MR. SCOTT: What does [mandatory student training] say about alcohol?
MR. [JOHN NOKES]: That an excess of alcohol is not — an excess of alcohol does not — you can’t give consent if you have a large amount of alcohol.
MR. SCOTT: It’s says large amount?
MR. [JOHN NOKES]: This is from my understanding, sure.
MR. SCOTT: It says alcohol. It does not say amount.
MR. [JOHN NOKES]: So with that definition — I’m honestly just asking, but that definition if everybody on this campus who takes a drink of alcohol and kisses their boyfriend or girlfriend, is that nonconsensual?
MS. VAUGHN: Potentially, yes.
The court noted that Nokes was told only three weeks earlier that he was charged with “sexual assault by the use of force or threat of force.” He was never told that he was also charged with assaulting an incapacitated student. Moreover, three key witnesses for Roe never showed up for the hearing but Vaugh insisted that she must “take this as fact. That is all true.” This included the key witness who said that she found a distraught Roe after the incident.
The school officials only made it worse by arguing that nothing could have changed their minds anyway:
Specifically, in response to Plaintiff’s argument that he would have challenged witness credibility had he been given the opportunity to cross-examine (i.e., lack of personal knowledge, memory, etc.), Defendants argue that Plaintiff “was able to do all of these things himself through his statements to the Hearing Panel.” … Defendants miss the point of cross examination, which allows the fact-finder to assess witness demeanor and responses in order to “assess the credibility of those who disclaim any improper motivations.” … If anything, Defendants’ claim that no amount of cross-examination could have changed the minds of the hearing panel members arguably undercuts the fairness of the hearing Plaintiff received.
The decision will hopefully further calls for a reexamination of university rules in such cases and the return of core due process rights for students and faculty accused of wrongdoing.