New York Court of Appeals building. New York Court of Appeals building. Photo by Rick Kopstein

The #MeToo movement exposed a shadowy injustice hidden for too long because of the power and presumed untouchability of its perpetrators. Once finally exposed by courageous victims, people couldn’t distance themselves fast enough from bloated movie moguls, TV executives and others. Correcting such outrages is the measure of a just and democratic society.

As with all such social movements, however, there is always a danger of an over-reaction which can create another injustice.

That danger is present in our current climate, especially in the sexually active arena of college campuses. One such case was recently decided, erroneously in my view, by the New York Court of Appeals.

In Haug v. SUNY Potsdam, 2018 N.Y. Slip Op 06964 (Oct. 18, 2018), the Court of Appeals reversed a finding by the Appellate Division, Third Department, and held that hearsay evidence can support findings of sexual assault on campus even where such hearsay evidence is contradicted by live testimony.

The undisputed facts are these. Haug was a freshman on the Potsdam campus in September 2014. He had been friends with the female student involved, as the Appellate Division notes, “for several years.” He encountered the female student on the campus early one morning, she invited him to her dorm room, and the pair had sex. Shortly after, she reported the event to campus police, stating that although she had not said “no” to intercourse and had made no gesture indicating her lack of consent, she had been sexually assaulted. She declined to give any details about the assault or to identify the male involved, and stated her unwillingness to get the ostensible perpetrator in trouble; she also refused to have any physical evidence collected at the scene. An anonymous tip subsequently identified Haug as the assailant.

The State University of New York (SUNY) charged Haug with sexual misconduct in violation of its student code of conduct and held a disciplinary hearing at which the female student did not appear. The SUNY Hearing Board found him guilty of sexual misconduct; the Board recommended that Haug be suspended for the balance of the semester, that he complete an alcohol evaluation and treatment program, and write a reflective paper about proper sexual conduct and consent.

Haug appealed to SUNY’s on-campus Appellate Board, which not only rejected his contentions, but sua sponte increased the penalty to be imposed to expulsion. Haug then started an Article 78 action against the college.

The Appellate Division, Third Department issued a ruling which annulled the decision of the SUNY Board. Matter of Haug v. SUNY of N.Y. at Potsdam, 149 A.D.3d 1200 (2017).

The Appellate Division found that “many of the procedures employed by the Hearing Board give us pause” but that they could not address these procedural due process flaws because no timely objections had been made at the administrative level (presumably, Haug was not represented by an attorney through the campus administrative hearing process). Id. at 1201. The Third Department could, however, consider whether the administrative decision was supported by substantial evidence. This they did and found that it was not.

A problem the Appellate Division found was that the administrative decision of the Hearing Board was based upon hearsay evidence. The evidence presented on behalf of the female student was given by SUNY’s director of student conduct (Annette Robbins) and a campus police officer, both of whom had interviewed the female student. Robbins apparently presented evidence through written notes she had made, and the police officer testified.

The female student told Robbins that Haug was a friend and that she had invited him to her dorm room after she had encountered him on campus. Haug tried to touch her once they got to the room, then locked the door and led her to bed; the pair began kissing on the bed. Haug suggested that they have sex; the female student stated that she did not verbally consent but that she did take her shirt off. Haug removed the female student’s pants and the pair had intercourse. The female student reported that she “froze up” and did not “respond” to Haug’s advances. The Appellate Division noted on this point that “the record does not reveal how this inner turmoil was manifested or whether [Haug] should have been aware of it.” Id. at 1202.

The campus officer testified at the Hearing that the female student did not tell Haug “no,” and did not give any gesture indicating his advances weren’t welcome; the officer also testified that the female student declined a rape kit and did not want any evidence collected at the scene.

It was upon this evidence that the Hearing Board found that the female student did not consent to sex and that Haug had committed sexual misconduct.

The Appellate Division held it was doubtful that a reasonable person could conclude from the hearsay evidence presented that there was an unequivocal expression of lack of consent to sexual activity, and that to find a clear lack of consent “would require overlooking the [female student’s] admission that she removed her shirt when sex was suggested.” Matter of Haug v. SUNY of N.Y. at Potsdam, 149 A.D.3d 1200, 1202. The court also found that the female student’s subsequent report of sexual assault, when she refused to provide any details of the incident or to identify the male involved, and stated her unwillingness to get him in trouble, did nothing to remedy the absence of any affirmative proof of a lack of consent.

