Sexual Assault on Campus, the Ongoing Saga

At Yale, the latest blow-up in the ongoing war over sexual assault on campus and what universities can do about it. NY Times:

In a 2018 disciplinary hearing at Yale University, Saifullah Khan listened as a woman accused him of raping her after a Halloween party.

The woman, who had graduated, gave a statement by teleconference to a university panel, but Mr. Khan and his lawyer were not allowed in the room with the panel. Nor could his lawyer, under the rules of the hearing, cross-examine her.

Instead, they were cloistered in a separate room, as her testimony piped in by speakerphone. He felt, he said, “there is absolutely nothing I can do to change my situation.” As he feared, Yale expelled him.

Mr. Khan’s criminal trial, months earlier, was markedly different. His lawyer cross-examined the woman in ways that horrified women’s rights advocates: How were you dressed? How much did you drink? Did you send flirty texts? And unlike the Yale hearing, the prosecutors had to prove his guilt “beyond a reasonable doubt.”

The difference between those two hearings — in process and outcome — led Mr. Khan to make an unusual move: He sued his accuser for defamation for statements she had made during the Yale hearing. That lawsuit, filed in 2019, is challenging the way universities across the country have adjudicated such sexual assault hearings.

It is not some patriarchal plot that makes rape cases difficult to try. It is a very old principle of Common Law, originating in the Statute of Treasons enacted under Edward III, that no one can be convicted of a felony on the basis of one witness's unsubstantiated testimony. Since in most rape cases there is only one witness, the victim, the desire to get justice for rape victims runs smack against one of the pillars of legal fairness in our system. 

One of the compromises we make in America is to allow prosecutions to proceed based only on the victim's testimony, but only if the victim submits to wide-ranging cross-examination that will establish to the jury (on this theory) whether the witness is credible. Of course this is a sham, in that juries are no better than anyone else at recognizing who is lying. As a basic matter of epistemology it is, I think, all but impossible for us to ever really know what happened in case where the only evidence is the testimony of two witnesses who disagree. But that is how we do it.

Of course university disciplinary hearings are not criminal trials but civil proceedings, so they are not bound by the standards of evidence in the criminal law. Among other things, they do not allow the cross-examination of witnesses. But this introduced another twist into the Yale case. It is another old matter of common law that you cannot file a suit for defamation because of testimony given under oath in a trial; perjury is a criminal matter that only the state can prosecute. But since the Yale hearing was not a trial, well:

Normally, such a lawsuit would not have much of a chance. In Connecticut and other states, witnesses in such “quasi-judicial” hearings carry absolute immunity against defamation lawsuits.

But the Connecticut Supreme Court in June gave Mr. Khan’s suit the greenlight to proceed. It ruled that the Yale hearing was not quasi-judicial because it lacked due process, including the ability to cross-examine witnesses.

“For absolute immunity to apply under Connecticut law,” the justices wrote, “fundamental fairness requires meaningful cross-examination in proceedings like the one at issue.”

Since cross-examination was not allowed, said the court, the Yale hearing was not even “quasi judicial” and thus merits no real respect from the law.

If you want the details of the original incident, the Yale Daily News has them here. This story also mentions that Khan is suing the university for $110 million and the grounds that he was expelled without being allowed to properly defend himself against the rape accusation. This is what his lawyer said after he was acquitted in his criminal trial:

We’re grateful to six courageous jurors who were able to understand that campus life isn’t the real world. Kids experiment with identity and sexuality. When an experiment goes awry, it’s not a crime.

Here again we run into the problem that university disciplinary hearings for sexual assault feel to the people involved like trials. The victim is seeking justice, the accused is trying to defend his life and reputation. But because they are not trials, they are not protected by any of the sacred aura that surrounds actual criminal courtrooms. Hence, at least in Connecticut, the witnesses can be sued for defamation. According to the Times story, university lawyers across the country are now trying to figure out if witnesses in their Title IX proceedings might be subject to defamation lawsuits and what they might do about it.

The root cause of this mess is having universities carry out what are in effect trials for rape. On the one hand this seems to be required by Title IX, the federal law that guarantees women equal access to education; it's hard to get an education if you're constantly worried about getting raped, and it would be bizarre for universities to sanction people for, say, verbal harassment while throwing up their hands at actual sexual assault. On the other hand, by holding what look and feel like rape trials in a setting outside a proper courtroom we enter into a netherworld where nobody seems to know what rules actually apply and what justice actually looks like.

We are nowhere near to resolving any of this.