Jane Roe was drunk. John Doe claimed she consented to have sex. She denied it. When suspended by the university that both of them attended, Doe moved to set aside his penalty because he was denied the chance to cross-examine his accuser. The trial court said there were no credibility issues in the case, so live testimony was not needed. Doe appealed. Now, an appellate court affirmed that Doe had no right to confront the woman who, he claims, consented to intercourse.

Writing for a unanimous three-judge panel in the California Court of Appeal’s First District, Division Two, Associate Justice Douglas P. Miller affirmed the September 30 decision of the district court. His ruling was certified for publication on October 19. After reviewing the administrative record, Miller concluded that there had been a thorough investigation by the University without bias and that Doe had been given “many opportunities to cite his version of events and to review and respond to the evidence.”

“On this record,” Miller said, “we cannot say John was denied a fair process.”

John Doe and Jane Roe were both students at the University of California, Davis (UC Davis). At the time of their encounter, student conduct at UC Davis was governed by the 2017 version of the university’s “Sexual Violence and Sexual Harassment Student Adjudication Framework.” This document defines sexual assault as “Without the consent of the Complainant, penetration, no matter how slight of the vagina, anus or mouth by a penis; or the vagina or anus by any body part or object.”

It further defines consent as “affirmative, conscious, voluntary and revocable” and also states that each person is responsible for ensuring that the other party’s consent was given “voluntarily” and not because the Complainant was “asleep or unconscious due to the influence of drugs, alcohol, or medication, unable to understand the fact, nature or extent of the sexual activity.”

Compliance with the University’s Framework is overseen by a Title IX officer. Title IX prohibits discrimination on the basis of sex in any educational program that receives federal funds. The Title IX officer is charged with conducting investigations into complaints involving sexual violence. After a decision is made, both students receive the officer’s report and are given an opportunity to appeal to the Office of Student Support and Judicial Affairs (OSSJA), which decides whether any policies were violated. When Doe appealed, his case received further review from an appeal hearing officer.

Doe, Roe and five other witnesses were interviewed during the Title IX officer’s fact-finding mission. The court’s summary was detailed in Miller’s opinion. It related how, one night in 2017, Roe got drunk during a student party in her dorm room to which Doe had been invited. Doe brought alcohol to the party that had been provided by upperclassmen in Doe’s fraternity. Roe later consumed a great deal of alcohol and got sick. She vomited and Doe went to the bathroom to help her and to make sure she was OK. He left her there in order to help another party-goer, then later returned to the restroom, found Roe asleep and, after a while, helped her to her dorm room. Roe then fell asleep.

After that, Roe said she wasn’t sure exactly what followed, but did remember that Doe got into bed with her at some point. She told the investigator, “He, I guess, just took advantage of me. I was not in any state to give consent, which was really obvious.” She did remember that Doe had condoms and admitted “that she should have been more direct in telling John to leave,” but also said she had “lacked the ability to do that.” Throughout the interview process, she said that the sex was nonconsensual.

Doe said Roe had consented. His version of events claimed that during the night, she told him she was cold, and he offered to “get under the covers with her and keep her warm.” At about 2:30, he claimed, Roe kissed him, entangled their legs, and told him she wanted to “do it.” He asked if she was kidding and she said no. He asked if she was sober and she said she was. He repeated his claims of Roe’s consent several times and recounted how he later asked if she would perform oral sex. He said she agreed to that as well.

Interviews with witnesses supported parts of the testimony of each party. Witness A said Roe claimed, “John took advantage of her.” Witness B said Jane was sober and “speaking clearly when they had sex.” Witness C said Doe told him he was not sure whether the sex was consensual. Witness D added that Doe was holding Roe up when he brought her into her room.

After the interviews and a review of the evidence, the Title IX investigator found 28 undisputed factual findings. She concluded that, although there were “issues of reliability on both sides,“ Roe was incapacitated due to her alcohol consumption and therefore incapable of giving her consent. UC Davis concluded that a reasonable person should have known that Roe’s condition rendered her incapable of giving her approval. Doe received a two-year suspension from the university. After additional filings, OSSJA upheld the two-year suspension. An additional appeal to the Chancellor of the UC system approved the suspension.

Doe’s case then left the University’s review and went to trial in 2019. He lost in the trial court and appealed its ruling. His appeal rested on three premises. First, he claimed he was denied an opportunity to cross-examine Roe in front of a decision-maker who was not also an investigator in the case. Second, he argued that the investigator did not conduct a “fair, thorough, and impartial” review of the facts. Finally, he said that there was not enough evidence to support the findings.

Justice Miller’s discussion explained the standard of review the court must apply to UC students who challenge suspensions in the courts. To prevail, students must show their university acted “without, or in excess of is jurisdiction, deprived the petitioner of a fair administrative hearing, or committed a prejudicial abuse of discretion.” Noting that Doe never even asked to conduct live cross-examination and never “objected to any aspect” of the University’s procedures, he concluded that none of these criteria was met. In addition, he affirmed that credibility was not a central issue in the case as required for finding abuse of discretion.

The Justice reiterated UC’s policy that explains “a reasonable person should have known the Complainant was incapacitated and unable to understand the fact, nature, or extent of the sexual activity. “ The evidence provided by Doe’s own accounts of the events, he concluded, was sufficient to establish that he knew Roe was incapacitated. He also found the investigation to be fair and found the university’s conclusion to be well documented.