NY Court of Appeals reinstates sexual misconduct finding against SUNY student

Student disciplinary hearings over alleged sexual misconduct make the news from time to time. When these allegations are resolved by public colleges instead of law enforcement, the process is open to criticism because the administrative hearings are not like criminal trials in that the evidentiary and procedural standards are relaxed. This case highlights that issue. The New York Court of Appeals holds that hearsay evidence was enough to support an adverse finding against the male student.

The case is In the Matter of Haug v. State University of New York at Potsdam, decided on October 18. The Appellate Division Third Department summarized the evidence this way:

Petitioner was a freshman at respondent State University of New York at Potsdam (hereinafter SUNY) in September 2014. In the early morning hours of September 7, 2014, he ran into a female student (hereinafter the complainant) with whom he had been friends for several years, and the two had sex in her dormitory room. The complainant reported to campus police shortly afterward that, while she had not declined to engage in sex and gave no “gesture saying that [the sexual encounter] wasn't welcome,” she had been sexually assaulted. She refused to reveal the identity of her assailant or submit to a sexual assault examination, but an anonymous tip subsequently pointed to petitioner as the assailant.

 The male student was originally suspended from school, but the college president determined to expel him. The Appellate Division ruled in the male student's favor, reasoning that the college lacked substantial evidence to support the adverse findings.

As set forth in the student code of conduct, consent to sexual activity cannot be inferred from silence and must flow from “spoken words or behavior that indicates, without doubt to either party, a mutual agreement to” proceed. The complainant's account was set forth by others who had conversed with her, with the Hearing Board considering written notes prepared by respondent Annette Robbins, SUNY's director of student conduct and community standards, and the hearing testimony of a campus police officer.

The complainant told Robbins that petitioner was a friend and that, after running into him on the night in question, she invited him to her dorm room. Petitioner tried in some manner to touch her once they got to the room, then locked the door and led her to bed. The two began “making out” on the bed and, while the complainant stated that she did not verbally consent when petitioner suggested that they have sex, she did take her shirt off. Petitioner took the complainant's pants off and had relations with her without wearing protection. The complainant indicated that she “froze up” and did “not respond” to petitioner's advances, although the record does not reveal how this inner turmoil was manifested or whether petitioner was or should have been aware of it. The Hearing Board found from this that the complainant did not affirmatively consent to having sex and that, as a result, petitioner engaged in sexual misconduct.

The Third Department goes on to state that "it is not clear to us that a reasonable person could find from these hearsay accounts an absence of 'behavior that indicate[d], without doubt to either party, a mutual agreement to participate in sexual intercourse,' as to do so would require overlooking the complainant's admission that she removed her shirt when sex was suggested. Indeed, the only path to finding a lack of consent under these circumstances would be to make inferences that do not reasonably follow from the hearsay accounts of what the complainant said, such as that petitioner intimidated her into agreeing to proceed or that the manner in which she 'froze up' should have caused petitioner to question her apparent willingness to engage in sex."

Hearsay is permissible in most state administrative hearings. In this case, the Third Department said,  the male student and the female complainant offered different accounts on the issue of consent.

Petitioner specifically stated that they began kissing after talking and that, after a while, the complainant took off both of their shirts. Petitioner then removed the rest of their clothing and asked the complainant if she had any condoms, to which she replied that she did not but that it was “fine” and no reason to worry. The complainant then straddled petitioner from above while they had sex and, after it was over, asked petitioner if he had fun. Simply put, petitioner's testimony seriously controverted the hearsay evidence indicating that the complainant had not given affirmative consent to sexual relations and, as a result, that hearsay proof did not constitute substantial evidence to support the determination.

Since Appellate Division authority holds that “when the hearsay evidence is seriously controverted, common sense and elemental fairness suggest that it may not constitute the substantial evidence necessary to support the [challenged] determination,” the Third Department vacated the findings of guilt against the student and further questioned whether the penalty of expulsion was fair.

The Court of Appeals reverses the Appellate Division's reasoning, noting that the substantial evidence test is "minimal" and "is less than a preponderance of the evidence." The Court says that the hearsay evidence along with the male student's testimony provided substantial evidence to support the finding that he violated the code of conduct. Since it was the province of the hearing board the college to weigh the evidence and resolve any conflicts in the evidence, the Appellate Division improperly re-weighed the evidence when its reversed the college's findings of guilt.