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An attorney for a former student at the State University of New York at Potsdam argued before the Court of Appeals on Thursday that his client’s testimony about an alleged case of sexual misconduct should have been given equal weight against hearsay testimony from his accuser.

Lloyd Grandy, an attorney from Ogdensburg, argued that the testimony of his client—the former student—at a disciplinary hearing in 2014 should not have been dismissed simply because it was contradicted by the alleged victim’s account.

Grandy was arguing for the high court to affirm a split 3-2 decision from the Appellate Division, Third Department, in which the majority said SUNY lacked substantial evidence to expel freshman Benjamin Haug after another student accused him of sexual assault.

Haug and the accuser 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 and an official at the college 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 first asking permission, according to the Appellate Division decision.

Thursday’s arguments did not focus on whether Haug had obtained consent from his accuser. The Court of Appeals, instead, is considering whether the college had enough evidence to show a lack of consent and therefore sexual misconduct.

Assistant Solicitor General Brian Ginsberg, who appeared for SUNY Potsdam, argued that enough material was introduced at the disciplinary hearing to make a credible determination of sexual misconduct against Haug.

“I think there was enough material here to make a credibility determination,” Ginsberg said. “Here it wasn’t just a plain, written statement from the alleged victim submitted and that’s it.”

Haug was not charged criminally after the alleged assault, but was asked to attend a disciplinary hearing by the college. His accuser did not attend the hearing, which she is allowed to do.

Instead, the police officer and college official who recorded her account of the alleged assault testified to what she told them. Haug also corroborated much of her story during his testimony. Ginsberg said the college’s decision to penalize Haug was justified, in part, because the alleged victim’s account, as repeated by the witnesses, was not challenged.

“Even though she does not appear in person … there were ways, albeit indirectly, to assess her credibility,” Ginsberg said. “Petitioner did not take the board up on any of those ways.”

Haug could have, for example, asked the witnesses to describe his accuser’s demeanor or behavior while she repeated her account of what happened, Ginsberg said. He did not.

Grandy said that shouldn’t matter because much of what Haug said during his testimony matched his accuser’s story. Judge Leslie Stein asked if this case would set a precedent, if they side with Haug, where the alleged victim would always be required to appear for a cross-examination to show credibility.

“I don’t think so because in this particular case, if you look at the facts … the part everyone agrees to, both from the live testimony and from the hearsay testimony that was put in I think gets us to a position where if you believe all of that—and there’s no reason not to—you don’t have a conduct violation,” Grandy said.

Judge Jenny Rivera suggested that a text message sent by Haug to the alleged victim the day after they had sex may have given the college enough evidence for misconduct. Haug had 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, according to the Appellate Division decision.

“Isn’t the rest of his conduct, the rest of what he says the next day tilt this in favor of the victim at that point, and that gets you the substantial evidence?” Rivera said.

“I would disagree with that because of the age of the person we’re dealing with, the naivety of the person we’re dealing with, and again because of the onerous that goes with allegations of this nature,” Grandy said.

Grandy also argued that SUNY did not consider parts of Haug’s account that would have worked in his favor, such as him asking his accuser if she had a condom. She allegedly said she did not but that it was “fine.”

“That’s a really important detail that goes heavily to what happened,” Grandy said.

Ginsberg said on rebuttal that Haug’s testimony, particularly about the text message, showed consciousness of guilt about what had happened that could be enough evidence for the college to penalize him.

“There you have affirmative evidence affirmatively establishing or at least allowing a reasonable fact finder to conclude that there was no affirmative consent on these facts,” Ginsberg said.

The case will likely be decided next month.

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