John challenged the Panel's decision in a petition for writ of administrative mandate. ( Code Civ. Proc.,
Westmont's investigation and adjudication of Jane's accusation was fatally flawed. Westmont did not provide John with a fair hearing; indeed, it did not comply with its own policies and procedures. The Panel did not hear testimony from critical witnesses, yet relied on these witnesses' prior statements to corroborate Jane's account or to impeach John's credibility. The Panel withheld material evidence from John, which its policies required it to
FACTUAL AND PROCEDURAL HISTORY
Westmont's sexual assault policies and procedures
Westmont is a small private college located in Montecito. The college's sexual assault policies and procedures are included in the student handbook. The handbook defines "Sexual Assault-Category I" as "engaging in sexual intercourse with any person without that person's consent." It defines "Sexual Assault-Category II" as "the act of making sexual contact with the intimate body part of another person without that person's consent."
When Westmont receives a report of a violation of its sexual assault policy, the Associate Dean for Residence Life begins a preliminary investigation. The dean meets separately with the alleged victim and accused student, explains the charge(s) and investigation process, and obtains a written statement and list of witnesses from each party. If the dean determines that the evidence warrants further proceedings, all relevant information is forwarded to the Panel for adjudication.
Members of the Panel include the dean who conducted the investigation and two additional staff members. During the adjudication process, the alleged victim and accused student each has the right to provide witnesses and information about the case, the right to an advisor, and the right to legal counsel. Neither the advisor nor counsel may speak or advocate during the proceedings.
The handbook provides that the parties have the right to confront opposing information. This does not permit them to question witnesses directly, but does allow
All parties and witnesses must be given advance notice of Panel meetings. Students are expected, but not required, to meet with the Panel. The Panel meets first with the alleged victim, then the accused student, then any other witnesses the Panel requests. All witnesses must be available for follow-up questioning. After hearing from the witnesses, the Panel may recall the accused for follow-up questions and to make a final statement. The alleged
At the conclusion of proceedings, the Panel deliberates privately. It weighs all available information and determines, by a majority vote, "whether it is more likely than not that a sexual assault ... occurred." It then determines what sanctions, if any, to impose. The chair of the Panel communicates its decision to the alleged victim and the accused student.
Either party may appeal the Panel's decision to the Vice President for Student Life. The vice president first determines whether the appeal demonstrates procedural errors, the availability of new information, or the imposition of excessive sanctions. If it does not, the vice president summarily denies review. If it does, the vice president reviews the Panel's decision. The vice president then either decides the appeal or refers it back to the Panel for resolution.
Jane's allegations
On February 1, 2016, Jane's mother reported to Westmont that her daughter had been raped at an off-campus party two weeks earlier. The Associate Dean for Resident Life, Stu Cleek, began a preliminary investigation. Jane told Cleek that she went to a party around 10:30 p.m. on January 15. Thirty to 40 people were there, including her roommates, M.H. and M.W. Jane believed M.H. and M.W. were intoxicated. Jane said she did not drink alcohol that night.
John was also at the party. Jane told Cleek that she went out to the backyard around 10:45 p.m. and saw John sitting with a group of people. John had a beer and one or two small jars of marijuana. Jane went back inside.
When Jane rejoined the group around 11:00 or 11:15 p.m., John packed a pipe with marijuana and passed it around the group. John said that since it was his marijuana, Jane had to kiss him each time she took a hit. Jane thought John was joking and did not kiss him. She took seven or eight hits off the pipe, and felt "very giggly and super sleepy."
Once everyone else went inside, John asked Jane if she wanted to go for a walk and continue smoking marijuana. The two left the backyard between 11:30 and 11:40 p.m. After they had passed by one house, John grabbed Jane
John said he wanted to have sex. When they had walked past two or three more houses, John grabbed at Jane's pants.
Jane told Cleek that John then turned her around, pulled down her pants, and told her to get on her knees. When she did, John put his penis inside her vagina. Jane estimated the penetration lasted 45 seconds to one minute. Afterward, John told Jane not to tell anyone what happened. "If anyone asks, deny, deny, deny everything."
As they walked back to the party, John told Jane to enter the house through a different entrance than he used. He went inside through the back gate, Jane through the front door. The two did not speak the rest of the night.
Once inside, Jane told M.H. that she had had sex with John. Jane asked M.H. not to tell M.W. Jane said she knew that John and M.W. had "hooked up" previously and that M.W. "continued to have feelings" for him.
Jane left the party and returned to Westmont between 12:50 and 1:00 a.m. M.H. and M.W. were in her room when she got home. M.W. was upset and asked Jane about the incident with John. Jane said, "I am so sorry. I don't know what I was thinking. I told him 'no.' I didn't want to do it."
