones he most wanted the coordinator to ask—like how Jane could remember performing oral sex on John but not remember having intercourse, or how she could remember John telling her, while they were having intercourse, that his roommate had just walked in on them yet not actually remember having intercourse—were never asked, and nobody bothered to tell him why.

And Dorment explains the origin of colleges chipping away at what the Supreme Court has called the “greatest legal engine ever invented for the discovery of truth”:

Critics of the current [campus] system believe that without meaningful scrutiny through cross-examination, there is no way to achieve a faithful verdict. "Sexual assault advocates will argue," [Harvard Law School professor Nancy] Gertner wrote in The American Prospect, "it will be traumatic for the [accuser] to confront [the accused], even if only through her representatives rather than directly. It will be traumatic for the [accuser] to be asked to repeat her story over again… . These arguments, however, assume the outcome—that the [accuser's] account is true—without giving the accused an opportunity to meaningfully test it."

Speaking with Dorment, FIRE’s Joe Cohn explained how this theory is counterproductively keeping cases from law enforcement’s eyes and ears:

"It should surprise no one that students are choosing to go to colleges" before criminal authorities, says [Cohn]. "Complainants are being told by well-intentioned victims' advocates that law enforcement doesn't really have an interest in doing this for you, and you'll be put under intense scrutiny and they'll cross-examine you and they won't believe you. On campus, there's a lower standard of evidence, and you'll get a much easier outcome with much less scrutiny." In a Senate roundtable on sexual assault last year, Alexandra Brodsky, a prominent sexual-assault activist and herself a sexual-assault survivor, confirmed as much: "When I reported violence to my school, five, six years ago now, I was explicitly told not to go to the police—that it wouldn't be worth it and would be emotionally draining… . I know I would never have come forward if I had been forced into that option."

Because his case was initially brought to the police, John also faced the dilemma of whether he should risk the consequences of speaking up in his own defense during campus proceedings:

At Occidental, as at many colleges, neither the accused nor the accuser is permitted to have an attorney present during questioning, which campus authorities believe is the best way to keep bickering and blowhards out of what's supposed to be a private, speedy deliberation. However, any testimony given to the private investigators can be considered fair game in criminal investigations, and because of the LAPD inquiry, John's attorney advised him to decline to be interviewed by campus investigators.

John not only couldn’t hire an attorney to participate during questioning, he also was starkly limited in his choice of advisors. He recalls:

"I'm at a new place, and I don't know any of the staff. My lawyer pulled up a list of people with Title IX training, because they were the only ones who could serve as advisors. I just kind of went down the list. Most of the people I asked said no." (Five Occidental staffers declined to be his advisor.) "Eventually I found a nice lady who worked in dining services to sit with me. She'd previously served on a panel, and she said my chances of winning were extremely good."

To sum up: Occidental employed a double-standard with respect to the parties’ mutual intoxication, rejected evidence of consent that stands among the clearest that could be expected in a campus sexual misconduct case (other than cases in which the accuser recanted), declined to ask key questions of the accuser, and left John to be advised by someone from dining services.

A heightened standard of proof could have been John’s most important due process protection, but in accordance with OCR’s April 2011 “Dear Colleague” letter, Occidental requires fact-finders to use the “preponderance of the evidence” standard of proof—in other words, they must find the accused guilty if they are 50.01 percent sure that he or she is guilty. Risk management lawyer Brett Sokolow defended this standard by saying that it’s the one used in civil rights cases: “Colleges aren't really addressing rape. They're addressing sexual violence as a civil-rights violation and as a form of discrimination, and their definitions are much broader.”

But when students get expelled, it doesn’t say “discriminator” on their transcript. Dorment reports Jane’s lawyers’ statement that “Ms. Jane Doe was raped by” John. And just before his acceptance to a new college was rescinded, the dean reportedly referred to an anonymous tip he received and asked John, “Have you been expelled from Occidental for sexual assault?” (emphasis added).

Discrimination is a serious issue, but it is disingenuous to say that what’s at stake here isn’t exponentially greater.

In 2013, Occidental President Jonathan Veitch made a public commitment to “make Oxy a national leader” on the issue of sexual assault. This is not the way to do it.

There is much more in Dorment’s compelling, important piece. Read it in full in Esquire.

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