Judge Curtis A. Kin, Case Number: 22STCP03907, Date: 2024-05-21 Tentative Ruling

Petitioner John Doe petitions for a writ of mandate directing respondent University of Southern California (“University” or “USC”) to set aside a decision finding that petitioner engaged in sexual misconduct and suspending petitioner for three years.

In fall 2021, both petitioner and non-party Jane Roe were enrolled as first-year students in the University’s undergraduate program. (AR 8, 729.) Petitioner and Roe met on an evening in mid-August 2021 during a casual social event between their two friend groups. (AR 172-74, 729, 830.) At the end of that night, petitioner spent the night in Roe’s bed. (AR 178-79, 730, 830.)

On a few occasions prior to September 2, 2021, the parties slept next to one another, and did “[make] out.” (AR 209, 302-04, 730.) Both parties stated that, on the night of September 2, 2021, the parties unsuccessfully attempted to engage in consensual penile-vaginal sexual intercourse in Roe’s room. (AR 730, 829, 865.)

Responding to petitioner’s September 5, 2021 text message asking what Roe was doing, Roe said that she had work to do, that her roommate was not in, and that she would be going to bed early. (AR 174, 179, 733-34, 833-34.) Petitioner responded that he was hoping to hang out with Roe that night, to which Roe replied that she had to finish her work and would probably be done around “10ish.” (AR 251, 733-34, 833.) Roe was surprised when petitioner showed up because she did not receive any notice that petitioner would be coming over. (AR 736, 833.) If she had, she said that she would have declined due to work. (AR 833.) For his part, petitioner said that he decided to surprise Roe with a “study break” and that, if she did not want to spend time with him, he could go downstairs to socialize with one of their mutual friends. (AR 274, 735, 910-11.)

Petitioner arrived at Roe’s dorm room at approximately 10:30 p.m. on September 5, 2021. (AR 733.) Once in her room, Roe told petitioner she had work to finish, which petitioner downplayed, resulting in him staying in her room. (AR 737.) Earlier, at 10:28 p.m., Roe had texted her friend Saloni Jhawer and asked her to come hang out with Roe at her dorm because they had made prior plans to hang out together that evening. (AR 231-32, 738, 841.) When Jhawer arrived, Roe informed Jhawer that petitioner was present; Jhawer asked if she should leave, and Roe replied asking her to stay because she was uncomfortable. (AR 738, 844-45.) After staying and speaking to petitioner for some time, Jhawer told Roe that she was very uncomfortable and left. (AR 844-45.)

Although Roe had not planned to have sex with petitioner that evening, she ultimately decided to give in to get him to leave. (AR 761.) After about 10 to 15 minutes of having penile-vaginal sex, petitioner told Roe to get into the “doggy style position,” to which Roe told petitioner it was not the easiest position for her given Roe was “weirdly proportioned” due to her long legs and higher hips. (AR 741, 839, 894-96.) Roe said that petitioner then used both of his hands and penis to penetrate Roe’s vagina, which was very painful for Roe. (838-39.) Petitioner did not say anything to Roe before he digitally penetrated her. (AR 742, 838.) Petitioner acknowledged that he began penetrating Roe’s vagina with his fingers, without engaging in any verbal or non-verbal communication before doing so. (AR 896-97.) Petitioner stated that he penetrated Roe’s vagina with his fingers shortly after he took his penis out of Roe’s vagina in the “doggy” position, at which point petitioner’s penis was flaccid, so he “tried to quickly improvise within that scenario,” thinking to himself, “I’ll finger her a little bit as I’m trying to get another erection.” (AR 741-42, 897.)

Petitioner acknowledged not being able to see or sense Roe’s reaction when he started digitally penetrating her instead of engaging in sexual intercourse with his penis. (AR 897.)

Roe stated that, when she bent forward in front of petitioner on the bed, petitioner began to scratch Roe’s vagina with his nails. (AR 742, 870.) Roe described petitioner’s nails as long and stated that he was “jabbing” his fingers into her vagina, scratching her and causing her pain. (AR 742, 785.) Roe stated petitioner also scratched her vagina as he opened her vagina to insert his penis. (AR 742, 785.) Roe said “ow” two or three times and began crying. (AR 742, 838-39.) Roe then heard petitioner laugh in response to her exclamations. (AR 742-43, 839.) At that point, Roe pulled her hips away, got off the bed, put her clothes on and grabbed her water bottle as an excuse to leave to get water, and did not return. (AR 839, 898.)

