Doe v. Univ. of S. Cal.

Decision Date05 April 2016
Docket NumberB262917
Citation200 Cal.Rptr.3d 851,246 Cal.App.4th 221
CourtCalifornia Court of Appeals Court of Appeals
Parties John DOE, Plaintiff and Appellant, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant.

Scheper Kim & Harris, David C. Scheper, Marc S. Harrisand Amos A. Lowder, Los Angeles, for Plaintiff and Appellant.

Paul Hastings, J. Al Latham Jr., and Felicia A. Davis, Los Angeles, for Defendant and Appellant.



University of Southern California (USC) found that student "John Doe"1 violated USC's student conduct code as a result of his participation in a group sexual encounter at a fraternity party. Another student, "Jane," alleged she had been sexually assaulted by a group of men at the party. She reported that her sexual contact with John was consensual, but certain contact with the other men was not. USC's office of Student Judicial Affairs and Community Standards (SJACS) investigated Jane's allegation and found that John violated nine sections of the student conduct code, including the section prohibiting sexual assault. John appealed to USC's Student Behavior Appeals Panel (Appeals Panel), which found that there was insufficient evidence of any sexual assault. The Appeals Panel nonetheless held that John violated two sections of the student conduct code: He "encouraged or permitted" other students to slap Jane on the buttocks during the sexual activity, which the parties agree was not consensual, in violation of Student Conduct Code section 11.44C (section 11.44C), and he endangered Jane by leaving her alone in the bedroom when the involved parties dispersed in violation of Student Conduct Code section 11.32 (section 11.32).

John petitioned for a writ of mandate in the superior court, arguing that he was not afforded a fair hearing and that there was insufficient evidence to support the Appeals Panel's finding that he violated the Student Conduct Code. The court rejected John's fair hearing challenge. It also held that there was substantial evidence to support the Appeals Panel's finding that John violated section 11.44C by encouraging and permitting the other students' behavior, but that there was not sufficient evidence to support the finding that John violated section 11.32 by endangering Jane.

John appeals on both procedural and substantive grounds. USC cross-appeals the trial court's ruling granting John's petition as to section 11.32.

John argues that he was denied a fair hearing. We agree. Although SJACS gave John a list of Student Conduct Code sections he allegedly violated, SJACS did not provide John with any notice of the factual basis for these charges. The SJACS investigation and report focused on alleged sexual assault and whether Jane consented to sexual contact. The Appeals Panel, on the other hand, suspended John for encouraging other students to slap Jane and for endangering Jane after all sexual contact had ended. Because John never received notice of the factual basis of the allegations and the SJACS investigation focused on Jane's consent to sexual activity, John was not afforded an adequate opportunity to defend his actions relating to the slaps or leaving the bedroom. USC therefore failed to provide John fair notice of the allegations that resulted in suspension, or an adequate hearing on those allegations.

John also argues there was insufficient evidence to support the Appeals Panel's finding that he violated section 11.44C. USC argues on cross-appeal that the Appeals Panel's finding that John violated section 11.32 should be reinstated; John argues there is insufficient evidence of this violation as well. We agree with John that the evidence does not support the Appeals Panel's findings as to either violation. There is no substantial evidence that John encouraged or permitted other students to slap Jane on the buttocks in violation of section 11.44C, because the evidence does not demonstrate that John knew they would slap Jane nor that John was in a position to prevent them from doing so. There is also no evidence to support a violation of section 11.32, because the Appeals Panel's finding that John endangered Jane by leaving the bedroom contradicts both John's and Jane's recollection of relevant events. The trial court's judgment is therefore affirmed in part and reversed in part.

A. The incident

The following facts are taken from the administrative record. The basic facts are undisputed, although there are some inconsistencies in the details. Relevant factual discrepancies are discussed in the following section relating to the investigation.

Jane, who was a student and athlete at USC, and a group of her friends attended a fraternity party in January 2013 at a large, off-campus house in the hills near Los Angeles. Jane and her friends caught a bus from the fraternity house to the party location. John, a member of the USC football team, was on the same bus. Also attending the party were two male students from an out-of-state university, "Student 1" and "Student 2," who were friends of John's teammate.

