John Doe v. Occidental Coll.

• Decision Date: 27 August 2019
• Docket Number: B284707
• Citation: 40 Cal.App.5th 208,252 Cal.Rptr.3d 646
• Court: California Court of Appeals Court of Appeals
• Parties: John DOE, Plaintiff and Appellant, v. OCCIDENTAL COLLEGE, Defendant and Respondent.

40 Cal.App.5th 208

252 Cal.Rptr.3d 646

John DOE, Plaintiff and Appellant,

v.OCCIDENTAL COLLEGE, Defendant and Respondent.

B284707

Court of Appeal, Second District, Division 7, California.

Filed August 27, 2019

Werksman Jackson Hathaway & Quinn, Hathaway Parker, Mark M. Hathaway, Los Angeles and Jenna E. Parker, Los Angeles, for Plaintiff and Appellant.

Cynthia P. Garrett, for Foundation for Individual Rights in Education as Amicus Curiae on behalf of Plaintiff and Appellant.

Epstein Becker & Green, Jonathan M. Brenner, Los Angeles and Susan Graham, for Defendant and Respondent.

SEGAL, J.

INTRODUCTION

Occidental College expelled John Doe for violating its sexual misconduct policy after he sexually assaulted Jane Doe. An external adjudicator found Jane was incapacitated within the meaning of the policy because she was intoxicated and unable to make "an informed and rational decision to engage in sexual activity." The adjudicator found John was also intoxicated; in fact, so intoxicated he did not know Jane was incapacitated. Under Occidental's policy, however, John's intoxication did not diminish his responsibility to obtain Jane's consent, and John violated the policy because he should have known Jane was incapacitated. The adjudicator concluded a sober person in John's position should have known Jane was too drunk to consent.¹

After unsuccessfully appealing within the college, John filed a petition for writ of administrative mandate in the trial court. The trial court denied the petition and entered judgment in favor of Occidental. John argues on appeal that he did not have a fair disciplinary hearing and that the evidence did not support the adjudicator's findings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Occidental's Sexual Misconduct Policy

Two weeks before their sexual encounter, John and Jane both attended freshman orientation sessions on sexual misconduct and Occidental's sexual misconduct policy. Occidental's policy prohibits sexual assault, which it defines as "[h]aving or attempting to have sexual intercourse with another individual ... [b]y force or threat of force," "[w]ithout effective consent," or "[w]here [the other] individual is incapacitated." The policy also prohibits non-consensual sexual contact, which it defines as "[h]aving sexual contact with another individual ... [b]y force or threat of force, "[w]ithout effective consent," or "[w]here that individual is incapacitated."

The policy defines "incapacitation" as "a state where 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. An individual is incapacitated, and therefore unable to give consent, if s/he is asleep, unconscious, or otherwise unaware that sexual activity is occurring."

The policy discusses the relationship between alcohol use and incapacitation. The language we italicize was central to the adjudicator's decision here: "Incapacitation may result from the use of alcohol and/or drugs. Consumption of alcohol or other drugs alone is insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impacts an individual's: [¶] decision-making ability; [¶] awareness of consequences; [¶] ability to make informed judgments; or [¶] capacity to appreciate the nature and the quality of the act. [¶] Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known, that the Complainant was incapacitated. [¶] ... In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person's decision-making capacity, awareness of the consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person's level of intoxication. If there is any doubt as to the level or extent of the other individual's intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity. [¶] Being intoxicated or impaired by drugs or alcohol ... does not diminish one's responsibility to obtain consent. "

B. Saturday Night and Sunday Morning, September 7-8, 2013

Jane and John knew each other, but not well. They lived on different floors of the same dormitory and had one class together. John was 18, and Jane was one month shy of 18. Multiple witnesses told Occidental's investigators or testified at the disciplinary hearing that, during the hours before John and Jane had sexual intercourse, Jane drank large quantities of vodka and became extremely intoxicated. The investigation report, witness interview summaries, and testimony at the hearing described the following events.

1. 9:15 p.m.-11:30 p.m.: Jane Gets Drunk

Jane began drinking alcohol in her dormmate Liam's room at approximately 9:15 Saturday evening. Jane drank orange juice mixed with vodka and several shots of straight vodka. Jane's friend Angela said Jane was "drinking heavily." Other witnesses described Jane as "a little bit drunk, but still in control," and "buzzed." Jane described herself as "tipsy."