Petitioner stated that he did not hear Roe say “ow,” tell him to “stop,” or otherwise perceive any signs that Roe wanted to stop engaging in the sexual encounter. (AR 743, 897.) Petitioner also acknowledged that he did not perceive any signs of Roe expressing pleasure or enjoyment when he used his fingers to penetrate her. (AR 743, 897-98.) Petitioner stated he did not recall ever laughing during the sexual encounter. (AR 743, 898.) Petitioner stated he felt a lot of anxiety and humiliation around the fact that he was having difficulties with an erection and proceeded to sit down on the bed and take the condom off because he believed the sexual encounter might be over. (AR 898.) Roe ended the sexual intercourse because petitioner’s conduct had caused her excruciating pain, at which point Roe ran away crying, without putting on shoes, and did not return. (AR 743, 839.)

After leaving her bedroom, Roe first called her friend Lauren Berthoumieux at 1:21 a.m., who did not answer the call. (AR 744, 878.) She then texted Berthoumieux, “R u up. I need u.” (AR 234, 744.) Roe then immediately called Jhawer and Miles Bernstein. (AR 241, 744, 878.) After leaving her room, Roe went to Jhawer and Alyse Saucedo’s room, started sobbing, and shared with Jhawer and Saucedo that petitioner scratched her, as well as how bad and the painful the experience was. (AR 194-96, 440-41, 744, 878.) She told Jhawer and Saucedo that she missed her boyfriend from home and regretted having sex with Petitioner. (AR 196, 744-45.) Roe also recalled describing a throbbing pain in her vagina and feeling like it was “on fire.” (AR 185, 190, 764.) Roe reported that later that week she saw scabbing on her genitals where the scratching occurred and felt pain during urination. (AR 196, 744.) Roe stated that she, together with Jhawer and Saucedo, then called Bernstein to ask for his help getting petitioner to leave Roe’s room. Roe, Jhawer, and Saucedo told Bernstein that petitioner was “very aggressive” and that he was putting his fingers in her vagina but his nails were long such that he was scratching her and causing lots of pain. Bernstein told Roe to pretend that she was helping someone who was drunk, and Jhawer left to tell petitioner that Roe would not be returning to her room. (AR 195-96, 199, 607-08, 745-46.) Roe then texted petitioner at 1:45 a.m., stating: “Hey so sorry dealing with a problem. I’ll text u tmr. Sorry again about the interruption.” (AR 233, 745.) When Roe returned to her room three or four hours later, petitioner was gone. (AR 745, 879.)

In addition to reporting the incident to Bernstein, Jhawer, and Saucedo in the early morning of September 6 immediately following it, Roe described the incident to Tomi Boyejo, Diya Patel, Berthoumieux, Taylor Richter, Abigail Abramson, and Holden Kilbane—all of whom subsequently confirmed in large part Roe’s reports of what she told them. (AR 197-98, 241-244, 341-42, 415-16, 542-44, 578-80, 669-72, 682-83, 746-749.) Later that day, at 3:07 p.m., Bernstein texted Roe asking how she was doing and inquired if she was feeling better, to which she replied affirmatively and stated “I still don’t know what to do like talking to him. But that’s for later today to figure out.” (AR 235.) Bernstein responded by instructing Roe not to communicate with Petitioner, writing: “That shit is not cool… [y]ou do not need to talk to him… Unless u don’t want to.” (AR 235.) Roe replied: “No I do. I feel scared.” (AR 235.) Bernstein replied with “u are 100% justified in feeling scared. (AR 235.)

On September 7, 2021, shortly after midnight, Roe texted petitioner: “Hi I’m sorry but I don’t think we should hook up anymore.” (AR 230, 749-50.) Petitioner responded: “Damn it was that bad huh?” When Roe did not immediately respond, he texted Roe’s name followed by two question marks, to which Roe replied: “Yes.” Petitioner responded: “Yo can we talk. I’m jus tryna understand everything. U good?”; Roe did not text any response. (AR 230, 749-50.) At 12:46 a.m., the petitioner and Roe spoke on the phone, during which Roe said something to the effect of, “It was bad, let’s just leave it at that,” to which petitioner replied, “It was bad for me, too.” (AR 241, 750, 900.) Petitioner admits that Roe informed him that Roe did not want to “hook up” ever again but said the two could remain friends. (AR 831, 899-900.) During a phone call in which the parties discussed the events of September 5, petitioner recalled Roe telling him: “Let’s just chalk it up to a bad night.” (AR 900.) Petitioner said this confused him because “[their] relationship before the news largely predicated on flirtation and touch.” (AR 831, 900.)

On September 11, 2021, Roe left Richter a voice message, to which Richter responded that she was “so sorry about that boy… Being uncomfortable and upset is totally normal so no need to feel weird or embarrassed at all. Just keep speaking for yourself and only do things that you want to do because you matter most.” (AR 254.) Roe responded that she “felt so pressured and the hook up was so painful and awful that [she] kinda don’t want to ever be alone with him j in case he tries to get with me again.” (AR 255.) She added that “[Roe] told [petitioner] that [they] should stop hooking up and [petitioner’s] friend was like [petitioner] took it as we are keeping our thing on the low. Like guys j hear what they want.” (AR 255.)

