Saifullah Khan was acquitted. The allegations brought against the Yale grad student went before a jury and, after due deliberation, the jury said no. Not Guilty. In a rational world, that would be the end of that, but this isn’t a rational world. It’s Yale.
Saifullah Khan, the former Yale student who was found not guilty of sexual assault by a criminal court in March, said on Monday that the University Wide Committee on Sexual Assault has resumed its hearing process on his case to determine whether he can re-enroll at Yale.
Before you mumble anything about double jeopardy, it’s not. The Yale process isn’t criminal, but regulatory. More importantly, the same distinction that allows a federal defendant to be sentenced for acquitted conduct, or an acquitted defendant to be put on the sex offender registry, comes into play.
In clearing Khan of all four sexual assault charges, jury members concluded that Doe and her team failed to prove that the evidence showed “beyond a reasonable doubt” — the highest standard of proof used in jurisprudence — that Khan had committed a crime.
At a potential hearing within the University, however, Khan would face a different evidentiary standard.
Like most U.S. colleges, Yale adjudicates sexual misconduct allegations using a lower standard of proof than that used in criminal courts. Per the “preponderance of the evidence” standard, a student is disciplined if evidence shows that the misconduct more likely than not occurred.
The legalistic distinction between beyond a reasonable doubt and the standard at Yale, preponderance of the evidence, is the technical distinction, but hardly the only one. At a real trial, rules of evidence are used, examination and cross are required and the trial is overseen by a judge, who knows actual law and instructs the jury. It’s not that the lower standard is inconsequential, but only one of the many due process protections that distinguish a trial from a farce.
Most civil court proceedings also use the “preponderance of the evidence” standard.
When someone tries to sell that it’s the same standard as “most civil proceedings,” they’re being disingenuous or ignorant. It comes along with the full panoply of safeguards at trial, and is stripped of them at the college hearing.
But why would Yale persist in the face of an acquittal?
After Khan was acquitted, Yale students debated whether he should be readmitted, in Facebook posts and op-eds. Amelia Nierenberg ’18, a former Opinions editor for the News, wrote in March that “readmitting Khan would be a grievous mistake.”
“Legal acquittal does not mean ‘innocence,’” Nierenberg wrote. “It does not mean that Khan did not engage in deeply dubious sexual conduct. It just means that a jury could not find that this sexual behavior was, to their eyes, rape beyond a reasonable doubt.”
While it’s true, if facile, to state that a jury’s verdict of “not guilty” is not a verdict of innocence, it’s a sophistic argument. The presumption of innocence remains in force until a jury finds a person guilty. He was innocent. He remains innocent. That’s the law, even if Nierenberg wants to flip the syllogism on its head.
But that’s the least nefarious of her points.
She argued that a preponderance of evidence does exist that Khan did not engage in Yale’s definition of consent, a “positive, unambiguous and voluntary agreement to engage in specific sexual activity throughout a sexual encounter.”
The “Yale definition” of consent bears no resemblance to any legal definition anywhere, and short of screaming “do you consent” constantly throughout sex,* could never be met. But Nierenberg sneaks more into her cry, shifting the burden from the accuser to the accused to prove that he had consent, and Yale flavor, throughout.
But Khan’s trial wasn’t a matter of sifting through physical evidence to find that he wasn’t guilty. It was a jury finding the accuser incredible.
“It isn’t even a measure of the differences in standards of evidence,” [Cynthia] Garrett added. “[The jury] didn’t believe her, they said they didn’t believe her, she was not credible, this is not he said-she said, this is ‘we don’t believe her, and the evidence supports what he said.’ … Why is it that an ideology has to supersede actual facts?”
If a jury refused to credit the accuser, would that be significant to the women of Yale or its Title IX machinery? Don’t be naive. Off campus, and particularly in a courtroom, there is no “believe the woman” mantra to flip the presumption of innocence on its head, where an accusation is sufficient to prove the offense and the burden then falls on the accused to prove to the satisfaction of Yale-trained inquisitors that he’s innocent.
The question, for the moment, isn’t whether Khan will prevail at a Yale Title IX hearing, but why he is constrained to suffer it after having been acquitted by a real jury in a real court for a real crime. So what if he’s innocent in the eyes of the law. Until he’s innocent in the the eyes of the women of Yale, he’s guilty and must be exiled from his education, his reputation ruined, reviled as the rapist who got away.
Regardless of the outcome of the Yale hearing, which may well turn out quite differently than the trial since accusers are believed notwithstanding credibility, the damage to Khan’s life from this false accusation can’t be undone. But it can be exacerbated, and Yale’s just the university to do so.
*On the bright side, it’s a better definition than the new definition at American University, where consent can be withdrawn afterward because women might not grasp the concept of consent adequately during sex and need time to reflect on it afterward.