LOS ANGELES, June 4, 2014—Under pressure from the federal government to take action on sexual assault, and in the wake of a multi-plaintiff lawsuit from attorney Gloria Allred last year, Occidental College has found a student “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex. Accused student John Doe has filed a pseudonymous lawsuit against Occidental College to invalidate its finding and contacted the Foundation for Individual Rights in Education (FIRE) for help.
“Disregard for due process on campus, prompted by mandates from the federal Department of Education’s Office for Civil Rights, has predictably led to unjust results,” said FIRE Senior Vice President Robert Shibley. “Occidental has now provided another stark demonstration of how the abandonment of fair procedures in college tribunals is failing students by producing outcomes whose accuracy cannot be trusted.”
The incident between Doe and his accuser, both first-year students at Occidental, occurred during the early morning hours of Sunday, September 8, 2013. After being counseled by Occidental employees, Doe’s accuser filed sexual assault complaints with Occidental as well as the Los Angeles Police Department (LAPD) on September 16. Notable among those employees was Professor Danielle Dirks, who, according to the accuser, said that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’”
LAPD Detective Michelle Gomez interviewed the parties and witnesses. In a charge evaluation worksheet dated November 5, Deputy District Attorney Alison A.W. Meyers declined to prosecute, writing, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment …. It would be reasonable for [Doe] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” This decision ended police involvement in the case.
Meanwhile, Occidental pursued its own investigation by hiring the firm of Public Interest Investigations, which produced an 82-page report about the incident. Among other evidence, the report examined text messages between Doe and his accuser leading up to the sexual encounter. In the messages, the accuser asked Doe, “do you have a condom,” texted another friend “I’mgoingtohave sex now” [sic], and, in an exchange spanning 24 minutes, coordinated with Doe to sneak out of her dorm and proceed to Doe’s dorm to have sex with him.
Following the investigation, Occidental hired attorney Marilou Mirkovich to serve as an “external adjudicator” empowered to issue a judgment in the case. After a hearing in which Doe was unable to meaningfully cross-examine his accuser, the adjudicator found that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse.” Yet the adjudicator also found that the accuser was “incapacitated” and therefore her consent was invalid.
In making this determination, the adjudicator did not correctly apply Occidental’s written incapacitation standard: an individual “cannot make an informed and rational decision to engage in sexual activity because s/he lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless.” This definition of incapacitation cannot be reconciled with the text messages between Doe and his accuser, which make clear that the accuser had conscious knowledge of what she was doing. Instead, Mirkovich found that the accuser was incapacitated because her judgment was impaired due to alcohol consumption and because she could not recall the act of sexual intercourse on the night in question, although she remembered another sexual act that Doe himself did not recall.
Using Occidental’s “preponderance of evidence” standard of proof (a mere 50.01% certainty), the adjudicator concluded that Doe was “responsible” for sexual assault. Doe was expelled.
After Occidental denied his appeal, Doe filed a lawsuit against the college in state court and was granted an Order of Stay pending further legal review. Doe also approached FIRE for help. On April 10, 2014, FIRE wrote Occidental President Jonathan Veitch, noting that “the weakened definition of incapacitation applied by Occidental in Doe’s case is so faulty and unfair that, using the same applied definition and given the same evidence, Doe’s accuser would be guilty of sexually assaulting Doe.”
FIRE asked Occidental to reconsider its finding, pointing out that “[t]he fact that the applied definition of incapacitation would make both parties guilty of sexually assaulting one another brings into stark relief the fundamental unfairness and lack of substantive due process present in Occidental’s actions against Doe.” Occidental’s lawyers informed FIRE to expect a response by May 16, but FIRE has received no response.
“Occidental took many of the steps towards dismantling due process that the federal government and lawmakers have been suggesting or even requiring—a lone adjudicator, the low preponderance of evidence standard, a restriction on cross-examination. Now we’re seeing the result,” said FIRE’s Shibley. “By classifying sex while drunk as rape and stripping students of due process protections, Occidental and the federal government have rendered vast numbers of students unwitting rapists—and ensured that being accused is nearly the same thing as being found guilty.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America are described at thefire.org.
Robert Shibley, Senior Vice President, FIRE: 215-717-3473; firstname.lastname@example.org