Friday, September 21, 2012

Univ. of Arizona holds that student committed sexual assault based on a mere possibility that his accuser didn't consent

A disturbing judicial decision was recently handed down by Arizona's Court of Appeals that should be of concern to the University of Arizona community. A male student was suspended by the university after being found guilty of sexual assault by the school's vice president of student affairs because the vice president found that the male student knew his accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption.

If, indeed, the male student was not certain that his accuser was capable of voluntarily consenting to engage in sex, it seems clear that he should not have proceeded with the act, and that if he plowed ahead in the face of such uncertainty, he acted both recklessly and boorishly. But that is not the issue here. At issue here is whether the male student committed a punishable offense. Here, that seems highly questionable. The male student was found guilty of sexual assault based on nothing more than a possibility that the accuser did not consent. Such a holding is an affront to the most rudimentary notions of due process and an intolerable intrusion on the rights of the presumptively innocent.

According to the decision of the Arizona Court of Appeals, University of Arizona student Jeffrey Patterson and an unnamed female student attended a frat party at the university and then engaged in sexual conduct. Mr. Patterson contends it was consensual, the female student says it wasn't. The female student later asserted "that she had felt an immediate and unusual effect upon drinking alcohol at the party with Mr. Patterson, and did not remember consenting to the sexual intercourse with him that followed. Instead, she recalled excusing herself to a bathroom to get out of a room with Patterson and telling him she was very tired and wanted to go home. She also stated that the day after the incident, she had discovered bruises on her legs, and her vagina was very sore where Mr. Patterson had bitten her." Patterson v. Arizona Board of Regents, 2012 Ariz. App. Unpub. LEXIS 980 at *2 (August 15, 2012).

The female student filed a complaint with the dean of students. As a result, Mr. Patterson was charged with two violations of the university's student code of conduct: (1) endangering, threatening, or causing physical harm to any member of the university community; and (2) sexual assault.

After an investigation, the assistant dean suspended Mr. Patterson for two academic years, citing violations of both charges. Mr. Patterson appealed to the university's hearing board, an advisory body for the vice president of student affairs, who holds final fact finding and disciplinary authority.

The hearing board heard the testimony of numerous witnesses and found that Mr. Patterson was guilty only in connection with endangering, threatening, or causing physical harm to a member of the university community. The hearing board did not find Mr. Patterson guilty of sexual assault.  Accordingly, the hearing board rrecommended a reduced sanction.

The vice president, however, rejected the hearing board's determination regarding sexual assault; she found that Mr. Patterson was guilty of sexual assault. Here are the words the vice president used:  Mr. Patterson knew the accuser "might not have been able to voluntarily consent" to sexual relations due to her alcohol consumption. (Emphasis added.)  Despite the vice president's ruling, she agreed to reduce Mr. Patterson's suspension to one academic year.

Mr. Patterson filed suit against the university. He claimed that the vice president's finding that he knew his accuser "might not have been able to voluntarily consent" was insufficient, as a matter of law, to support a holding that he committed sexual assault. He cited by analogy Arizona legal authorities holding that to be found guilty of such a charge, a defendant must know his sexual contact was without the consent of the victim. Mr. Patterson asked that the matter be remanded so that the university could determine an appropriate sanction for the "minor violation" relating to physical harm.

The Court of Appeals refused to order the relief Mr. Patterson requested, noting that "we might agree with Patterson that the vice president recited an incorrect legal standard in her suspension order," but even if she got it wrong on that point, she "arguably" would have imposed the same sanction. The court explained that the procedural standards in the university setting are "more relaxed" than in a court of law.

The court's decision, and its rationale, are unfortunate. While the holding reflects the usual judicial reluctance to upset orders entered in college disciplinary proceedings, the court could have sent a strong message to institutions of higher learning about zealously respecting the rights of its students. Instead, a male student will go through life branded as a sexual assaulter based only on a possibility that his accuser was incapable of consenting.

A finding of guilt based on a mere chance that the accuser might have consented is the sort of result we might expect in a third world dictatorship. That we are seeing more and more such holdings in America's vaunted institutions of higher learning is a chilling indication that inappropriate forces are impeding the proper administration of college disciplinary claims.

Decision found here: