High court weighs student's expulsion

ALBANY, N.Y. _ On Sept. 7, 2014, after a night of drinking, State University of New York at Potsdam freshman Benjamin Haug returned to his dorm and ran into a woman he knew from high school.

They ended up in bed. And ultimately, Haug ended up expelled from SUNY Potsdam.

Following a hearing at which the woman did not testify, the college determined Haug violated its policy against sexual misconduct. The code requires the school's students to give affirmative consent to sexual activity identified as "spoken words or behavior that indicates, without doubt to either party, a mutual agreement to participate."

On Thursday, the case went to the state's highest court, which now must delve into the murky details of a late-night encounter between students on a college campus in St. Lawrence County.

Depending on how the Court of Appeals rules, judges could decide the college was justified to remove Haug or affirm a lower court decision that found the evidence for his expulsion was insufficient.

Assistant Solicitor General Brian Ginsberg, representing the college, argued sufficient cause existed to support the decision to expel Haug. Ginsberg noted Haug texted the female student the next day after he learned of a "rape alert" at the college. Haug wanted to know whether it was her filing a complaint against him, Ginsberg said.

"To be sure, we are not asking this court to say that the college has to turn a blind eye to the hearsay nature of the evidence," Ginsberg said. "The college is free to draw negative inferences from the complainant's failure to appear, free to give her statements less weight. But what the college is not free to do is disregard reliable evidence such as was presented here."

Haug's lawyer, Lloyd Grandy, told the court that the serious nature of a sexual assault allegation should require the highest standards of evidence.

"We have a 'he said,' 'she said,' 'they said,'" Grandy said.

Haug, 22, and his parents were in attendance. The ex-student, who is from Malone, now lives in the Buffalo area.

A summary of the case from court papers described the sequence of events as follows:

After the two students ran into one another on Sept. 7, 2014, the female student invited Haug to her room, where they had sex. She soon afterward reported to campus police that she had been sexually assaulted. The female student "didn't want any evidence collected" or Haug "to be necessarily in trouble," according to a campus police officer who testified at the hearing.

The female student told the officer she "froze" and did not tell Haug "no" and "didn't have any gesture saying that it wasn't welcome." She refused to identify Haug to the officer. An anonymous tipster later identified him.

A college official, Annette Robbins, contacted the female student, who told Robbins she had been "making out" with Haug on a bed. She said Haug suggested they have sex, she removed her shirt, Haug removed his clothes and they had sex. The female student said she "froze" and "let things happen."

The female student did not appear at the SUNY Potsdam hearing for Haug. He did appear, as did Robbins.

The school hearing board found Haug guilty of sexual misconduct and recommended he be suspended for the remainder of the semester. Haug appealed and the school's appellate board not only ruled against him but recommended his penalty be upgraded to expulsion, which SUNY Potsdam's president imposed.

The Appellate Division of state Supreme Court's Third Department, based in Albany, reversed that decision in the 3-2 ruling and ordered the records sealed. That sent the matter to the Court of Appeals.

It is expected to rule within six to eight weeks.

rgavin(at)timesunion.com - 518-434-2403 - Twitter: (at)RobertGavinTU