On September 17, 2021, Roe and her roommate Patel had a party in their dorm room. Earlier that evening, at 6:08 p.m., Boyejo texted Roe that petitioner asked Boyejo if he had plans that night and asked Roe how he should respond, to which Roe responded, “U can tell him. I don’t mind,” because Roe did not want to be “mean” or exclude people. (AR 236, 750-51.) During the party, although Roe tried to avoid petitioner, petitioner repeatedly came “weirdly” close to her and touched her on several occasions. For example, Roe recalled that, while she was in the common area outside of her room using her phone, petitioner came to sit next to her. When Roe got up after petitioner sat next to her, petitioner grabbed her hip to pull her back. (AR 751, 800.) Petitioner stated that, at this point, he was confused about his relationship with Roe, because Roe mentioned she wanted to be friends, but their relationship had been mostly sexual up to that point. Petitioner stated that, during the party, he was trying to “feel out that new dynamic” and make sure nothing seemed “weird.” (AR 314, 751, 831.)

Petitioner attempted to dance with Roe but got the impression Roe did not want to dance with him, which he understood to be an indication either that Roe felt stressed about hosting the party or that Roe did not want anything to do with petitioner at that time. (AR 752, 899.) Petitioner stated that, after he realized Roe did not want to dance with him, he “gave her space for the rest of the night.” (AR 752, 899.) Bernstein observed petitioner attempting to touch Roe, get her attention, or dance with her throughout the evening, and Roe was not reciprocating petitioner’s efforts, moved away, and appeared “visibly uncomfortable.” (AR 603-04, 610-11, 752.) Boyejo also observed petitioner “still touching [Roe] like they were in a relationship,” including one instance in which petitioner touched or grabbed Roe around her waist, even though Roe appeared as though she did not want to be around petitioner. (AR 344, 752-53.)

Petitioner stated that he attended the party “unsure of how good of a friend [Roe] viewed [petitioner],” but that he thought to himself, “if this girl did not want to see me and she would tell me….” (AR 831.) Petitioner recalled observing Roe act “noticeably colder towards [him] that night…[s]o [he] decided to get drunk and high and in an effort to forget about her, [he] focused on talking to other people at that party, but noticed that at one point [he] was uncomfortably nauseous.” (AR 753-54, 831-32.) Petitioner stated that he did not want to leave the party abruptly because he thought that would look strange and so he tried to still have fun with the people around him. (AR 832.) At the end of the night, when the music had turned off and the lights were turned on, petitioner claims he felt significantly more nauseous and, in an effort to calm himself down, rested at the bottom of Roe’s bed, which he had seen others sit on before and didn’t see any harm in being on. (AR 832.) Petitioner then sat up, took a few minutes to “study himself,” and then made the “cold sobering walk home,” during which he “swore to never let [himself] get that drunk and high ever again.” (AR 832.)

On September 18, 2021, at 7:51 p.m., Roe requested to speak to petitioner. (AR 259, 755.) When they spoke, Roe told him that his actions the night before were unacceptable and that she heard from Bernstein that petitioner and his friend had made sexual comments about her. Roe confirmed to Petitioner that they were not a “thing.” (AR 223, 755.)

On October 14, 2021, a Resident Assistant (“RA”) informed the University’s Office for Equity, Equal Opportunity, and Title IX (“EEO-TIX”) about a report of sexual assault made by a resident of the RA’s building. (AR 158-60, 725.) Following an initial interview with EEO-TIX, on December 14, 2021, Roe filed a Formal Complaint. (AR 165-68, 726.) Based on the allegations of the Formal Complaint, on January 14, 2022, the University issued a Notice of Investigation to petitioner and Roe, along with a copy of the Policy on Prohibited Discrimination, Harassment, and Retaliation (“Policy”) and the Resolution Process for Sexual Misconduct (“Resolution Process”), with links to supportive resources.[2] (AR 144-57, 726, 832.)

The investigation consisted of interviews of Roe (on two occasions), petitioner (on two occasions), and 11 witnesses. (AR 169-229, 263-313, 726-27.) The Investigator, Abigail Woodruff, conducted individual interviews with the ten witnesses identified by Roe and the three witnesses identified by petitioner. (AR 726-27.) The Investigator reviewed documentary evidence provided by the parties and witnesses in the form of text messages, photographs, and videos. (See, e.g., AR 373-82.)