John's response
John denied Jane's allegations. He said he never had sex with Jane and was never alone with her. He did not have her phone number, and had no contact with her over social media.
John said he arrived at the January 15 party around 9:45 p.m. with his friends C.B. and M.M. About 30 other people, including his friends J.E. and N.K., were already there. John did not drink alcohol that evening and did not smoke marijuana.
After 20 or 30 minutes in the backyard, John went inside with M.M. to use the bathroom. He then returned to the backyard. M.H., M.W., and Jane went back in the house. John did not see Jane again that night.
M.W. later returned to the backyard and asked John if he had had sex with Jane. He laughed and said he had not. M.W. said Jane was telling people otherwise. John was annoyed that Jane would tell people that they had sex. K.S. and M.B. were nearby during John's interaction with M.W. J.E. and M.M. may have also been present.
Later, M.H. asked John if he had sex with Jane. He replied, "[T]hat's not fucking funny, stop saying that." M.W. sent a text message asking the same thing, which John again denied. John left the party around 12:15 a.m.
Cleek asked John why Jane would spread rumors about sex that had not occurred. John said he believed it was because he ignored a text message Jane sent asking him to go to the beach to "hook up." John said he showed the message to J.E. before he deleted it.
Witness statements
Both Jane and John identified K.B., M.H., and M.W. as witnesses. Jane also identified another friend she told about the incident the day after the party, B.R. John identified J.E., M.B., M.M., and K.S.
K.B. told Cleek she was asleep when M.H. and M.W. arrived home after the party. M.H. said that Jane told her that she kissed and had sex with John. When Jane arrived home, she "started blaming what happened on her having mental health issues." Jane also said she had been drinking. Later, M.H. and M.W. told K.B. that Jane commented that "the sex [with John] wasn't that good." K.B. thought Jane's "behavior ha[d] been 'off' " in the weeks prior to the party, and that she had "engaged in a lot of lying[,] even in little things [that] don't matter."
When Cleek asked, M.H. did not recall confronting John at the party about having sex with Jane. She told Cleek that Jane is a "compulsive liar" and that she "wouldn't believe anything she says." M.H. denied drinking at the party.
M.H. told Cleek that she and M.W. told K.B. what happened after the party. When Jane got home, she apologized and said, "You know I make bad decisions when I'm drunk." M.H. later heard Jane tell M.W., "[I]f it makes you feel better, he wasn't any good." M.H. believed Jane had consensual sex with John.
M.W. told Cleek she "was one of [Jane's] best friends prior to the alleged incident." M.W. arrived at the party around 9:45 p.m. and spent most of the night inside with M.H. After Jane arrived around 10:30 p.m., she went to the backyard with M.H. Jane and John were both smoking marijuana.
M.W. went inside with M.H. Fifteen to 30 minutes later, Jane came in and told M.H. she had sex with John. M.H. told M.W. M.W. asked John, and he laughed and said he did not have sex with Jane. M.W. did not know who to believe. She was upset and left the party with M.H. Neither she nor M.H. consumed alcohol that evening.
When they got home, M.H. and M.W. told K.B. what had happened. Jane arrived later and apologized to M.W. She said that she "acts on impulse when she is drunk[ ] and that she had really been having a hard time with depression and anxiety and her medications." M.H. yelled at Jane for blaming her behavior on her mental health
A few days later, Jane apologized again to M.W. for having sex with John. She told M.W. she "had sex in a front yard down the street" with John when they went to smoke marijuana. Jane did not mention that she asked John to stop or that she did not want to have sex with him. If she had, M.W. would have responded differently.
B.R. told Cleek she is Jane's "really close friend." She was not at the party, but talked to Jane the next day. Jane told B.R. that she and John were
B.R. said that Jane later told her that she had been raped. It was only after M.W. told her to move out that Jane said that. B.R. was surprised by Jane's allegation. She noted that Jane originally said that she was drunk the night of the alleged incident, but later said she clearly remembered that she was raped. B.R. spoke with M.H., who said Jane had "boast[ed] about how she had sex with [John]" during the party. M.W. and M.H. told B.R. they did not believe Jane and John had sex.
J.E. is John's roommate and "very good friend." J.E. told Cleek that he arrived at the party around 10:00 or 10:30 p.m. and was with John in the backyard for the next hour and a half. At some point Jane approached John and then went back inside. John told J.E. that he had received a text message from Jane earlier in the evening inviting him to have sex with her, but J.E. did not see it.
J.E. did not hear John mention any sexual interaction with Jane. He did not remember Jane and John being alone together at the party. He did not see either Jane or John consume alcohol or smoke marijuana.
