Back in June, I wrote about the Connecticut Supreme Court deciding that a student accused of rape and expelled by Yale University could sue the female student who accused him for defamation because the hearing that resulted in his expulsion lacked due process, including the ability to cross-examine witnesses. Today the New York Times bemoans the development as the lawsuits by Saifullah Khan against his accuser and Tale can proceed. Khan was found guilty by Yale in a process that did not permit him to face his accuser, a female student who had graduated, as she gave a statement by teleconference to a university panel. Nor could his lawyer, under the rules of the hearing, cross-examine her. Yet before the hearing, Khan had been found not guilty of the crime in a criminal proceeding where his accuser was cross-examined sharply.

In June, I wrote in part, “The Connecticut Supreme Court ruled 7-0 that a former Yale student is not immune from being sued for defamation by the male student she accused of raping her. Saifullah Khan was found not guilty in a criminal trial of raping “Jane Doe” in her dorm room in October 2015 in what Khan insisted, and a jury agreed, was an incident of consensual sex. Yale had expelled Khan using the “preponderance of the evidence” standard forced on educational institutions by the Obama Department of Education. The court determined that because Khan had fewer rights to defend himself in university proceedings, which, again prompted by the Obama administration, provided limited due process protections, his accuser should not benefit from the civil immunity granted to witnesses in criminal proceedings. “Statements made in sexual misconduct disciplinary proceedings that are offered and accepted without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes,” the unanimous opinion held….

“The Connecticut ruling is likely to be an influential one, cited in future cases. Nonetheless, it comes too late for many students caught in the trap Obama’s DOE “Dear Colleague” letter set. The elimination of fairness and due process protections from college and university disciplinary proceedings after sexual assault accusations led to hundreds of lawsuits and egregious injustices. If the result of this decision is that female students take special care that their claims are legitimate and provable, it will restore much needed balance and fairness to process that was warped by the destructive “Believe all women” fixation.”

Naturally, Obama’s (and Biden’s )mouthpiece the Times is horrified by the result. Its “higher education reporter” interviews various advocates for the “Believe all women” mob whose interests the Obama DOE was pursuing when it urged colleges and universities to stack their procedures against the accused men and in favor of the accusing women. Allowing cross-examinations  deters sexual assault victims from reporting, complained a spokeswoman from the National Women’s Law Center.

“The vast majority of victims are not reporting what’s happening to them,” she said. “It’s still really hard to come forward and talk about what happened because survivors know about the retaliation they’re going to face, not just from their abusers but from the larger community.”

Yes, and it’s really hard to be kicked out of school based on a he said/she said dispute in which the presumption isn’t innocence, but that a male student accused of rape or sexual assault is guilty. This is the way the Obama administration wanted it. The Trump administration reversed the Obama policies to ensure the rights of the accused, and now Biden is in the process of flip-flopping the rules back.

This is fine with Joseph Vincent, an advisory board member of the Association of Title IX Administrators, who questioned the value of  cross-examinations in campus sexual assault hearings because “they are basically worthless at getting to the truth.”   But trials are not designed to discover the truth: they are designed to weigh the strength of the evidence on both sides. The evidence must be able to withstand a harsh scrutiny to take a young man’s education and future away from him. Somehow the Times concludes that its worth risking a serious wound to an innocent man’s future than to make the process of accusing him too stressful. Naomi Shatz, a lawyer who has represented accusers in other hearings, tells the Times that “It’s a huge emotional and financial burden to be dragged into a defamation lawsuit.” My response to that: Good. Before one makes an accusation that will burden the accused for life, one should be certain and have the evidence to prove the case. In the cross-examination of Khan’s accuser in the criminal trial, she was asked why  her memory blank on certain details, but not others, like the assault itself? Why did she send her alleged rapist  suggestive text messages before the alleged assault? These are legitimate questions that credible accuser has to be able to answer persuasively: the Times seems to think they are unfair. Khan, not guilty by a reasonale doubt standard in his trial but guilty under Yale’s “preponderance of the evidence” standard was a neuroscience student at Yale but still doesn’t have a bachelor’s degree. He is suing the university  for breach of contract and infliction of emotional distress and seeking $110 million in damages. His main mission, however, is to abolish campus Title IX hearings. If he wins the defamation suit against his former classmate, he says that he will circulate her name, now just known as “Jane Doe” and facts about the case online.

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Source: NYT

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Source: Legal Insurrection