After this investigatory fact-gathering, from April 22, 2022 to May 20, 2022, as part of the “Evidence Review” stage, the Investigator gave the parties an equal opportunity to inspect and review the evidence obtained, and the parties submitted related responses to the Evidence Review on May 20, 2022. (AR 59-70, 727.)

3. The University Provides the Parties with Access to the Investigation Report, All Exhibits, and Notice of Hearing.

Pursuant to the University’s Resolution Process, the Investigator produced an Investigative Report that summarized the relevant information gathered during the investigation, which was made available to both parties prior to the hearing. (AR 1-50, 1011, 1018.) The parties were provided with the opportunity to submit a written response. Roe provided a written response, while Petitioner did not. (AR 1018-19).

4. The University’s Independent Hearing Officer Conducts a Hearing and Issues a Written Decision

Following issuance of a July 27, 2022 written Notice of Hearing, a live hearing was conducted via Zoom on August 8-10, 2022. (AR 720-23, 821-986.) The parties, through their advisors, were given the opportunity to question the other party and all witnesses who participated in the hearing directly, verbally, and in real-time. (AR 728-29.) After the hearing, the Hearing Officer, Amanda Norris Ames, issued a Confidential Written Notice of Determination (“Decision”). (AR 724-69.) The Hearing Officer found as follows:

With respect to the events of September 5, 2021 (“First Incident”), both petitioner and Roe agreed that petitioner digitally penetrated Roe’s vagina without any communication (verbal or non-verbal) from Roe. (AR 762.) Neither party shared any clear actions or words necessary to constitute Roe’s affirmative consent to a different sexual activity.[3] (AR 763.) Petitioner reported that he decided to “improvise” with Roe by “pleasuring” her with his fingers but was attempting to hide both the fact that his leg was cramping and his penis was flaccid.[4] (AR 762.) Petitioner confirmed that Roe was facing away from him at the time, and he could not see her face or her reaction to his actions. (AR 762.)

With respect to the events of September 17, 2021 (“Second Incident”), petitioner did not dispute that, after Roe told petitioner that she only wanted to be friends, he attempted to dance with Roe even though she did not seem interested. (AR 766.) Petitioner reported that he did not want any friends at the party to ask questions about the status of the parties’ relationship, so he wanted to “make everything seem [like] it had always been.” (AR 766; see also AR 307-08.)

The Hearing Officer determined that, by a preponderance of the evidence, petitioner had engaged in Title IX Sexual Harassment (Sexual Assault), Title IX Sexual Harassment and Sexual (Hostile Environment) Harassment, as well as certain SCampus violations. (AR 763, 768-69),

On September 19, 2022, the Associate Vice President and Deputy Title IX Coordinator for EEO-TIX provided the Hearing Officer’s Decision to the parties, as well as the Sanctioning Panel’s decision to expel petitioner. (AR 1111-17.) The parties were informed of the right and procedure for appealing the findings and sanction. (AR 1111-14.) The Sanctioning Panel’s written decision specified that it weighed the following considerations: (1) the nature and severity of the conduct; (2) the impact of the conduct on Roe; (3) the impact or implications of the conduct on the community or University; (4) prior misconduct for which petitioner had been found responsible; (5) whether petitioner had accepted responsibility for the conduct; (6) maintenance of a safe and respectful environment conduct to learning; (7) presence or absence of bias as a motivation for petitioner’s conduct; (8) protection of the University community requiring extended protective measures or other sanctions; and (9) any other mitigating, aggravating, or compelling circumstances in order to reach a just an appropriate resolution in the case. (AR 1115-17.)

6. The University Reviews and Partially Grants Petitioner’s Appeal of the Hearing Officer and Sanctioning Panel’s Written Decisions

On September 26, 2022, petitioner submitted a written appeal of the Sanctioning Panel’s decision on the basis of alleged bias by the Hearing Officer and Sanctioning Panel. (AR 1118-20.) Roe submitted a response to petitioner’s appeal on October 3, 2022. (AR 1122-26.)

On October 21, 2022, the Interim Vice President for Student Affairs, designated with appellate Authority for the appeal under the Policy and Resolution Process, issued a decision regarding petitioner’s appeal to the parties. (AR 1132-52.) The appeal decision stated that petitioner’s appeal did not support a finding of bias on the part of either the Hearing Officer or the Sanctioning Panel. However, , however, indirectly identified a possible procedural irregularity with respect to the Sanctioning Panel’s consideration of the “nature and severity” of petitioner’s conduct. (AR 1133, 1136.) Accordingly, the sanction of expulsion was modified to instead impose the following sanctions: (i) a three-year suspension, (ii) exclusion from University property during the period of suspension, (iii) an Avoidance of Contact directive that instructs petitioner to have no contact with Roe, and (iv) a one-hour educational coaching session specifically focusing on affirmative consent. (AR 1133, 1136.)

