It did not take a New Haven jury long in March of 2017 to acquit Saifullah Khan of the raping a classmate at Yale University one Halloween night. His accuser took the stand, told her story to the jury, was cross-examined and spent the better part of three days on the witness stand.
“Not guilty,” the jury said. In interviews with the press thereafter, jurors made it sound as though this was not a close case. Khan’s accuser wasn’t credible.
That didn’t stop Yale from expelling Mr. Khan over the incident. Yale notified Mr. Khan in a brief letter emailed this afternoon (January 2, 2019) that the university sides with his accuser.
Just how did this happen?
One answer might me that different fact-finders applied different standards of proof. In the criminal case, jurors were asked to determine whether the state could prove Mr. Khan took advantage of drunken classmate in October 2015. In a civil case, a lesser standard of proof was applicable. Fact-finders could reach different conclusions applying different standards. That’s a logical possibility.
But there is another, more compelling possibility – Mr. Khan was afforded due process at his criminal trial, but deprived a meaningful right to defend himself at the university’s tribunal.
I tried both the criminal case and was a silent witness to the university fact-finding process. There’s no doubt in my mind that the process Yale used to engage in its fact-finding was fatally flawed.
Mr. Khan’s accuser was not required to attend the Yale hearing -- the "fact finders" never met her. She used Skype to give her testimony at Yale. In the criminal trial, she sat in open court and testified. In New Haven she dialed it in. Mr. Khan wasn’t even permitted to be in the same room when his accuser gave her statement. He was shuffled to a side room and offered a chance to listen to what she had to say over an intercom.
Mr. Khan’s accuser was cross-examined at the criminal trial. Mr. Khan confronted her and challenged her credibility about her state of intoxication the night they made love. When she testified she stumbled as she walked across campus, be confronted her with a video that showed her smiling as the two walked arm-in-arm like young lovers on a stroll. She stammered out an unconvincing explanation for the Shakespearean sonnet she had sent him days before. She couldn’t explain why she flirted with him, or why she lied to others about what happened that night.
All that was lost on the five-member panel to hear the case under cloak of secrecy on the Yale campus. Mr. Khan could not cross-examine his accuser. She was queen for the day.
Mr. Khan was deprived of the right to counsel at Yale’s hearing. He could bring an adviser, but the adviser could not speak. I winced as I listed to panel members ask compound questions, assume facts not in evidence, and engage in the sort of fact-finding blunders lawyers and judges are trained to avoid.
You’ll have to take my word for this, of course. When Mr. Khan asked for permission to make a recording of the hearing, his request was denied. No record was taken of the proceedings. The secret proceeding lacked transparency, and, therefore accountability. It was painful watching accomplished scholars engage in star-chamber secrecy. They knew not what they were doing.
No lawyer, no cross-examination, no right to confront his accuser, no right even to make sure his accuser returned to make her case in person, no right to make a record of the proceedings. Yale’s fact-finders behaved as though the pursuit of justice were the prerogative of a secret society.
Mr. Khan will take an internal appeal at Yale, and, should that fail, he will turn to the federal courts for relief. Yale’s appeals process is limited. Mr. Khan can’t challenge the finding; he can only challenge procedural faults. He’ll likely lose the appeal and have to turn to the federal courts for relief. The good news is that the courts aren’t impressed with Title IX administrative proceedings.
In truth, Mr. Khan never had a chance at Yale once his accuser decided to make her claim. Indeed, after his acquittal in March, some 75,000 people signed a petition urging Yale to ban the “rapist” from campus. He was permitted to resume classes this Fall, but was treated like a pariah by classmates.
In November, the university pounced. A non-student claimed Mr. Khan abused him in a sadomasochistic threesome in Washington, D.C. The university suspended Mr. Khan. We were set to have a hearing on that claim next week. The Washington, D.C. police had closed its file, concluding no crime was committed. Mr. Khan submitted to a forensic interview, which concluded he was no threat to himself or others. The university did not intend to call his accuser in Washington, D.C., concluding the young man lacked credibility.
We’ve called next week’s hearing off. It’s moot now. Mr. Khan is now expelled and will have to fight his way back into Yale by way of the courts in lengthier proceedings.
New Haven jurors looked surprised at trial when they learned that Yale distributed condoms freely across campus. Two students heating sheets at night in rites of passage – why are we even in court? On the record assembled in open court last spring, a jury saw the case for what it was.
Yale couldn’t see it. After all, one student claimed to be a “survivor.” #HerToo?
It makes me want to holler: “It’s just sex stupid.” But the university wouldn’t listen. They didn’t want Mr. Khan to have a lawyer. And he was too polite to attack. He still believes in justice, and, for reasons that escape me, still wants to finish his degree at Yale.