Sexual Assault Injustice at Occidental: College Railroads Accused Student

June 4, 2014

LOS ANGELES, June 4, 2014—Under pressure from the federal government to take action on sexual assault, and in the wake of a multi-plaintiff lawsuit from attorney Gloria Allred last year, Occidental College has found a student “responsible” for sexual assault despite the fact that police refused to charge him with any crime and text message evidence indicates that both parties consented to having sex. Accused student John Doe has filed a pseudonymous lawsuit against Occidental College to invalidate its finding and contacted the Foundation for Individual Rights in Education (FIRE) for help.
“Disregard for due process on campus, prompted by mandates from the federal Department of Education’s Office for Civil Rights, has predictably led to unjust results,” said FIRE Senior Vice President Robert Shibley. “Occidental has now provided another stark demonstration of how the abandonment of fair procedures in college tribunals is failing students by producing outcomes whose accuracy cannot be trusted.”
The incident between Doe and his accuser, both first-year students at Occidental, occurred during the early morning hours of Sunday, September 8, 2013. After being counseled by Occidental employees, Doe’s accuser filed sexual assault complaints with Occidental as well as the Los Angeles Police Department (LAPD) on September 16. Notable among those employees was Professor Danielle Dirks, who, according to the accuser, said that Doe “fit the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was ‘from a good family.’”
LAPD Detective Michelle Gomez interviewed the parties and witnesses. In a charge evaluation worksheet dated November 5, Deputy District Attorney Alison A.W. Meyers declined to prosecute, writing, “Witnesses were interviewed and agreed that the victim and suspect were both drunk, however, that they were both willing participants exercising bad judgment …. It would be reasonable for [Doe] to conclude based on their communications and [the accuser’s] actions that, even though she was intoxicated, she could still exercise reasonable judgment.” This decision ended police involvement in the case.
Meanwhile, Occidental pursued its own investigation by hiring the firm of Public Interest Investigations, which produced an 82-page report about the incident. Among other evidence, the report examined text messages between Doe and his accuser leading up to the sexual encounter. In the messages, the accuser asked Doe, “do you have a condom,” texted another friend “I’mgoingtohave sex now” [sic], and, in an exchange spanning 24 minutes, coordinated with Doe to sneak out of her dorm and proceed to Doe’s dorm to have sex with him.
Following the investigation, Occidental hired attorney Marilou Mirkovich to serve as an “external adjudicator” empowered to issue a judgment in the case. After a hearing in which Doe was unable to meaningfully cross-examine his accuser, the adjudicator found that it was more likely than not that the accuser “engaged in conduct and made statements that would indicate she consented to sexual intercourse.” Yet the adjudicator also found that the accuser was “incapacitated” and therefore her consent was invalid.
In making this determination, the adjudicator did not correctly apply Occidental’s written incapacitation standard: an individual “cannot make an informed and rational decision to engage in sexual activity because s/he lacks conscious knowledge of the nature of the act (e.g., to understand the who, what, when, where, why or how of the sexual interaction) and/or is physically helpless.” This definition of incapacitation cannot be reconciled with the text messages between Doe and his accuser, which make clear that the accuser had conscious knowledge of what she was doing. Instead, Mirkovich found that the accuser was incapacitated because her judgment was impaired due to alcohol consumption and because she could not recall the act of sexual intercourse on the night in question, although she remembered another sexual act that Doe himself did not recall.
Using Occidental’s “preponderance of evidence” standard of proof (a mere 50.01% certainty), the adjudicator concluded that Doe was “responsible” for sexual assault.Doe was expelled.
After Occidental denied his appeal, Doe filed a lawsuit against the college in state court and was granted an Order of Stay pending further legal review. Doe also approached FIRE for help. On April 10, 2014, FIRE wrote Occidental President Jonathan Veitch, noting that “the weakened definition of incapacitation applied by Occidental in Doe’s case is so faulty and unfair that, using the same applied definition and given the same evidence, Doe’s accuser would be guilty of sexually assaulting Doe.”
FIRE asked Occidental to reconsider its finding, pointing out that “[t]he fact that the applied definition of incapacitation would make both parties guilty of sexually assaulting one another brings into stark relief the fundamental unfairness and lack of substantive due process present in Occidental’s actions against Doe.” Occidental’s lawyers informed FIREto expect a response by May 16, but FIRE has received no response.
“Occidental took many of the steps towards dismantling due process that the federal government and lawmakers have been suggesting or even requiring—a lone adjudicator, the low preponderance of evidence standard, a restriction on cross-examination. Now we’re seeing the result,” said FIRE’s Shibley. “By classifying sex while drunk as rape and stripping students of due process protections, Occidental and the federal government have rendered vast numbers of students unwitting rapists—and ensured that being accused is nearly the same thing as being found guilty.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America are described at thefire.org.

<<<<<. Western Civilization has collapsed. We’re haggling over the final score.

