Male on leave of absence contests discipline for off-campus conduct with former student

Male on leave of absence contests discipline for off-campus conduct with former student

Yet another Complaint has been filed by a male student disciplined after a campus adjudication of alleged sexual assault, this time against the California Regents for the conduct involving UC-Santa Barbara.

As in all the other complaints, there are allegations that the sexual relations were consensual, a substantial delay in reporting, and alleged bureacratic bungling and mischief denying the male student.

But this one has a unique twist — the male was on leave of absence and the conduct was after the semester was over and the female accuser was transferring to another school.  This raises a unique question of the reach of university jurisdiction to enforce campus sexual conduct rules.

What is not unique about this case is the salacious nature of the alleged facts.

According to the Complaint, the accused male and accusing female were part of a group sex encounter at his parent’s Lake Tahoe house, after school was over in June, with the male having graduated and the female transfering:

32. On June 14, 2014, John Doe and Jane Doe, along with a group of friends, traveled to Jane Doe’s parents’ home in Lake Tahoe for the weekend to celebrate the end of the school-year. Although some of the individuals on the trip happened to be members of the UCSB Mock Trial Team, the trip was in no way sponsored by or affiliated with UCSB.

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37. While John Doe was out of the house, L.B. approached Jane Doe in the master bedroom and asked whether she would be interested in having group sex with her and B.R. Subsequently, Jane Doe, L.B. and D.J. advised B.R. that they would be interested in the group sex only if John Doe was also involved.
38. When John Doe returned to the house, Witness B.R. advised him of B.R.’s earlier conversation with Jane Doe, D.J. and L.B. and inquired whether John Doe would be interested in taking part in the group sex.

39. John Doe agreed to participate and thereafter followed Witness B.R. to the master bedroom, where Jane Doe, L.B. and D.J. were sitting on the bed, giggling and laughing.
40. John Doe asked the three girls “are we really going to do this?” to which all three responded “yes,” including Jane Doe who was conscious, responsive and did not appear intoxicated to any of the eyewitnesses present.

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45. Jane Doe was an active and willing participant throughout the entire sexual encounter, demonstrating her consent physically, by kissing John Doe passionately, rubbing his hair as he performed oral sex on her and assisting in the removal of clothing; and verbally, by expressing to John Doe that she liked what he was doing.
46. B.R. and L.B. engaged in sexual intercourse simultaneously. When B.R. became impotent, he suggested that the pairs switch sexual partners. Agreeing to this suggestion, B.R. went over to Jane Doe and John Doe approached L.B.
47. While John Doe engaged in consensual sexual intercourse with L.B., B.R. was unable to complete the sexual activity with Jane Doe, as a result of his alcohol induced impotence.

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50. Approximately five months later, on or about November 6, 2014, John Doe first received notice that he was being charged with sexual assault in violation of Section 102.08 of the UCSB General Standards of Conduct; namely, “physical abuse, sexual assault, threats of violence, or other conduct that threatens the health or safety of any persons.” …..

The Complaint also details what the male student alleges were procedural defects in the manner in which the case was handled by university administrators, resulting in alleged lack of due process.

The twist in this case is that the conduct took place far from campus, in a private setting, and while the male was on leave of absence, the semester was over, and the female was transferring to another school. This, the accused male asserts, deprived the university of jurisdiction:

2. The allegations purportedly referred to what was clearly consensual sexual activity between John Doe and Jane Doe that occurred on June 16, 2014, several hundred miles away from campus, at a privately owned residence and during the summer break (the “Incident”). At the time, Jane Doe had already been accepted as a transfer student elsewhere.

