jingyicui

After four hours of deliberations, a six-person jury on Wednesday acquitted Saifullah Khan, a former Yale student who stood trial for allegedly raping another undergraduate in her Trumbull College dorm room in 2015.

But according to three law professors interviewed by the News, the state had strong evidence in its case against Khan, including footage in which he seemed to be propping up his accuser while her leg dragged behind her, evidence that she was denied reentry to the Yale Symphony Orchestra Halloween show because of inebriation, and bruises on her leg that she says appeared the following morning.

The case highlights long-standing tensions over whether campus sexual assault cases should be tried in criminal court — using a “beyond a reasonable doubt” standard of evidence, the highest standard of proof in a court of law — or by University bodies, which commonly use lower evidentiary standards. Under Yale’s “preponderance of evidence” standard, a guilty verdict requires that there be a greater than 50 percent likelihood that the accused committed the crime. Legal authorities say that the “beyond a reasonable doubt” standard requires 98 or 99 percent certainty.

Lawyers and law professors were divided over the efficacy of the strict evidentiary standard in adjudicating sexual misconduct cases, with some arguing that it makes proving sexual misconduct almost impossible. And in the Kahn case, some legal experts questioned the jury’s verdict, while others challenged the fairness of the process and findings.

“There is no infallible system,” said attorney Susan Kaplan, who is representing two students accused of sexual misconduct who are suing the University. “[The legal system] is a damn good system that has been accruing nuances, working out problems, gaining internal wisdom … over centuries of practice and thought and great minds trying to work it through. And so, it’s reliable.”

John D. Villasenor, a UCLA professor who has written extensively on standards of evidence in campus sexual misconduct, said that lower burdens of proof increase the probability of concluding that innocent defendants are guilty. His studies have shown that innocent defendants face a dramatically higher risk of conviction in cases in which a preponderance of evidence suffices for establishing guilt.

In a statement to the News after Khan’s acquittal, Families Advocating for Campus Equality co-president Cynthia Garrett, who advocates for defendant’s rights in campus sexual assault adjudication procedures, said that, this time, the system “worked.”

Still, others argued that the acquittal does not necessarily mean Khan is innocent.

According to University of Pennsylvania law professor Mitchell Berman, who in 2015 signed onto a letter that raised due process concerns for campus sexual misconduct adjudication, the acquittal does not necessarily mean that Khan is not guilty, and jurors may have believed that the defendant was more likely guilty than not, Berman added.

Alternatively, the jury may have concluded that Khan’s behavior was “abominable” but not unlawful, said Katharine Baker a legal expert specializing sexual misconduct law.

In acquaintance rape cases brought to criminal court, it can be difficult to substantiate allegations against the accused, said sexual misconduct legal expert Hannah Brenner. Evidence is often limited to conflicting accounts from the two parties involved, she added, and the evidentiary standard is high to ensure due process rights of the accused.

Few college sexual assault cases go to trial. Still, Khan is not the first college student to receive national attention for criminal charges against him. In 2016, former Stanford student Brock Turner was found guilty of three counts of felony sexual assault.

But unlike the case against Khan, two eyewitnesses testified that they saw Turner on top of his accuser and intervened to try to prevent the assault. The criminal justice system is often unable to prosecute sexual assault cases that revolve around private interactions between two people without other eye-witnesses, said Laura Dunn, a law professor and former executive director of the victim’s advocacy group SurvJustice.

“This is an example of a broken system,” Dunn said.

Now that Khan has been absolved of any wrongdoing, his lawyers say he will likely attempt to reenroll at Yale and finish his last year of college. The University suspended Khan three days before he was arrested, and readmission would “right that wrong,” said his attorney, Norm Pattis.

But just because a jury found Khan not guilty does not mean that a University panel, using a lower standard of evidence, will decide to readmit him to Yale.

Both proponents and critics of campus sexual misconduct policies agree that some students who are guilty in campus adjudications may be acquitted in criminal court, said Berman. Kaplan, the lawyer representing two students suing Yale, said that if Khan were retried under the “preponderance of evidence” standard used by the University-Wide Committee on Sexual Misconduct at Yale there would likely be a different outcome.

