By Ross Todd, from The Recorder

SAN FRANCISCO — Wading into the fraught issue of sex crimes on college campuses, a state appeals court has reversed the suspension of a male USC student accused of participating in a group sexual assault against a female student.

The Second District Court of Appeal held that the male student, a USC football player referred to only as John Doe, wasn’t given sufficient notice of the allegations against him or a fair hearing by the school before being suspended.

The ruling highlights the difficult task universities have in balancing accused students’ due process rights with the concerns of victims and federal officials who have urged schools to adopt procedures to keep campuses safe.

Justice Audrey Collins acknowledged in Tuesday’s unanimous panel decision “that universities need adequate tools to address the very serious and sensitive problem of sexual assault on campus.” Still she wrote that “it is not too heavy a burden to require that students facing disciplinary action be informed of the factual basis for the charges against them.”

The male student’s attorney, Marc Harris of Scheper Kim & Harris, said that his client is “extremely gratified by the decision.” The white-collar defense boutique was brought on after an internal USC appellate process resulted in the student’s one-year suspension, Harris said.

“All the issues that we raised in the court of appeal are issues that we brought up with USC” before turning to the state courts, he said. “This has been a long, painful and damaging path that John has had to take,” he said. He declined to say whether his client will seek to return to USC.

J. Al Latham Jr. of Paul Hastings represented USC at the appellate court. The university has turned to Gibson, Dunn & Crutcher’s Theodore Boutrous Jr. to appeal the decision to the California Supreme Court.

Reached on Tuesday, Boutrous said that the ruling “will harm universities and students throughout the state” and that it runs counter to guidance that the U.S. Department of Education Office for Civil Rights has provided schools about how to handle sexual assault cases. “USC’s disciplinary process is fair, consistent with federal and California law, and protects the rights of all students,” he said.

The decision lays out conflicting versions of the events that led to male student’s suspension. But both he and the woman involved, referred to in the decision as Jane Doe, agree on the following account: At an off-campus fraternity party in January 2013, John Doe and a friend of one of his teammate’s engaged in consensual sexual activity with Jane Doe, a female USC student-athlete. When John and Jane later engaged in further consensual sex acts, the teammate’s friend and another man slapped Jane’s buttocks, exceeding the scope of her consent.

Jane told investigators that the men made demeaning comments and were “feeding off each other.” According to her account, she started crying, at which point the men stopped, quickly dressed and left the room.

Jane reported the incident to school officials in August 2013, according to the decision, and John was informed the following month that he was under investigation for 11 alleged violations of the school code of conduct. Initial proceedings resulted in a two-year suspension, which was reduced to one year following an appeal. After an initial investigation and appeals process, John was suspended from campus for one year for violating two sections of USC’s student code.

Los Angeles County Judge Robert O’Brien rejected one of the findings against John. However, O’Brien held that USC’s procedure was fair and afforded the accused an opportunity to tell his side of the story and to review evidence against him. 

The appeals panel disagreed. In Tuesday’s decision, Collins wrote that the school failed to provide John with the factual basis for findings that resulted in his punishment. She wrote that claims against John shifted during the school’s administrative process from questions of whether he had acted with Jane Doe’s consent to whether he “encouraged or permitted” the other men to slap her and endangered her by leaving her alone with them.

“Investigators led John to believe that the only issue was whether sexual contact with Jane was consensual,” Collins wrote. 

Moreover, Collins concluded, John was not allowed to access any evidence used against him unless he actively sought it through a written request, and he was not provided with any opportunity to appear before the decision-making panel to challenge the evidence presented against him.

“While a full trial-like proceeding with the right of cross-examination is not necessary for administrative proceedings,” Collins wrote, “we cannot agree with USC that the process afforded to John met the standards of a fair hearing.”

The decision remands the case to O’Brien with instructions to overturn the punishment.

The case does not appear to have a connection to that of USC football player Bryce Dixon, who was expelled in 2014 for alleged sexual assault and whose punishment O’Brien rejected.

IMAGE: University of Southern California

For more on this story go to: http://www.therecorder.com/id=1202754204076/Court-Student-Punished-for-USC-Sex-Assault-Didnt-Receive-Due-Process#ixzz459TNyMoG