Jane Doe was a student and athlete at USC who attended an off-campus fraternity party in January 2013. John Doe, a member of the USC football team, attended the same party, along with two of his friends from out of state. At some point in the evening, John and Jane danced together and left the dance floor with one of John's friends to go to an upstairs bedroom. In the bedroom, the three engaged in consensual sexual activity and then returned to the party.

Nearly an hour later, Jane and John returned to the bedroom, where several other male party attendees were socializing. John and Jane engaged in consensual sexual activity again. At one point, while Jane was on her stomach and elbows, she felt another individual pull her to her knees and penetrate her from behind. These other men (not John) were talking crudely about Jane and began hurting her with their penetration. One or both of them slapped her buttocks very hard. Jane did not say anything during this one to two minute interaction and did not ask them to stop. John looked at Jane and saw she was crying. He immediately ceased all sexual activity and left the room. The other men left as well. The entire second encounter in the bedroom lasted a total of approximately 5 minutes. Jane later texted John and told him she had a fun time with him but that his "friends suck though." At another party a week or two later she tried to approach John again but he declined.

Seven months later, in August 2013, Jane reported the incident to USC's Office of Student Judicial Affairs and Community Standards (SJACS). She said she was assaulted by John and the other men. SJACS conducted interviews starting in August 2013. In the interview, Jane reported she did not consent to sexual activity with anyone other than John during the second encounter. She said John and the other men were making vulgar comments about her, but she did not mention being slapped on the buttocks. She confirmed that John ceased all sexual activity when he saw she was crying.

On September 4, 2013, SJACS sent John a letter that he was accused of violating USC's Student Conduct Code (the "Code"). The letter listed the date of the incident and the location as an off-campus party. It included no factual allegations. On September 16, Jane was interviewed a second time and again did not mention being slapped on the buttocks. The following day the interviewer met John for the first time. He said all of his contact with Jane was consensual. He told the interviewer that another individual slapped Jane's buttocks very hard and so quickly that John could not say anything. He said he did not put his hands on her violently in any way.

During Jane's third interview, she agreed that all activity with John was consensual. Then she mentioned being slapped for the first time. She confirmed that all sexual contact with John stopped when he saw she was crying. She said she did not know the men who slapped her. Jane said no one told the men to slap her.

After interviews with Jane and John and other witnesses, SJACS generated a Summary Review on October 29, 2013. This report concluded that John violated nine sections of the Code. They concluded that it was credible to believe Jane's assertion that John encouraged the other men to penetrate and assault Jane during the second encounter. The report concluded that John participated in concert with the other men and allowed and encouraged a group assault on Jane. John was suspended for two years.

John appealed the decision to the Student Behavior Appeals Panel (the "Panel"). His appeal letter noted the inconsistencies in the evidence, argued there was bias in the investigation (Jane was provided with all witness statements and had several interviews whereas John did not receive other witness statements and had fewer interviews). Jane submitted a letter in response saying that she felt unsafe on campus with John there and feels she was raped. She accused USC of not enforcing its Title IX responsibilities. The Panel decided the procedural process was fair and an evidentiary hearing was not required. However, the Panel found the evidence did not support a finding that John participated in or encouraged a sexual assault. They did find that John encouraged or permitted the slaps and endangered Jane by leaving the room before making sure she was okay. The Panel overturned the decision with respect to seven of the nine violations and reduced the suspension to one year. They found John violated Code section 11.44C, which prohibits encouraging or permitting others to engage in misconduct, and section 11.32, which prohibits endangering the health and safety of others.

John challenged the Panel's findings in a writ of mandate in superior court. He claimed he was denied an adversarial proceeding in which he could challenge the evidence against him. He also said he did not receive adequate notice, since the Panel's conclusions were based on entirely different theories than the SJACS's decision. The trial court ultimately held the proceedings were fair because he got to tell his side of the story in his two interviews and had a right to request materials collected in the investigation. They also held that the Panel was not justified in finding John violated section 11.32 because both John and Jane stated they left the room together and she was not left alone with the other men. Both John and USC appealed.

The matter for decision on appeal was whether there was a fair trial and whether there was any prejudicial abuse of discretion. John claims he did not receive a fair process because he did not receive adequate notice of the charges, because the Panel's decision was based on an entirely different theory than the SJACS's decision. He also argued he did not have a chance to test and rebut the evidence or cross-examine witnesses.

While USC's Guidebook states that it provides written notice specifying the nature of the allegation, John did not receive any information about what activity formed the basis for his violations. He was never provided an opportunity to respond to a theory that the other individuals' slaps could result in John's suspension. He focused only on the consensual nature of the interaction because he thought that was the concern. The slaps were ultimately what provided the basis for John's suspension, yet Jane did not mention the slaps in either of her first two interviews and so they were not the basis of her complaint. The court found that basing John's disciplinary action on charges that were not officially communicated to John was "standardless."

John also did not receive a fair hearing. While Jane was provided copies of SJACS's notes regarding other witnesses, John did not receive any such information. The court acknowledged that a purely adversarial hearing in this circumstance might not be appropriate, but John deserved more than he was provided by USC in this case. The decision makers relied on evidence that was never revealed to John. That, combined with the fact that the Appeals Panel decided the case on a different theory than the SJACS and John not having any opportunity to rebut evidence, led the court to conclude that John did not receive a fair hearing.

With respect to the specific charges, the court ruled that there was insufficient evidence to conclude that John encouraged or permitted the other men to slap Jane. Jane herself stated that John did not tell the others to slap her. The court also held that John did not endanger Jane's health or safety by leaving the room. The evidence showed all parties left the room once Jane became upset. John's petition for writ of mandate should have been granted.

Note:

This case gives great insight into how a court might analyze a school's handling of student-on-student assault outside of a Title IX framework. The lessons that can be learned here include treating the accused and accuser equally in terms of access to information about the charges, basing final determinations upon the original charges, and establishing a consistent practice in terms of investigation, documentation, and analysis.

Doe v. University of Southern California, (2016) 246 Cal.App.4th 221.