M.B. told Cleek that he is John's "really good friend." He and John were together at the party "pretty much ... the whole time." At one point he saw John back away when Jane tried to kiss him. Later, he heard M.W. ask John if he liked Jane. John said he did not. M.B. did not hear if M.W. asked John if he had sex with Jane. He said no one in their group drank alcohol or smoked marijuana that evening.
M.M. is John's "pretty good friend." M.M. told Cleek he was with John the "entire night of the party." He saw John interact with Jane, M.H., and M.W. for a few minutes in the backyard. He did not recall whether M.W. asked if Jane and John had sex. He said neither he nor John consumed alcohol or smoked marijuana that night.
K.S. told Cleek that she arrived at the party around 10:00 p.m. She was outside with John when Jane approached them "wobbly and unsteady." Jane "appeared to have been drinking by her behavior." She stayed outside for about 10 minutes before she went back into the house. K.S. did not see John with M.B. or M.M. at the party.
Cleek completed his preliminary investigation and determined that the information warranted a student conduct meeting. He compiled all notices, summaries of witness statements and interviews, and other documentary evidence, and provided copies to Jane, John, and his fellow Panel members. The summaries omitted some of Cleek's questions and witnesses' answers. Jane and John were allowed to submit statements that addressed the evidence packages they received.
The Panel then interviewed John. It provided John and his attorney with Jane's written statement and an oral summary of what was said during her interview. John submitted additional documents.
The Panel interviewed B.R., C.B., J.E., M.B., and M.M., and a sixth witness, S.M. Despite John's request, the Panel did not interview K.B., K.S., M.H., or M.W. The Panel recalled Jane twice and John once. During these follow-up sessions, the Panel asked some questions Jane and John had suggested. It also provided them with oral summaries of other witnesses' testimony. After hearing these summaries, John alleged several errors in the witnesses' testimony. He submitted additional documents at the meeting, and later e-mailed several additional points. The Panel did not accept the additional information John e-mailed after the meeting.
The Panel found that a preponderance of the evidence showed that John committed Sexual Assault-Category I when he inserted his finger and penis into Jane's vagina, and Sexual Assault-Category II when he touched Jane's vagina. The Panel based its decision on Jane's account of the incident, which it deemed credible and consistent throughout the proceedings. It also found corroboration for Jane's account: M.H. said Jane told her that she and John engaged in sexual activity. M.H. also told that information to M.W., who said she confronted John about it later at the party.
The Panel concluded that Jane's initial reluctance to refer to the incident with John as "rape" or "sexual assault" did not render her account incredible. Victims often feel shame after an assault, and may even take responsibility for it. And as evidenced by her request to M.H. to not tell M.W. about what had happened, Jane was concerned about how the incident might impact her relationship with M.W.
Moreover, John's witnesses did not corroborate his account of the evening. J.E. was not with John during the entire party. He did not see a text message in which Jane allegedly asked John to "hook up." He said that John only spoke about that message after his meeting with Cleek.
M.M.'s statement that he was with John during the entire party was not believable. K.S. saw both of them at the party, but did not see them together. M.M. was also unaware that M.W. asked John about having sex with Jane while they were at the party, even though they were purportedly together.
Finally, John's denials of having a sexual encounter with Jane were inconsistent. Initially he said he did not want to ruin his relationship with his girlfriend. Later he said he and Jane were never alone.
The Panel suspended John through the end of the spring 2018 semester. John appealed, alleging procedural errors and excessive sanctions. The Vice President for Student Life summarily denied John's appeal.
John challenged the Panel's decision in a petition for writ of administrative mandate. He claimed Westmont did not provide a fair hearing and substantial evidence did not support the Panel's decision.
The trial court granted John's petition, concluding that Westmont denied him a fair hearing. The Panel had access to more information bearing on witness credibility than was provided to John, especially with respect to those witnesses interviewed by Cleek who did not testify. The Panel did not give John the notes recording the Panel's questions and witnesses' responses, impeding his ability to respond to the evidence against him. And John had no ability to question the details of witnesses' testimony, even indirectly.