That about sums it up

This is hilarious. It took me awhile to find it as it is a few years old.

consentual sex

This is coming from leftists who want to monitor and document what goes on in your bedroom.

Well, so much for frat pledge initiations . . .

A belated Nanny State PING!

Thanks for the ping!

Libertarian ping! Click here to get added or here to be removed or post a message here!

and how many languages will the written consent form have to be in? Or can we just use international sign language?

“Sex for everyone - except straight white males.

Anyway, I don’t necessarily see this as a bad thing.”

You might be a notary......

It's FORNICATION!!!!

Flee from it!!!

Written Permission (FROM Parents) Could be Required For College Sex

No paperwork! Let not your right hand....

What is your church doing to help the male to stay true?

"All of this should be conveyed without having priesthood leaders focus upon intimate matters which are a part of husband and wife relationships. Skillful interviewing and counseling can occur without discussion of clinical details by placing firm responsibility on individual members of the Church to put their lives in order before exercising the privilege of entering a house of the Lord. The First Presidency has interpreted oral sex as constituting an unnatural, impure, or unholy practice. If a person is engaged in a practice which troubles him enough to ask about it, he should discontinue it."
- Official Declaration of the First Presidency of the Church, January 5th, 1982

"Prophets anciently and today condemn masturbation. It induces feelings of guilt and shame. It is detrimental to spirituality. It indicates slavery to the flesh, not that mastery of it and the growth toward godhood which is the object of our mortal life. Our modern prophet has indicated that no young man should be called on a mission who is not free from this practice. What is more, it too often leads to grievous sin, even to that sin against nature, homosexuality. For, done in private, it evolves often into mutual masturbation-practiced with another person of the same sex and thence into total homosexuality...."
- Prophet Spencer W. Kimball, The Miracle of Forgiveness, Pages 77-79, 81-82

"Among the most common sexual sins our young people commit are necking and petting. Not only do these improper relations often lead to fornication, [unwed] pregnancy, and abortions - all ugly sins - but in and of themselves they are pernicious evils, and it is often difficult for youth to distinguish where one ends and another begins. They awaken lust and stir evil thoughts and sex desires. They are but parts of the whole family of related sins and indiscretions. Almost like twins, 'petting' and fornication are alike."
- Prophet Spencer W. Kimball, The Miracle of Forgiveness, page 65

spencer kimball "Also far-reaching is the effect of the loss of chastity. Once given or taken or stolen it can never be regained. Even in a forced contact such as rape or incest, the injured one is greatly outraged. If she has not cooperated and contributed to the foul deed, she is of course in a more favorable position. There is no condemnation where there is no voluntary participation. It is better to die in defending one's virtue than to live having lost it without a struggle."
- Prophet Spencer W. Kimball, The Miracle of Forgiveness, page 196

"And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth." (Genesis 4:9-14.) That was true of murder. It is also true of illicit sex, which, of course, includes all petting, fornication, adultery, homosexual acts, and all other perversions. The Lord may say to offenders, as He did to Cain, "What hast thou done?" The children thus conceived make damning charges against you; the companions who have been frustrated and violated condemn you; the body that has been defiled cries out against you; the spirit which has been dwarfed convicts you. You will have difficulty throughout the ages in totally forgiving yourself."
-Prophet Spencer W. Kimball, "Love Versus Lust", BYU Speech January 5, 1965. Often-used quote still used today in LDS seminary classes.

kimball "I do not find in the Bible the modern terms "petting" nor "homosexuality," yet I found numerous scriptures which forbade such acts under by whatever names they might be called. I could not find the term "homosexuality," but I did find numerous places where the Lord condemned such a practice with such vigor that even the death penalty was assessed."
- Apostle Spencer W. Kimball, "Love Versus Lust", BYU Speech January 5, 1965

"If adultery or fornication justified the death penalty in the old days, and still in Christ's day, is the sin any less today because the laws of the land do not assess the death penalty for it? Is the act less grievous? There must be a washing, a purging, a changing of attitudes, a correcting of appraisals, a strengthening toward self-mastery. There must be many prayers, and volumes of tears. There must be an inner conviction giving to the sin its full diabolical weight. There must be increased devotion and much thought and study. And this takes energy and time and often is accompanied with sore embarrassment, heavy deprivations and deep trials, even if indeed one is not excommunicated from the Church, losing all spiritual blessings."
-Prophet Spencer W. Kimball, The Miracle of Forgiveness, Page 155

"How like the mistletoe is immorality. The killer plant starts with a sticky sweet berry. Little indiscretions are the berries -- indiscretions like sex thoughts sex discussions, passionate kissing, pornography. The leaves and little twigs are masturbation and necking and such, growing with every exercise. The full-grown plant is petting and sex looseness. It confounds, frustrates, and destroys like the parasite if it is not cut out and destroyed, for, in time it robs the tree, bleeds its life, and leaves it barren and dry; and, strangely enough, the parasite dies with its host."
- Apostle Spencer W. Kimball, General Conference Address, April 1, 1967.