A state judge Tuesday dismissed a lawsuit filed against LSU by a freshman who faces possible suspension until the end of 2017 and potential criminal prosecution for allegedly recording two other students having sex in a dorm room.
Xavien Rafael Riascos’ suit asked District Judge Tim Kelley to force LSU to delay a disciplinary hearing until the conclusion of any criminal proceedings, but the judge said Tuesday there is no relief he can grant Riascos.
“There’s not a constitutional violation,” Kelley, who did not rule on the merits of the suit, said at the end of a court hearing attended by Riascos and his mother.
John DiGiulio, one of Riascos’ attorneys, said the ruling means LSU can proceed with a disciplinary hearing, which had been set for May 13 but had been postponed by Kelley. A new date has not been set.
“We contest the (disciplinary) hearing and we contest the criminal case,” DiGiulio said outside the 19th Judicial District Courthouse after the hearing. “Xavien’s not guilty.”
LSU attorney David Shelby III declined comment after the hearing.
“No billing decision has been made at this time,” East Baton Rouge Parish District Attorney Hillar Moore III said Tuesday.
DiGiulio told Kelley that LSU contacted the District Attorney’s Office and said the recorded students want Riascos and Baker prosecuted.
DiGiulio said he hopes to meet with Moore’s office before a decision on charges is made.
Riascos and Baker are accused of entering a Kirby Smith Hall dorm room through a closed door in the early morning hours of March 23 after hearing loud noises. Baker told police he thought it was “a female in danger,” according to arrest documents.
Riascos and Baker found a student/resident assistant and a woman having consensual sexual intercourse in a bathroom in the sixth-floor room.
Baker told police he and Riascos filmed the couple having sex, and that he — not Riascos — briefly posted the video to Instagram, a photo and video-sharing social networking application.
Riascos’ suit contended the engineering student’s recommended suspension of more than three years is too severe.
DiGiulio described the allegations involving Riascos as “a college prank that has turned into a sex offense.”
Shelby explained to Kelley that Riascos can have an attorney with him at the student disciplinary hearing, but the lawyer cannot question witnesses. The lawyer can help Riascos draft questions that the panel will pose to witnesses, he added.
Shelby called the disciplinary hearing “a fair and extended opportunity to get to the bottom of the situation.”
He also noted that LSU has constitutional authority to discipline students for violating the university’s code of student conduct.
“A student has the right to not testify,” Shelby said.
But DiGiulio stressed that an accused student’s silence can be used against the student, which puts the student at a “distinct disadvantage.”