Satterlee Hall on the campus of SUNY Potsdam
Satterlee Hall on the campus of SUNY Potsdam (Jondude11/WIKI)

ALBANY – The expulsion of a male student from a State University of New York campus after he had a sexual encounter with a female student that may have been consensual was too harsh, a divided state appeals court ruled Thursday.

The 3-2 majority of the Appellate Division, Third Department, panel said in Haug v. State University of New York at Potsdam, 522632, that many aspects of the disciplinary process at SUNY-Potsdam as it was applied to Benjamin Haug “give us pause,” beginning with the fact that the female student’s account of the encounter as presented at campus disciplinary proceedings was hearsay.

While she initially reported the incident as a sexual assault to campus police within a few hours after it happened on Sept. 7, 2014, Justice Eugene Devine noted that the woman acknowledged that she had not declined to engage in sex with the male student nor provide any “gesture saying that [the encounter] wasn’t welcome.”

Nevertheless, the court noted that Haug was found guilty before a campus disciplinary board of sexual misconduct, suspended for the remainder of the semester and made to take an alcohol evaluation and treatment program. When Haug appealed, the campus disciplinary appeals board increased the penalty to expulsion and Potsdam president Kristin Esterberg affirmed Haug’s dismissal.

Devine said that between Haug’s description of events and the hearsay from the female student, the facts weren’t there to uphold Haug’s expulsion for violating SUNY’s code of student conduct as it applies to sexual activities.

“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 [expulsion] determination,” Devine wrote in a decision in which Presiding Justice Karen Peters and Justice Sharon Aarons joined.

In dissent, Justice Christine Clark said that while the female student failed to indicate affirmatively her opposition to having sex with the male student, she also verbally did not ever consent to the sexual encounter. Clark wrote that the SUNY student code of conduct requires that there be affirmative consent between students, either in “spoken words or behavior that indicates, without doubt to either party, a mutual agreement to participate” in sexual conduct.

Clark’s dissent, in which Justice Michael Lynch joined, also noted that Haug said he had consumed a “ridiculous” amount of alcohol on the night of the encounter and may not have recalled all the events with precision.

The dissenters said they would uphold the expulsion determination.

SUNY-Potsdam was represented by assistant state attorney general Brian Ginsberg. Campus officials did not respond Thursday to requests for comment.

Lloyd Grandy II, an attorney at the Carlisle Law Firm in Ogdensburg, represented Haug. Grandy said in an interview Thursday that while the court overturned the expulsion of his client, it is doubtful that Haug would ever choose to return to the northern New York school.

Haug was a freshman enrolled in Potsdam’s premier department, the Crane School of Music, when he was dismissed.

Grandy said that to a large extent, the damage to his client’s reputation is already done, whatever the outcome of the legal case.

“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,” Grandy said. “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 said he felt the more severe penalty of expulsion was meted out against Haug because the student had the “audacity” to challenge the initial punishment from the disciplinary panel.

Criminal charges were never brought against Haug in connection with the incident, Grandy said.