On October 31, 2023, petitioner filed a Petition for Writ of Administrative Mandate. No answer has been filed.

On November 18, 2022, the Court (Hon. Mitchell L. Beckloff) denied petitioner’s ex parte application to stay the decision suspending petitioner.

On September 18, 2023, petitioner filed an opening brief. On October 18, 2023, respondent filed an opposition. On October 20, 2023, respondent filed an amended opposition. On November 14, 2023, a hearing was held on the petition. The Court granted petitioner’s oral request to continue and allowed petitioner to file a reply before the hearing. On May 6, 2024, petitioner filed a reply. The Court has received an electronic copy of the administrative record.[5]

Under CCP § 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Numerous Court of Appeal cases have affirmed that student sexual misconduct proceedings at public and private universities do not involve a fundamental vested right, and that the substantial evidence standard applies in the trial court. (See, e.g., Doe v. Occidental College (2019) 40 Cal.App.5th 208, 220-221; Doe v. Allee (2019) 30 Cal.App.5th 1036, 1060; Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 238, 239, 248-49; Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1073-74; see also Gurfinkel v. Los Angeles Community College Dist. (1981) 121 Cal.App.3d 1, 6 [no fundamental right to a public college education].)

Substantial evidence is “relevant evidence that a reasonable mind might accept as adequate to support a conclusion” (California Youth Authority v. State Personnel Board (2002) 104 Cal.App.4th 575, 584-85), or evidence of ponderable legal significance which is reasonable, credible and of solid value (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633). “Courts may reverse an [administrative] decision only if, based on the evidence…a reasonable person could not reach the conclusion reached by the agency.” (Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 610.)

“On substantial evidence review, [the court] do[es] not weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. The administrative agency’s findings come before [the court] with a strong presumption as to their correctness and regularity. [The court] do[es] not substitute [its] own judgment if the agency’s decision is one which could have been made by reasonable people. Only if no reasonable person could reach the conclusion reached by the administrative agency, based on the entire record before it, will a court conclude that the agency’s findings are not supported by substantial evidence.” (Doe v. Regents of University of California (2016) 5 Cal.App.5th 1055, 1073, citations and quotations omitted.)

“Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “A university is bound by its own policies and procedures.” (Doe v. Regents of the University of California (2016) 5 Cal.App.5th 1055, 1078.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062, disapproved of on other grounds by Boermeester v. Carry (2023) 15 Cal.5th 72, 96.) “To comport with due process …, university procedures must be tailored in light of the matters at issue, to ensure that parties have a meaningful opportunity to present their case.” (Id. at 1063-64.) As a general rule, the accused usually “must be permitted to see the evidence against him.” (Doe v. Regents of University of California (2018) 28 Cal.App.5th 44, 57.)

Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

The procedural fairness of an administrative proceeding is a question of law and accordingly reviewed de novo. (Doe v. University of Southern California (2018) 29 Cal.App.5th 1212, 1231; Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Petitioner contends that the Hearing Officer was not neutral and failed to apply the preponderance of the evidence standard. Petitioner argues the Hearing Officer deprived him of a fair hearing because she (1) ignored the distinction between reasonable belief in consent and actual consent and (2) failed to explain how the conduct during the Second Incident on September 17, 2021 was unwelcome when Roe accepted the conduct before and did not indicate the conduct was unwelcome on the date of the Second Incident.

With respect to the first ground, the Policy requires each individual engaging in sexual activity “to ensure they have the Affirmative Consent of the other(s) to engage in each act of sexual activity.” (AR 92, emphasis in original.) “Affirmative consent” is defined as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” (AR 92.) Affirmative consent “is positive cooperation in act and attitude made with knowledge and agreement to the nature of the act.” (AR 92.)

Petitioner’s assertion that the Hearing Officer ignored the distinction between reasonable belief in consent and actual consent is incorrect. The Hearing Officer set forth the portion of the Policy that indicates that reasonable belief in affirmative consent is a defense to sexual assault. (AR 757-58; see also AR 95 [portion of Policy regarding reasonable belief in affirmative consent].) The Policy provides: “In evaluating whether a Respondent’s belief was plausible and reasonable, the University will consider the totality of circumstances, including information known to the Respondent, as well as information that should reasonably have been known to the Respondent. The University will evaluate whether the communication (through clear words and/or actions) between the parties would be interpreted by a reasonable person (under similar circumstances and with similar identities) as a willingness to engage in a particular sexual act.” (AR 95.)

In the Decision, the Hearing Officer explained, with respect to digital penetration:

[N]either party described any actions or words by Reporting Party related to this specific sexual activity until Reporting Party stated that she began to say, ‘ow,’ and indicate that she was in pain. While Respondent stated that he did not hear or observe any negative response from Reporting Party, even if true, a lack of a ‘no’ is insufficient to indicate the presence of affirmative consent.