At some point in the evening Jane began to dance, and John began dancing with her. John said that he and Student 1 were both dancing with Jane, "sandwiching" her between them. When asked about this, Jane did not remember whether it had occurred.2 After dancing together for a few minutes, John pushed Jane onto a couch and gave her a provocative "lap dance," which John characterized as "flirtatious" and "silly," and Jane characterized as somewhat "uncomfortable" because people were watching. After the dance, John, Jane, and Student 1 went to a bedroom together. John had vaginal intercourse with Jane while Jane performed oral sex on Student 1. During the sexual activity, John and Student 1 made comments to each other about Jane's body. All parties agree that the entirety of this encounter was consensual. Jane returned to her group of friends and told them she had sex with John; she seemed happy and excited about it.

Approximately 45 minutes later, Jane and John returned to the bedroom a second time. There were multiple men in the room, and people were continually entering and exiting the room. Jane could not remember if she had vaginal intercourse with John again. She performed oral sex on John for about 15–30 seconds while lying on her stomach and elbows. As she did this, Jane was either completely undressed or her dress was pulled up over her hips. Someone behind Jane pulled her to her knees, and she felt her vagina being penetrated intermittently with penises and fingers.

At some point during this encounter, the other men present in the room—not including John—exceeded the scope of Jane's consent. One man began getting rough and hurting Jane by "forcefully finger[ing]" her. The men were also talking to each other about Jane. Jane recognized the voice of Student 1 saying, "How do you like that?" as she was being penetrated roughly. John was also saying "dirty things" about Jane and making "comments about my body." Jane perceived these comments as degrading and demoralizing. Student 1 slapped Jane hard on the buttocks. Someone else, possibly Student 2, slapped Jane again.

This interaction lasted for one to two minutes. Jane did not say anything to John or the other men, nor did she ask them to stop.3 Jane told interviewers that when the men "got rough" she thought she might cry; despite trying not to, she did begin to cry. John said out loud, "Is she crying?" and "I can't believe she's crying." Jane perceived his statements as mocking or ridiculing rather than compassionate.

All physical contact ceased "immediately" or "instantly" upon John's observation that Jane was upset and crying. John pulled away from Jane and according to Jane he "jumped, like not jumped up, but sped off the bed." Once John got up, John and the other men dressed and left the room within 20 seconds. John estimated that the entire second encounter in the bedroom lasted five minutes or less. Jane's friend witnessed Jane emerge from the bedroom; Jane was crying and clearly upset.

After the students returned to campus, John approached Jane and apologized for the other men, saying "I don't know why they smacked you." Later, Jane texted to John, "Thanks for a good night. Your friends suck though." A week or two later, Jane approached John at another party and tried to dance with him or talk to him; she thought she might "still have a chance with him." John either ignored Jane or declined to dance with her.

B. The investigation

The incident happened in January 2013. Jane reported it to SJACS in August 2013.4 She told SJACS representatives that in mid-February her athletic coach suggested that she had confidence issues, and therefore recommended that she see an athletics counselor. When the counselor asked Jane if she had ever been sexually assaulted, "it dawned on me and I connected it." She then reported to the counselor that she was assaulted by John and several other men at the party. She told her parents about the incident in July of that year, and reported the incident to the school in August.

The progression of the investigation, as included in the administrative record, is set forth sequentially below. The administrative record contains written reports detailing four interviews with Jane, two interviews with John, and interviews with several additional witnesses.5 The interview reports do not contain recordings or transcripts. The interviews were conducted by USC employees who were a part of SJACS and other USC administrative bodies. The main investigator was Donna Turner, Assistant Director of SJACS, who was present each of Jane's and John's interviews; each interview included a second USC representative as well.

Turner and La Shonda Blunt Coleman, who is identified as the Director of the Center for Women and Men, first interviewed Jane on August 30, 2013. Jane reported that her memories of the night were foggy as a result of her intoxication. She said her...

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