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55. As a preliminary matter, UCSB did not have jurisdiction to investigate or adjudicate the subject Incident. The UC Santa Barbara General Standards of Conduct state that the University may only exercise jurisdiction over student conduct that occurs off University property in certain situations. In considering whether to exercise such off campus jurisdiction, the University may consider a variety of factors including: (1) whether the alleged victim is a member of campus community; (2) whether a crime has been reported to the criminal authorities; (3) the risk of future harm involved; and (4) whether the off-campus conduct is part of a series of actions that occurred both on and off campus. Any request to extend the University’s jurisdiction beyond its typical borders must be reviewed by the Associate Dean for Judicial Affairs, Dean of Students, Vice Chancellor for Student Affairs and a committee composed of both faculty members and students. Indicating the magnitude of extending such jurisdiction beyond its borders is the school’s self-imposed requirement that all aforementioned parties be in agreement with the proposal to extend UCSB’s jurisdiction.

56. Yet, in its decision, the Committee fails to even address the issue of extending UC Santa Barbara’s jurisdiction to the events of the Incident, let alone ensure that the requisite agreement was obtained by the University prior to commencing its investigation. Notably, the Incident occurred after the conclusion of the spring semester, at a private home located several hundred miles away from campus. Moreover, at the time of the Incident, John Doe was not a
current student at UC Santa Barbara; in fact, he was on a leave of absence and had been for the previous two quarters while residing off campus. John Doe had not taken a class at UC Santa Barbara in at least six months, and had not been active with the Mock Trial Team since March of 2014.

57. Notably, Jane Doe also was not a current student at UC Santa Barbara, as the semester had concluded and her transfer to a University on the east coast had been finalized several months prior. Evidently, neither the alleged victim nor the alleged perpetrator was a member of the campus community. Moreover, a crime was not reported to the criminal authorities, and there was no reasonable risk of future harm to the complainant as Jane Doe had already finalized her transfer to another school and would not be returning to the UCSB campus. Additionally, there was no evidence that the Incident was part of a series of actions that occurred both on and off campus. Consequently, none of the factors which would permit UC Santa Barbara to exercise its jurisdiction over the Incident, pursuant to its own Code of Conduct, were present in this matter.

58. In an attempt to bring this Incident within the purview of UCSB, Ms. Perkin mischaracterizes the setting of the Incident in the First Investigative Report as a “Mock Trial Trip to Lake Tahoe.” To the contrary, the subject trip was in no way school sponsored or affiliated; rather, this was a year-end trip organized among a group of friends. The fact that some of the individuals happened to have initially met each other through the University’s mock trial group does not bring the Incident within the purview of UC Santa Barbara’s jurisdiction where the Incident occurred off school grounds, took place during the summer break, and, most significantly, neither Jane Doe nor John Doe were current students of UC Santa Barbara. Neither the Courts nor Title IX of the Education Amendments of 1972 explicitly permit a University to discipline an individual who is not a current student of that school, for an incident that occurred off campus, on private property, at a private non-school sponsored event. Thus, UCSB lacked jurisdiction to investigate and adjudicate the subject Incident.

This appears to be a case of first impression, at least among the most recent batch of cases.  Andrew T. Miltenberg, Esq., the attorney for the male plaintiff, who represents many male students in such cases, indicated to me that he was not aware of a similar case. He further writes:

We believe that UC Santa Barbara’s ruling is disturbing, insofar as the sanction was imposed for alleged activity that took place in a private residence, outside of the state, when school was no longer in session, having ended for the semester. There must be some reasonable limit on a university’s exercise of its disciplinary powers. Following the reasoning used by UCSB, a matriculating student is subject to school disciplinary rules, wherever and whenever.

It seems to me that the status of the accused and accuser will be critical to this jurisdictional argument.  Is a student on a leave of absence a student for the purpose of the campus disciplinary code. Similarly, after the semester has ended is a student in the process of transferring to another school still a student under the disciplinary code.  If either of the participants is not a student, then it’s hard to see how the university invokes campus discipline.

I reached out to the California Regents legal department for comment, but have not yet heard back.

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Doe vs UC – Santa Barbara Complaint

[The title of this post was changed after publication.]

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