(AR 763, emphasis in original.) Because petitioner digitally penetrated Roe without any communication from her, the Hearing Officer concluded: “[T]here is sufficient evidence, by a preponderance of the evidence, to conclude that Respondent digitally penetrated Reporting Party’s vagina without affirmative consent during the First Incident.” (AR 763.) Based on the lack of communication by Roe regarding digital penetration, petitioner could not avail himself of a defense based on his reasonable belief.

The Hearing Officer thus properly applied the preponderance of the evidence standard and the University’s Policy regarding affirmative consent. The petitioner fails to demonstrate that the Hearing Officer was not impartial.

With respect to the second ground, the Policy defines Sexual and Gender-Based Harassment to include “any sexual advance, request for sexual favors, or other unwelcome conduct of a sexual nature, whether…physical…or otherwise” when the “conduct is sufficiently severe, pervasive, or persistent that it has the purpose or effect of unreasonably interfering with, limiting or depriving an individual from participating in or benefiting from the University’s learning, working, or living programs under both a subjective and objective perspective.” (AR 87.)

The Hearing Officer found: “Considering the totality of the evidence, the Hearing Officer finds that there is sufficient evidence to conclude that Respondent subjected Reporting Party to unwelcome sexual contact when he touched her while trying to dance and/or interact with her at the party.” (AR 766.) The Hearing Officer also found that petitioner’s conduct during the Second Incident was “was severe, pervasive, and offensive from both an objective and subjective perspective.” (AR 767.)

Petitioner argues that the Hearing Officer did not explain how petitioner’s conduct during the Second Incident was objectively unwelcome when Roe accepted the conduct before and did not indicate the conduct was unwelcome on the date of the Second Incident. Petitioner is incorrect. The Hearing Officer noted that, before the Second Incident, Roe told petitioner that she only wanted to be friends. (AR 766.) The Hearing Officer also explained that Roe, Bernstein, and Boyejo recounted instances when petitioner grabbed Roe by the hip or touched Roe’s waist and stomach. (AR 766.) The Hearing Officer described Bernstein and Boyejo’s testimony in which observed Roe’s visible disapproval of petitioner’s actions. (AR 766.)

Based on the foregoing, regardless of whether Roe accepted touching from petitioner prior to the Second Incident, the Hearing Officer explained that Roe did not welcome petitioner’s touching her during the Second Incident. The Hearing Officer thus explained why petitioner’s touching was objectively unwelcome. The Hearing Officer properly applied the preponderance of the evidence standard and the University’s Policy regarding sexual harassment. The petitioner fails to demonstrate that the Hearing Officer was not impartial.

With respect to the finding that petitioner digitally penetrated Roe’s vagina without affirmative consent, petitioner contends that the Hearing Officer did not explain why petitioner’s perception of Roe’s consent was unreasonable when the Hearing Officer found that petitioner did not sexually assault Roe through penile-vaginal penetration. (AR 762.)

Substantial evidence supports the finding that petitioner digitally penetrated Roe without affirmative consent. Roe testified during the hearing that petitioner did not say anything to her before he began to digitally penetrate her. (AR 838.) Petitioner was asked during the hearing, “[B]efore you started penetrating [Roe’s] vagina with your fingers, did you have any communication, whether verbal or non-verbal, about you starting to engage in that act?” (AR 897.) Petitioner responded, “No,” explaining that while attempting to get another erection, he “quickly improvise[d]” by deciding to “finger her.” (AR 897.) Because both petitioner and Roe agreed that Roe provided no affirmative indication, either through actions or words, that she consented to digital penetration, petitioner could not avail himself of a defense based on his reasonable belief.

In the opening brief, petitioner argues that the Hearing Officer ignored his testimony that he observed no signs or exclamations indicating that Roe disapproved of the digital penetration. (AR 743, 897-98; Opening Br. at 8:26-9:11.) However, the Policy states: “Consent cannot be inferred from silence, passivity, or lack of verbal or physical resistance.” (AR 93.) Petitioner thus cannot rely on any lack of express disapproval from Roe in arguing that his perception of Roe’s consent was reasonable.

In the reply, petitioner argues that a reasonable inference of Roe’s agreement to engage in sexual activity while in the “doggy style” position, i.e. facing away from petitioner, “is that some form of penetration would continue.” (Reply at 3:27-4:4.) Petitioner also argue that the Hearing Officer did not address the issue of revocation of consent. (Reply at 7:7-12.) Petitioner’s arguments are expressly contradicted by the Policy, which provides: “Consent to one form of sexual activity does not imply or constitute consent to another form of sexual activity.” (AR 93.) Accordingly, petitioner was not entitled to infer that Roe’s consent to penile-vaginal intercourse constituted consent to digital penetration.