At 9:45 p.m. Jane and others decided to go to a fraternity party. Jane went to her room to change clothes. Jane's roommate Genevieve recalled Jane was drinking orange juice mixed with alcohol, but was "pretty lucid" and "talking and walking normally."

After leaving the dormitory, Jane became "more and more drunk." She could not walk straight. She stumbled and scraped her knee but could not feel it. She testified, "[T]hat's how drunk I was." Angela testified, "[I]t seemed like [Jane] became more ... out of touch with ... what was going on with her ...." Other witnesses observed Jane "could not walk a straight line and ... was ‘getting loud.’ "

When Genevieve encountered Jane at 11:30 p.m., Jane was "visibly more intoxicated" than she had been earlier in the evening. She was stumbling and spoke in a "high-pitched" voice. Genevieve believed Jane's "decision-making capacity" was "hazy." She testified: "I wouldn't trust Jane to make sound ... decisions that she would make while sober when I saw her then," and even "[m]ore so later [that evening]."

Jane decided to return to the dormitory. She told her friends, "I can't walk anymore. I'm just going to go back to [the dormitory]." According to Chloe, who met Jane at orientation, Jane had obviously been drinking and "was not able to walk very well." Angela told Jamison, another friend of Jane, they "needed ‘to take care of Jane.’ " Angela later told investigators: "During freshmen orientation ... [we] were told [we] were supposed to watch out for ... friends when they were partying. I know it sounds corny ... but I was trying to be a good person and be there for Jane as much as I could."

2. 7:00 p.m.-11:00 p.m.: John Gets Drunk

Liam saw "a lot of alcohol," including vodka, rum, and beer in John's room after 7:00 p.m. John was " ‘exuberant,’ as if he had been drinking ‘a good amount.’ " He had a bottle of alcohol in his hand and was dancing around the room. Liam said John was "not sloppy but a shot or two past tipsy." Another resident of the dormitory, Aidan, also stopped by John's room at 7:00 p.m. John's friends told Aidan that John was "really drunk." Aidan described John as "[k]ind of clumsy" and having "slow speech."

At 11:00 p.m. John's roommate, Gavin, was getting ready to leave when John walked into the room. John was stumbling, slurring his words, and speaking in a loud voice. After observing John for an hour, Gavin "decided not to go out, so that he could ‘keep an eye’ on John." Aidan, who was also in John's room at the time, described John's "level of intoxication" as "a ‘shit show.’ " John "was slurring his words [and] stumbl[ing] ...." Aidan estimated "that on a 0 to 10 scale, with 10 being inebriated to the point of not being able to function, John was ‘maybe a 7.’ "

3. 11:30 p.m.: Jane Goes to John's Room

Jane returned to her room on the third floor of the dormitory at 11:30 p.m., but did not stay there. She was "bored," "wired with energy," and "drunk." She went to the second floor "because there were usually people there." John's roommate Gavin saw Jane leaning against the hallway wall and heard her slurring her words. Jane followed Gavin to John's room, where she embraced John and started dancing with him. It seemed "kind of intense," so Gavin left.

Angela and Jamison lost track of Jane and were worried. Angela called Jane, who said she was in John's room. Angela and Jamison found Jane and John dancing and kissing and drinking vodka from a bottle. Angela estimated Jane drank three or four more shots. Jane was stumbling and leaning on things to support herself. Later, Jane and John embraced on John's bed and were "getting really physical." Angela was concerned that Jane "was not fully aware of what she was doing" and that Jane "did not seem to know where she was or what was going to happen next." Angela "wasn't sure how [Jane] would feel about" kissing John. Angela told Jane she should stop drinking and tried repeatedly to take away the vodka bottle. Angela believed John heard her: "Yeah. I'm sure he could have ... heard [me tell Jane to stop drinking]." John appeared "very intoxicated" and "really drunk." John told Jamison he had been drinking since 1:00 p.m.

At midnight, Angela and Jamison took Jane to her room. By then, Jane was "super drunk" and "incoherent." Angela put Jane in bed, closed the door, and left. Jamison waited outside Jane's room briefly before he also left.

4. 12:20 a.m. -12:45 a.m.: Jane and John Exchange Text Messages

At 12:20 a.m. Jane sent a text message to her best friend from home saying, "I'm wasted." Between 12:31 and 12:45 a.m., Jane and John exchanged...