Grad student takes Cal State San Marcos to court over sex case

Court won't grant temporary restraining order

A San Diego male, Student Doe, who was completing his master's degree at California State University San Marcos, has sued the university in federal court, claiming that the school falsely accused him of sexual misconduct, withheld his academic transcripts and degree, and denied him access to the reports of his female accuser, called "the Accuser" in the suit.

The event happened in Germany, where both were visiting students. Each was a student at a state university school. After visiting several bars, Student Doe and Accuser had sexual intercourse between 2 a.m. and 4 a.m. on June 19 of last year. She has accused him of rape, and he insists that she was not too intoxicated to give informed consent. After an investigation the university found her account credible and his not credible. Student Doe's appeal to the chancellor's office was denied. He says he has been denied his Fifth and Fourteenth Amendment rights.

He asked for a temporary restraining order that would block the university from enforcing the chancellor's orders. But on July 7, Judge William Q. Hayes ruled that Student Doe had asked for the order without informing the Accuser of the factual basis underlying his motion. Therefore, Hayes denied the temporary restraining order.

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Well this certainly is a gray area of law.

I find it interesting the no criminal complaint was filed by the Accuser before leaving Germany. I'm just wondering if Germany, a so called enlightened country, has laws against rape of a victim who is unconscious, or so impaired/intoxicated they cannot give consent. Rape by intoxication is a growing problem. SD County DA Office PSA on Rape by Intoxication

However, in the Declaratoy Relief Complaint, Student Doe paints a different picture. Due process is extremely important right. Without it we face punishment, even death without just cause. (Sorry for being too dramatic with the death comment). But this case is being handled "administratively". These are serious charges and with penalties including lifelong registration as a sex offender and substantial prison time. While no criminal complaint has been filed as far as we know, this "administrative action" typically becomes a "kangaroo court" where legal standards and or civil rights are not only abused, but ignored.

Oh, by the way, due process applies to the Accuser as well in this matter. She should have a say. Her credibility, and the weight of her testimony should be determined by those who are trained and educated in the law and have tested experience. Not some college professor or administrator who lives and works in the "protected world" of academia.

JustWondering: The Accuser was preparing to fly back to the U.S. immediately, so German authorities would not have gotten involved. The German police did tell the couple how to get back to the hostel.

These are tough cases. When does sex after drinking alcohol become rape? Best, Don Bauder

An interesting side note, NBC news reports this story: 90% of the sexual assaults are alcohol related, the report goes on about the insensitivity of the comment and the apology issued by the Education Department. What it does not dispute is the 90% claim.

"Acting Secretary for Civil Rights, Candice Jackson told The New York Times on Wednesday that in most investigations there is “not even an accusation that these accused students overrode the will of a young woman.”"

“Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,’” she told The New York Times.

Sounds eerily similar to the San Marcos case?

JustWondering: I went to a university where there was more alcohol consumption than at other universities. (This was in the '50s.) Certainly, there was a lot more sexual intercourse that involved drinking by both parties. Today, there is still probably more drinking there than at other schools. So are there more rape charges? I don't know, but it would be interesting. Best, Don Bauder

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