For the foregoing reasons, substantial evidence supports the Hearing Officer’s finding that petitioner was responsible for sexual assault by digital penetration. (AR 763.)

With respect to the finding that petitioner subjected Roe to unwelcome sexual contact during the Second Incident, petitioner argues that Roe did not clearly define her boundaries before the Second Incident and that she previously accepted similar conduct before that night.

Substantial evidence supports the Hearing Officer’s finding that petitioner was responsible for sexual harassment. (AR 765-68.) During the hearing, petitioner admitted that Roe told him that she didn’t want to “hook up” again but said the two could remain friends. (AR 831, 899-900.) Despite having been told that Roe no longer wanted to have sex with petitioner, petitioner sat down next to Roe and grabbed Roe by the hips after she stood up. (AR 213-15.) Petitioner touched her to “feel out that new dynamic,” i.e., them as friends, and to avoid questions from others regarding his status with Roe. (AR 307-08.) Further, during the hearing, petitioner admitted that he attempted to dance with Roe but got the impression Roe did not want to dance with him. (AR 899.) Petitioner recalled that Roe acted “noticeably colder towards [him] that night.” (AR 831.) Petitioner thus understood his conduct toward Roe to be unwelcome.

Further, Bernstein observed petitioner trying to get Roe’s attention or dance with her throughout the evening. (AR 603-04.) Bernstein testified that he witnessed petitioner having his hands around Roe’s waist and touching her stomach area, touching which she did not reciprocate. (AR 610-11, 923-24.) Bernstein stated that Roe’s “facial expressions looked like that she was very uncomfortable. You could tell that she wasn't touching him back.” (AR 924; see also AR 603-04, 610-11 [investigatory interview of Bernstein].)

Bernstein also described how the incidents, including both the First and Second Incidents, made Roe feel: “She described it as being traumatizing, horrible. She’s scared to walk around campus. She’s scared to be here in general. Being here just makes her scared. She had to go home a bunch of times this year. She’s scared to go to class because fear of seeing him, scared of going to the dining hall, and fear of seeing him. Scared of leaving her dorm from the fear of seeing him…. [B]asically she felt like she missed out on her whole freshman year because of this, it grew into her whole freshman year because she wasn't able to interact with people socially, properly after, missing events and stuff. She wasn’t able to make friends.” (AR 624.) Bernstein’s account is consistent with Roe’s statement to the Investigator: “I can't be at USC if he’s here. I fully can’t. This place makes me so sad. I want to be home right now because I’m scared to just walk everywhere and to run into him. Before Thanksgiving, I ran into him. I turned and almost ran into a building. I’d rather hurt myself running into a building than running into him. I really can’t be here if he’s here.” (AR 205.)

Boyejo told the Investigator that he witnessed petitioner “still touching [Roe] like they were in a relationship,” including one instance in which petitioner touched or grabbed Roe around her waist. (AR 344.) Boyejo perceived Roe as not wanting to be around petitioner. (AR 344.) The Hearing Officer stated that Boyejo’s observations occurred between September 5 and September 17. (AR 752.) The date of Boyejo’s observations is unclear from the transcript of the investigatory interview. When the Investigator asked Boyejo when he made these observations, Boyejo replied that he was not sure but that by September 18, 2021, it was clear that petitioner was acting as if he and Roe were in a relationship. (AR 344-45.) In the reply, petitioner notes that, after the investigatory interview, Boyejo emailed the Investigator stating that he only heard about the unwanted advances from Roe and that he did not witness the advances. (AR 372.) Even though it is unclear whether Boyejo observed petitioner’s touching of Roe during the Second Incident or at all, Boyejo’s testimony is still evidence that petitioner’s touching of Roe was objectively and subjectively unwelcome.

Based on the foregoing, notwithstanding whether Roe accepted touching of a sexual nature prior to the Second Incident, Roe told petitioner prior to the Second Incident that she no longer wanted a sexual relationship. Petitioner nevertheless touched Roe, which was both subjectively and objectively severe, pervasive, and offensive, particularly when considered in conjunction with the First Incident. For the foregoing reasons, substantial evidence supports the Hearing Officer’s finding that petitioner was responsible for sexual harassment.

Petitioner maintains that he had no notice that he faced expulsion or suspension as a result of the violations of the University’s Policy. However, the Policy expressly states that sanctions imposed upon students can include suspension or expulsion. (AR 139.) Petitioner was provided the Policy when he was notified of the investigation. (AR 157.)

