Satterlee Hall on the campus of SUNY Potsdam.



The New York Court of Appeals decided Thursday that hearsay evidence taken by an academic tribunal on an alleged sexual assault at the State University of New York at Potsdam was substantial evidence in lieu of the accuser's testimony.

The judges wrote in an unsigned memorandum that SUNY Potsdam had sufficient evidence to find the assailant, student Benjamin Haug, had violated its code of conduct.

But the court stopped short of saying he should have been expelled. The judges' decision on evidentiary grounds, however, lets stand the university's decision to expel the student.

Lloyd Grandy, an attorney from The Carlisle Law Firm in Ogdensburg, New York, who represented Haug, called the decision "unfortunate" because the case asked the court to weigh much larger issues of sexual assault and due process.

“The decision came down on a very narrow point of law and it's unfortunate that it's turned out this way because the case itself deals with such a broad problem and such a serious issue,” Grandy said. “It really is unfortunate that it’s come down to this very small question about whether or not some hearsay evidence was enough to carry the day.”

Grandy pointed to recent decisions from federal courts that suggested students accused of sexual assault must have the opportunity to cross-examine their accusers. That did not happen in this particular case.

The matter involved Haug, then a freshman at SUNY Potsdam, and another student at the college in 2014.

Haug was coming back to his dorm on campus after a night of drinking when he ran into the other student, who he knew from high school. She invited him up to her dorm room, where they had sex.

His accuser alleged that her body language showed that she did not consent to him having sex with her, and that she never verbally agreed, according to the Appellate Division’s decision in the case. She took off her shirt, she said, but he took off her pants without asking. She said she “froze up” when they started to have sex.

Haug later told university officials that he thought she had offered consent, according to the Appellate Division opinion. He said he asked her if she had a condom and she replied that she did not but that it was “fine.” He also said she asked him if he had fun after they were finished, according to the decision.

She reported the alleged sexual assault to campus police but initially did not reveal Haug’s identity. An anonymous tip led them to Haug, who was ordered to testify at a disciplinary hearing on their encounter.

Haug’s accuser chose not to attend the hearing, according to the Appellate Division opinion. Testimony was instead given on her behalf by a police officer and a college official who took down her account of the assault.

Assistant Solicitor General Brian Ginsberg, who argued for SUNY Potsdam, defended the accuser's decision to abstain from the hearing during arguments last month.

“Even though she does not appear in person … there were ways, albeit indirectly, to assess her credibility,” Ginsberg said.

Haug could have, for example, attempted to cross-examine her witnesses, Ginsberg argued. He did not.

The Court of Appeals said in its decision on Thursday that testimony from those witnesses, albeit hearsay, was enough for the hearing board at SUNY Potsdam to make a decision.

“Contrary to petitioner’s argument, the hearsay evidence proffered at the administrative hearing, along with petitioner’s testimony, provides substantial evidence in support of the finding that he violated respondents’ code of conduct,” the court wrote.

The court also said the college’s hearing board could have interpreted Haug’s later actions as an expression of guilt. Haug testified that he told the alleged victim he was “worried” and “didn’t know if she had reported him” after a campuswide rape alert went out, according to the Appellate Division.

“The hearing board also could have reasonably interpreted some of petitioner’s conceded behavior as consciousness of guilt and concluded that his version of the events was not credible,” the Court of Appeals wrote.

Haug’s suspension was elevated to an expulsion after he asked the SUNY Appellate Board to review the college’s decision. He appealed that decision to the Appellate Division, which said the testimony given by the police officer and college official at the disciplinary hearing was not substantial enough to find Haug violated the college’s code of conduct.

The appellate court did not make a clear determination on whether SUNY was justified in raising his punishment when he appealed, but said it was “troubled” by the lack of explanation over his expulsion.

The case was sent back to the Appellate Division by the Court of Appeals to address issues that were previously not raised in its decision, though which issues will be considered was not immediately known.

Associate Judge Eugene Fahey wrote in a dissenting opinion that he would have sided with Haug based on the Appellate Division’s decision.

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