In addressing the evidence presented at the campus hearing by Haug, the Appellate Division further found that when 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. Id. Haug had testified at the Hearing that the pair had begun kissing after talking and that after some time the female student removed both of their shirts. Haug then removed the rest of their clothing and asked the female student if she had any condoms. Her reply was she didn’t but that it was fine and there was no reason to worry. The female student then straddled Haug while they engaged in intercourse, and, after it was over, asked Haug if he had had fun.

Balancing the hearsay evidence against the testimonial evidence provided by Haug, the Appellate Division held that:

[Haug’s] testimony seriously controverted the hearsay evidence indicating [the female student] had not given affirmative consent to sexual relations and, as a result, that hearsay proof did not constitute substantial evidence to support the determination

Id. at 1203.

In what is—in my view—a poorly reasoned and erroneous decision, the Court of Appeals reversed the Appellate Division, citing established precedent that courts may not disturb the findings of administrative tribunals—in this case the finding of the campus Hearing—except to ensure that such decisions are supported by “substantial evidence.” It is on precisely this point of “substantial evidence” that the Appellate Division and the Court of Appeals disagree.

The Court of Appeals issues several paragraphs of reasoning and case citation in support of its ruling that there was sufficient “substantial evidence” to support the administrative finding, but none of it is persuasive and the quoted precedent seems a tacit admission by the Court that it is aware that the quantum of proof presented at the campus Hearing falls well below commonly acknowledged standards of reasonable proof:

We emphasize that the substantial evidence standard is a minimal standard. It is less than a preponderance of the evidence and demands only that a given inference is reasonable and plausible, not necessarily the most probable … . Where substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently. Often there is substantial evidence on both sides of an issue … . Where substantial evidence exists to support a decision being reviewed by the courts, the determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions (emphasis added).

The Court of Appeals here first holds that there is substantial evidence, an admittedly low standard—but just enough—to support the finding of the campus court, but then appears to metaphorically throw up its hands to concede that while there can be substantial evidence on both sides of a dispute, they can’t step in and adjudicate it or resolve the conflict between the substantial evidence on both sides because they must not interfere with the findings of an administrative tribunal. This appears to be an abdication of responsibility and unnecessary deference to administrative bodies by the premier Court in the State of New York solemnly charged with interpreting the law and upholding the rights of New Yorkers under both the state and federal constitutions.

Regarding the hearsay evidence, the Court of Appeals goes on to hold that:

hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds. Contrary to [Haug’s] argument, the hearsay evidence proffered at the administrative hearing, along with [Haug’s] testimony, provides substantial evidence in support of the finding that he violated [Potsdam’s] code of conduct … Ultimately, it was the province of the hearing board to resolve any conflicts in the evidence and make credibility determinations. The Appellate Division improperly engaged in a reweighing of the evidence when it substituted its own factual findings for those of the respondents.

Court of Appeals Justice Eugene M. Fahey was the lone dissenter to the case, holding that he would have affirmed and granted the petition for the reasons stated in the Third Department’s decision.

The precedent the Court of Appeals has now created holds that in New York campus accusers can allege sexual assault and these accusers need not be present at any subsequent on-campus hearings, and further that the accused’s rights are not violated when they are accused of sexual assault on the basis of hearsay evidence alone, while the accused has no opportunity to confront his accuser or attempt to refute the accusation by means of cross-examination. Further, when students so accused are “convicted” by campus administrative hearings, their ability to appeal such a “conviction” will be quite difficult as long as the campus hearing’s findings are based upon the exceedingly low standard of “substantial evidence” now endorsed by the Court of Appeals in Haug. This is a decision which violates fundamental due process rights that every first-year law student learns about in Civil Procedure class.

Could it be that the well-meaning justices on the Court of Appeals have succumbed to the ephemeral winds of feeling and in so doing have apparently overlooked basic canons of fundamental legal procedure developed over hundreds of years of legal practice? In their laudable desire to support victims of the #MeToo movement, the justices have overlooked the rights of potentially innocent victims of false accusations by upholding a low evidentiary standard of proof and by limiting an accused’s ability to refute such allegations or prevail on appeal. If young men commit sexual assault, they should be punished, and criminally if warranted. But any such punishment should follow from evidence gathered pursuant to our time-tested due process safeguards.

The Appellate Division got it right and the Court of Appeals got it wrong. Haug v. SUNY Potsdam should be short-lived precedent destined to be overturned by a subsequent and more reasonable decision by the court itself, or, more likely, by a federal court adjudicating the question of fundamental due process under the U.S. Constitution.

Maurice J. Recchia is of counsel at Russo & Toner. The views expressed are the author’s and do not necessarily represent the views of the firm.