Petitioner also argues that that, based on the initial decision to expel him, the Sanctioning Panel did not consider the character reference letters he submitted. (AR 1090-1104.) However, the Policy only allowed petitioner to submit and the Sanctioning Panel to consider “a written statement explaining any factors that the Respondent believes should mitigate or otherwise be considered in determining the sanctions(s) imposed.” (AR 138.) The Sanctioning Panel considered the mitigation statement submitted by petitioner. (AR 1105-06, 1109, 1115.) The Sanctioning Panel thus acted in accordance with the Policy and reached the decision to expel petitioner. (AR 138-39, 1115-17.)

Petitioner contends that the Sanctioning Panel’s assertion that he failed to show remorse is inaccurate. The decision on sanctions states that petitioner’s mitigation statement “did not appear to be an acceptance of responsibility.” (AR 1116.) In the mitigation statement, petitioner asserted that he should not be punished when the only evidence is conflicting testimonies from petitioner and Roe and Roe’s story was “glaringly inconsistent.” (AR 1105.) Petitioner never acknowledged having sexually assaulted and harassed Roe. Further, in petitioner’s written appeal, petitioner continued to assert that there was no concrete evidence and that Roe’s accounts were inconsistent. (AR 1118.) While petitioner did not deny Roe experienced pain or trauma, petitioner essentially apologized for the way Roe felt without acknowledging that he was the cause of such feelings. Put simply, petitioner’s statement that he is sorry Roe feels hurt is not an acceptance of responsibility.

If reasonable minds can differ with regard to the propriety of the disciplinary action, there is no abuse of discretion. (County of Los Angeles v. Civil Service Commission (1995) 39 Cal.App.4th 620, 634.) With respect to the impact on the reporting party, which is one of the factors to consider in deciding an appropriate sanction (AR 138), Roe wrote in her impact statement:

The night of september [sic] 5th and the sexual harassment that followed resulted in me being hurting physically and mentally. I have been diagnosed by two therapists with severe depression and PTSD. Additionally, my anxiety and stress has impacted my physical health. In the past year I have had several flare ups of my IBS and had to be hospitalized due to lower abdominal pain…. Being on the same campus as the respondent and seeing him while walking to and from class put me in a state of constant fear. Fear for my safety resulted in me having panic attacks and not being able to sleep.

(AR 1088.) Based on petitioner’s impact on Roe, along with the nature and severity of his conduct and his refusal to accept responsibility, the Court does not find any abuse of discretion with respect to the imposition of a three-year suspension. (See Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, 228.)

[1] Local Rule 3.231(i)(2) provides: “The parties should cite to specific pages of the record (e.g., AR 56-57) and avoid block cites (e.g., AR 56-275).” In respondent’s Statement of Facts, respondent provided block citations instead of citing to specific pages. As one of many examples, on page 3, line 1 of the amended opening brief, respondent cited to AR 169-208, the entire transcript of Jane Roe’s investigatory interview. The interview concerned Roe’s allegations against petitioner regarding incidents that took place on September 5 and 17 of 2021. However, page 3, line 1 only concerned the September 5 incident and only two pages of Roe’s interview supported the sentence preceding the citation on page 3, line 1. Respondent is admonished to cite to specific pages in the future.

[2] Alleged policy violations included: Title IX Sexual Harassment; Sexual Assault; Dating Violence; Sexual and/or Gender-Based Harassment; Student Conduct Code 11.33.A (unauthorized entry into, presence in or use of University premises or property); and Student Conduct Code 11.36.A (causing physical harm to any person(s)). (AR 145.)

[3] The Hearing Officer also found that petitioner was not responsible for an allegation of Sexual Assault-Sexual Intercourse. (AR 762.) Specifically, the Hearing Officer determined that while the parties agreed that they engaged in penile-vaginal intercourse during the First Incident, there was sufficient evidence to conclude that petitioner obtained Roe’s affirmative consent prior to engaging in penile-vaginal sexual intercourse and/or a person in petitioner’s position could have reasonably believed that Roe consented to the sexual activity. (AR 762.)

[4] The Hearing Officer also found that petitioner was not responsible for a related allegation of Dating Violence in part due to the lack of evidence by a preponderance that petitioner’s actions were violent as opposed to the result of poor nail hygiene, carelessness, or sexual inexperience. (AR 764.)

[5] On November 14, 2013, the Court ordered as follows: “If the administrative record exceeds 450 pages, counsel are to prepare a joint appendix consistent with the court’s guidelines. The administrative record may be in electronic form; however, the joint appendix is to be a hard copy.” In the Notice of Lodging of Administrative Record, petitioner acknowledges that the administrative record is 1,152 pages. Despite the administrative record exceeding 450 pages, no joint appendix was submitted. Although the Court has reviewed the administrative record to prepare this ruling, the parties are admonished to comply with the Court’s express directions concerning the joint appendix in the future.