Judged by ‘affirmative consent’
California State University-San Marcos planned to tell a graduate student how he would be punished for allegedly raping a student from a different Cal State campus on a study-abroad trip.
Before it could do that, the accused student took the public university to federal court, alleging it violated his constitutional due-process rights.
The San Diego Union-Tribune reports the accused student offered a drastically different account of events than his accuser on their night together in Germany last year, but CSUSM officials believed her account, despite her admission that she didn’t remember it well:
According to his recollection, the lawsuit states, it was a consensual encounter, in which the female student climbed into his bunk bed, removed her own clothes and didn’t seem overly inebriated. Her account, however, described “fragmented memories” of rape, and stated that she was too intoxicated to give “affirmative consent” — the standard the school requires for sexual contact.
[Victor Manuel] Torres, the plaintiff’s attorney, said that as his client attempted to defend himself, the school withheld the documents it used to find him at fault.
“We asked for reports and statements from the university,” said Torres. “They just said, ‘Well she just said you had sex with her without consent.’”
The university is withholding the accused student’s degree and academic transcripts because of the rape finding, which was based on an investigative report he belatedly obtained that said officials found his account “not credible.”
CSUSM told the Union-Tribune that by finding the accused student responsible, it was simply following its obligations under Title IX to create and sustain “an educational and working environment free of sexual misconduct, dating and domestic violence, and stalking.”
Because the case was filed in federal rather than state court, it may not face the same hurdles as a lawsuit against the University of California-San Diego that prevailed in trial court but lost on appeal.
Superior Court Judge Joel Pressman had ruled the accused student was deprived due-process rights, the rape finding was not based on “substantial evidence,” and he faced retaliation from UCSD when he appealed.
The California Court of Appeal knocked down the ruling, saying the process was not “unfair” to the accused student because he was “provided with notice of his alleged violation, informed regarding the basis of that violation, and given the opportunity to put forth his defense.”