The New York Appellate Division, Third Department, majority was not going to delve into the explicit, lurid details of the sexual encounter between the accuser, whom they called the “reporting individual” rather than the accuser or victim, and Matthew Jacobson.
Both were students at SUNY Plattsburgh. Both were drinking. Both had sex. Three times that night. What more do you need to know?
A close reading of the statements reveals that there was no material factual conflict between the relatively consistent accounts given by the participants. To illustrate, neither participant was able to recall which one initiated the sexual activity and certainly both conceded that they had been drinking. Given this consistency, there is no need to further detail the conduct at issue.
Who can blame the judges for finding further discussion of the nitty-gritty of young sex distasteful, so they just glossed over the whole thing.
In the early morning hours of October 31, 2015, petitioner, who was a student at the State University of New York at Plattsburgh (hereinafter SUNY), engaged in sexual intercourse with a female student (hereinafter the reporting individual) in her dorm room on three different occasions over an approximately seven-hour period. Five days later, the reporting individual
went to SUNY’s health center and reported that she had been sexually assaulted.
So what then made this a sexual assault?
Therein, petitioner was notified that Blaise was charging petitioner with violating two provisions of SUNY’s Student Conduct Manual because “[i]t was reported that on 10/31/15, in 142 Harrington Hall, between 12:30am-8:00am, [petitioner] initiated sexual intercourse with another student three different times without establishing affirmative consent.”
If that’s the accusation, then the only way there was no need to further “detail the conduct” was to dismiss the accusation outright. Otherwise, the details were directly at issue.
Instead, the school presented the conclusions of Butterfly Blaise, the school’s Title IX coordinator, who conducted the investigation and was Plattsburgh’s in-house expert. What followed wasn’t so much a failing of Title IX, but of Governor Andrew Cuomo’s Enough is Enough Law, which imposed upon public colleges in New York a regime, separate from Title IX.
There were two factual disputes at issue here. The first was who initiated sex. The second was whether affirmative consent had been established. Both were proved by Blaise’s “testimony” at the hearing.
During the hearing, petitioner asked Blaise to define affirmative consent and she read the statutory definition, including that “consent can be given by words or actions as long as those words or actions create clear permission regarding willingness to engage in sexual activity.” Petitioner then asked, “So affirmative consent can be implied or referred [sic] from conduct?”, and Blaise responded, “[O]nly if the direct question is: Can I have sex with you? So you must ask directly what it is that you want to do to that person. . . . And the answer affirmatively must be yes.” This explanation was incorrect.
But Butterfly, the sexpert witness, wasn’t done yet.
The error was compounded when petitioner next inquired whether the consent standard applied to both parties, and Blaise explained that the obligation applied to the person initiating the sexual activity. When petitioner asked, “How do you define initiation?”, Blaise explained “that you initiated sexual intercourse by penetrating her.” This, too, was erroneous for the concepts of consent and initiation pertain to either verbal communication or the conduct between the participants, not simply the physical act of penetration.
And so the 3-2 majority reversed and remanded for a new hearing based upon Butterfly’s errors. And while it was a win, of sorts, for the petitioner, it demonstrated a glaring due process failure in Cuomo’s Enough is Enough law.
At the start of this hearing, Allen, the Hearing Officer, informed petitioner that “[t]he reporting
individual . . . is participating via Skype[,] . . . simply observing the proceedings today and not participating in the hearing.” Petitioner was informed that he could cross-examine Blaise as the complainant, but not the reporting individual.
Under Cuomo’s law, the accuser was not required to “participate” at the hearing, meaning that she need not give testimony nor subject herself to examination, even with safeguards. In this instance, she was there via Skype to observe, but her hearsay accusation came in via Blaise, and only Blaise could be crossed.
As the two justices in dissent explained, this is nuts.
We part ways on the issue of whether petitioner’s due process rights were violated when he was denied an opportunity to question the reporting individual as opposed to Blaise. We believe that they were and, moreover, view that deprivation as so egregious that annulment without remittal is called for.
While Cuomo’s law doesn’t compel the accuser to participate, that doesn’t mean the school can substitute a conclusory “expert” in her place. If the accuser refuses to testify, then the accused is incapable of questioning her allegations. Where extreme consequences, such as expulsion, follow, that is a deprivation of due process.
The Board was asked to determine which of these accounts should be believed, a task that was hampered by its inability to hear the reporting individual offer her account firsthand and have that account, including her claims of extreme intoxication and lack of recollection, challenged by cross-examination. Blaise’s trusted role as trainer, advisor and presenter compounded this problem, adding the imprimatur of authority and truthfulness to the hearsay that she was repeating, concomitantly impeaching petitioner. As such, Blaise ostensibly vouched for and bolstered the credibility of the absent reporting individual, enhancing the impact of the hearsay.
Unfortunately, the petitioner challenged the outcome of his hearing rather than the constitutionality of Cuomo’s Enough is Enough law. It’s impossible, when the issue to be determined is which version of facts to credit, to reach a credible determination when the accusation is presented solely by conclusory hearsay, and the defense is left without an accuser to question.
In essence, “that’s what she told me” became “that’s what happened” and this alone was deemed sufficient to overcome the presumption that petitioner was “not responsible” (Education Law § 6444  [c] [ii]).
But enough is enough, so who needs allegations to be tested when you have Butterfly to tell you who’s guilty?
H/T KC Johnson, who does all the heavy lifting of chronicling Title IX and related decisions.