The trial court did not reach the issue of whether substantial evidence supported the Panel's substantive decision. It ordered the Panel to set aside its decision and vacate the sanctions imposed. It ordered Westmont to conduct a new hearing in which John could "hear the evidence presented against him in
DISCUSSION
Scope and standard of review
If a private college has a procedure for conducting sexual misconduct disciplinary proceedings, an accused student may challenge the outcome of the proceedings in a petition for writ of administrative mandate. ( Doe v. University of Southern California (2016)
Fair hearing standards
A college's procedure for investigating and adjudicating student sexual misconduct allegations is not analogous to a criminal proceeding. ( Doe v. Regents of University of California (2016)
A fair hearing strives to balance three competing interests: The accused student seeks " ' "to avoid unfair or mistaken exclusion from the educational process." ' " ( Doe v. Claremont McKenna College (2018)
These competing interests "must be addressed in light of the nature of a
"[N]o particular form of student disciplinary hearing is required under California law." ( UCSD , supra ,
The college must provide the accused student with the names of witnesses and the facts to which each testifies. ( UCSB , supra , 28 Cal.App.5th at pp. 57-59,
The procedure Westmont employed here violated its own internal policies and denied John the opportunity to fully respond to the evidence against him. First, the
1. Critical witnesses
" 'Oral testimony of witnesses given in the presence of [an adjudicatory body] is valued for its probative worth on the issue of credibility, because such testimony affords the [body] an opportunity to observe the demeanor of witnesses.' [Citation.]" ( USC II , supra ,
Here, the Panel relied on K.S.'s statement to Cleek that she did not see John and M.M. together at the party to refute M.M.'s testimony that he was with John the entire evening. It relied on M.H.'s statement to Cleek that Jane told her of the alleged sexual encounter with John to bolster Jane's testimony that the encounter occurred. It relied on M.W.'s statement to Cleek that she confronted John about the alleged encounter at the party to highlight John's failure to tell her he was never alone with Jane. It also relied on M.W.'s statement to refute M.M.'s testimony, concluding that he would have overheard M.W. confront John if he were with him the entire evening. Why the Panel deemed the nontestifying witnesses more credible than their testifying counterparts-without observing their demeanor-is not clear from the record.
Nor is it clear why the Panel relied on selected portions of the nontestifying witnesses' statements while rejecting or ignoring other portions. For example, despite crediting other portions of their statements, the Panel apparently rejected K.S.'s, M.H.'s, and M.W.'s statements that Jane appeared to have been under the influence of alcohol at the party-statements that
Cleek's dual roles as an investigator and adjudicator compounds our concerns with the Panel's credibility determinations. " '[T]he combination of investigative and adjudicative functions does not, without more,' " deprive a student accused of sexual misconduct of a fair hearing. ( USC II , supra ,
Here, all three Panel members were finders of fact. All three were thus required
We conclude that the Panel deprived John of a fair hearing when it credited certain portions of nontestifying witnesses' statements based solely on Cleek's investigative reports. ( CMC , supra , 25 Cal.App.5th at pp. 1072-1073,
2. Information provided to John
"There is no formal right to discovery in student conduct review hearings." ( UCSD , supra ,
John's information deficit grew as the student conduct meeting progressed. A Westmont staff member took detailed notes that recorded the Panel's questions and witnesses' responses, but the Panel did not provide these to John. Instead, it gave John oral summaries which were significantly less detailed than the recorded notes, restricting his ability to respond to the testimony and propose follow-up questions for Jane and other witnesses.
Fair hearing requirements "do not allow [a college's adjudicatory body] to rely on evidence that has never been revealed to the accused" student when it assesses witness credibility. ( USC I , supra ,
We do not suggest that the Panel was required to record witness testimony verbatim or permit John's presence during the testimony; "there are alternate ways of providing accused students with the opportunity to hear the evidence being presented against them." ( USC I , supra ,
3. Opportunity to question witnesses
A student accused of sexual misconduct is not entitled to directly cross-examine the alleged victim or other witnesses who testify at a sexual misconduct hearing. ( UCSD , supra ,
The Panel denied John that right. First, John could not propose questions for certain critical witnesses relied on by the Panel for its decision because they did not testify at the conduct meeting. (See Allee , supra ,
If Westmont proceeds with a new disciplinary proceeding, it must: (1) allow John to access Cleek's notes, as required by its policies and procedures; (2) provide him with any notes recording the Panel's questions and witnesses' responses during the student conduct meeting; and then (3) either permit him to submit a list of questions for the witnesses ( USC II , supra ,
Conclusion
We are mindful that sexual assaults are prevalent on college campuses, and that many victims are reluctant to report those assaults to college officials. (See, e.g., Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims' Attorneys (2017)
Like our colleagues in Division One, "we do not wish to limit the universe of ideas on how to accomplish" fair hearings to accommodate the competing interests of accused students, victims, and colleges. ( CMC , supra ,
DISPOSITION
The judgment setting aside Westmont's determination and sanctions against John and directing Westmont to conduct further proceedings is affirmed. Cleek shall not be prohibited from acting as an adjudicator so long as John is provided with fair hearing proceedings consistent with the views expressed herein. John Doe shall recover his costs on appeal.
We concur:
GILBERT, P. J.
PERREN, J.
Notes
The parties refer to the individuals involved in this case by pseudonyms. We do the same.
All unlabeled statutory references are to the Code of Civil Procedure.
John told Cleek that he had consumed alcohol and smoked marijuana on other occasions, but not since he arrived at Westmont.