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Apr 07

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University Student’s Sexual Misconduct Guilty Finding Based On Hearsay Tossed

On April 6, 2017 Benjamin Haug’s sexual misconduct guilty finding and expulsion from the State University of New York at Potsdam was overturned on appeal. The appeals court ruled Haug’s guilt is not supported by substantial evidence.

Haug was a freshman at SUNY Potsdam when in the early morning hours of September 7, 2014 he encountered a woman student he had been friends with for several years. Both had been drinking that night. They went to her dormitory room and had sex.

The woman later reported to the campus police she had been raped, but she refused to submit to a medical examination or name her alleged assailant. The campus police were later given an anonymous tip that identified Haug as the man she was accusing. The police were not notified about the alleged incident.

SUNY Potsdam charged Haug with sexual misconduct that violated the campus “code of student rights, responsibilities and conduct.”

During the administrative hearing the woman did not testify. Haug’s prosecution was based on the hearsay evidence of two people: the testimony of the campus police officer who took the woman’s initial rape complaint; and written notes of the woman’s interview by the campus director of student conduct and community standards.

The officer testified the woman told him 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.”

The campus director’s notes indicated that when Haug and the woman arrived at her dorm room they started making out on her bed. Haug suggested they have sex. She took off her shirt, and Haug helped her take off her pants. She didn’t reject Haug’s advances or tell him she didn’t want to have sex, but she didn’t verbally tell him she wanted to have sex.

Haug testified in his defense and admitted having sex with the woman, saying it was consensual. His testimony largely matched the evidence by the officer and the campus director, except he added that he told the woman he didn’t have any condoms and asked her if she did. She said she didn’t, but it was “fine” not to use one. He also testified she initiated the sex, and afterwards asked him if he “had fun.”

The hearing board found Haug “guilty” based on their finding the woman didn’t affirmatively consent to sex. The board decision was based on the preponderance of the evidence standard approved by the U.S. Department of Education. As punishment the board recommended Haug’s suspension for the remainder of the semester; that he be directed to complete an alcohol evaluation and treatment program; and that he write a reflective paper on appropriate sexual conduct and consent.

Haug appealed to SUNY Potsdam’s Appellate Board. The finding of Haug’s guilt was upheld, but the recommendation for his punishment was rejected and increased to expulsion.

SUNY Potsdam President Kristin Esterberg followed the recommendation and ordered Haug’s expulsion.

SUNY Potsdam President Kristin Esterberg, who increased Benjamin Haug's punishment for daring to assert his innocence. (www.potsdam.edu)

SUNY Potsdam President Kristin Esterberg, who increased Benjamin Haug’s punishment for daring to assert his innocence. (www.potsdam.edu)

Haug appealed to the courts.

On April 6, 2017 the New York Supreme Court’s Appellate Division in a majority decision reversed the finding of Haug’s guilt and sentence on the basis it wasn’t supported by substantial evidence.

The court’s ruling stated: “To begin, after considering the significant impacts that the determination could have upon petitioner’s reputation as well as his educational and job prospects, many of the procedures employed by the Hearing Board give us pause.” One of those suspect procedures was that Haug’s prosecution was based solely on hearsay evidence.

Regarding the prosecution’s evidence the court ruled, “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. … The complainant’s subsequent report of a sexual assault – in which she declined to give any details of the incident or identify the male involved and stated her lack of interest in getting the alleged perpetrator in trouble – does nothing to remedy the dearth of proof as to a lack of affirmative consent.”

After the appeals court issued it’s ruling, Haug’s attorney Lloyd Grandy II, said in an interview it was doubtful Haug would return to SUNY Potsdam, and that the damage to his reputation had already been done: “If you are going to label someone a sexual predator or a sexual aggressor, you have branded that person in a way that there is no coming back from. For the university to decide that based on very little or no evidence—you just can’t do that without facts to back it up.”

Grandy also said he thought the university increased his penalty to expulsion because Haug had the “audacity” to appeal the guilty finding and the punishment recommended by the disciplinary panel.

Click here to read the ruling in Haug v. State University of New York at Potsdam, No. 522632 (NYS Appellate Div. 3rd Dept., 4-6-17).

April 7, 2017
By Hans Sherrer
Justice Denied

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