Satterlee Hall on the campus of SUNY Potsdam.

The New York Court of Appeals is scheduled to hear arguments later this week in a case of alleged sexual assault that has blurred the lines on what qualifies as consent between students. 

The case involves two persons who were students at the State University of New York at Potsdam.

Benjamin Haug was accused of sexual assault and expelled from SUNY Potsdam in 2014. The Appellate Division, Third Department annulled his expulsion, saying the school’s decision was not supported by “substantial evidence.”

Lloyd Grandy from The Carlisle Law Firm P.C. in Ogdensburg, New York, represented Haug. SUNY Potsdam was represented by New York state Assistant Solicitor General Brian Ginsberg.

There was a set of facts on which Haug and the accuser agreed.

They were both students at SUNY Potsdam who had known each other in high school. He was returning to his dorm from a night of drinking when he ran into the alleged victim. She invited him up to her dorm room, where they had sex. Their stories differ from there.

The accuser told police after the encounter that she “froze up” as they began to have sex and did not verbally or physically consent. She said she had removed her shirt but said Haug removed her pants without asking permission, according to the Appellate Division decision.

She initially did not give police the identity of her alleged assailant and did not consent to a sexual assault examination, but an anonymous tip led authorities to Haug. He was suspended for the rest of the semester following a disciplinary hearing and was ordered to complete an alcohol treatment program.

Haug appealed the decision to the SUNY Appellate Board. The board not only affirmed the decision from the disciplinary hearing but also increased his penalty from suspension to  outright expulsion. According to an opinion by Appellate Division, Third Department, that decision was made by Kristin Esterberg, president of SUNY Potsdam.

In a split 3-2 decision, the Appellate Division said SUNY did not have “substantial evidence” to expel Haug based on the definition of consent spelled out in the university’s student code of conduct. According to that definition, consent 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 alleged victim of the assault did not testify at the disciplinary hearing, but her account was detailed in written notes prepared by the college’s director of student conduct and community standards. The notes did not give much detail beyond what was already known.

The Appellate Division said in its decision that the account of what happened does not contradict the college’s definition of consent.

“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 majority said.

According to the majority opinion, Haug also said at the hearing that he had asked the accuser if she had any condoms. Haug said that she responded in the negative, but that she had said it was “fine.” Haug also said after they had sex that the alleged victim asked him if he “had fun,” according to the decision.

“Simply put, [Haug’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,” the majority said.

The three members of the Third Department panel who rejected the SUNY Appellate Board’s decision were Justice Eugene Devine, who wrote the opinion, and Justices Sharon Aarons and Karen Peters.

Justice Christine Clark wrote the dissent, which Justice Michael Lynch joined.

The three female justices serving on the panel split 2-1 against the SUNY Appellate Board’s decision backing the expulsion of Haug. The two male justices were also divided.

Clark wrote that Haug’s testimony showed he was even unsure whether the alleged victim had consented to have sex with him. According to the dissent, Haug testified that he told the alleged victim he was “worried” and “didn’t know if she had reported [him]” after a campus-wide rape alert went out.

Clark also said that Haug testified to consuming a “ridiculous” amount of alcohol before having sex with the alleged victim and that he conceded he was “unable to decide what was smart.”

She also wrote that the majority’s concern over Haug’s expulsion was unfounded because Esterberg could have just as easily enforced a stricter penalty even if the Appellate Board had maintained a suspension.

One interesting disagreement between the justices centered around Haug’s reputation and future job prospects. The majority wrote that it had considered “the significant impacts that the determination could have upon [Haug’s] reputation as well as his educational and job prospects.”

Clark wrote that such matters should not be factored into the decision, since it was primarily about the procedural arguments of the situation.

The incident that led to the legal action took place well before the public reckoning of several government officials and celebrities accused of sexual harassment and assault in the #MeToo era. Haug was a freshman at SUNY Potsdam in 2014, more than three years before the #MeToo movement gained widespread attention through social media following accusations of sexual misconduct against film mogul Harvey Weinstein.

A phone message left with Grandy’s law office was not immediately returned.

Court papers, aside from the Appellate Division opinions, were sealed.

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