Still, she argued, the criminal system works better than Yale’s system, which she says denies students due process.

“I don’t see [how Yale can] achieve an end that somehow, in this topsy turvy world, the criminal justice system is not to be trusted but [Yale’s] semblance of a system somehow is really going to get to the matter and get to some kind of truth,” Kaplan said.

Still, other legal experts argued that despite his acquittal, Khan should not be allowed back on campus. Baker said the behavior Khan admitted to during the trial may not reflect the norms of respect and civility that most universities require of their students, even if his conduct was not criminal.

The University has declined to comment on Khan’s case.

Yale received 124 complaints of sexual misconduct between July 1 and Dec. 31, 2017.

Hailey Fuchs | hailey.fuchs@yale.edu

  • Douglas Levene

    Yale Law School’s rules for deciding claims of student misconduct set the gold standard for protection of due process. Accused students have, inter alia, the right to counsel, the right to remain silent, the right to cross-examine hostile witnesses, the right to produce exculpatory evidence, the right to have neutral adjudicators and the right to appeal. See https://law.yale.edu/student-life/policies/rights-duties. That is, unless the charge is of sexual misconduct. Then, none of the above rights apply, see id. at footnote 1, and instead the charge is heard by the University’s kangaroo court for sex offenses.

    • James Galullo

      Well being a law school it would be embarrassing to deny due process. The university system as a whole due process is not available to the students. When the students start the first day they signed the student handbook which is a contract. There are fourth amendment protections but that’s pretty much it. The universities reasoning is that “It makes it easier for the students to speak freely without parents or legal representation”. So universities can basically do whatever they want that’s the reality.

  • John A Bingham

    If we are going to have meaningful conversations around this we need to begin with balanced reporting. The jury disagreed that she was dragging her leg. They saw two people hanging out joking with each other. They asked to see the video again and closely watched it. Let’s solve this but we need to begin with balance.

    • Joe Transue

      Having sat through the entire trial myself as an alternate juror, I can tell you the media is failing to tell the whole story. I approve of the “Me too” moment but it has had the undesired effect of putting journalists in a position where the story of social injustice is highly sought after by a nation weary of having a rapist for a president.

      • heavensdoor

        Who? Clinton? And the enabler…soon to appear at Yale?

        • Joe Transue

          Don’t you have a pizza place to investigate?

  • Attart

    Arm chair quarterbacks pontificating about what they did not observe. The jurors reportedly found the accuser not credible and determined that the video in which she claims to have been held up and staggering actually showed her walking just fine and laughing.

  • zara

    Fuchs reports, “according to three law professors interviewed by the News, the state had strong evidence in its case against Khan, including footage in which he seemed to be propping up his accuser while her leg dragged behind her.”

    NYT reports: “The juror who spoke anonymously said that the panel had not focused on the banter or on Mr. Pattis’s suggestion that the woman’s Halloween costume had been too sexy. Instead, the jurors focused on evidence like security camera footage that showed the complainant and Mr. Khan walking back to her dorm room. The complainant had testified that the footage showed her so drunk that she was unable to support herself, her leg dragging behind her.

    ‘We looked at and we looked at and we looked at that video of them walking,’ the juror said. ‘We could not see her leg dragging. We could not see her eyes shut. We could not see what she said.’”

    In other words, the jury found that the defendant lied about the encounter, not that they had insufficient evidence, as YDN insists on suggesting.

  • http://www.artspace.com/magazine/interviews_features/lists/the-10-worst-ways-to-die-in-a-hieronymous-bosch-painting-53872 Hieronymus Machine

    “…absolved of any [LEGALLY ACTIONABLE] wrongdoing…” “‘Abominable’ but not unlawful” indeed.

    And I write that while agreeing with those who consider *Yale’s* system to be fubar (and indefensibly biased).

    • habitualjoker

      I, too, agree that Yale’s system (and the many college tribunal systems like it) is bonkers. But, man, something about having sex with someone who so recently threw up is super skeevy to me. Abominable it clearly is. It might not clear the 99% beyond a reasonable doubt standard, but more likely than not? Definitely.

      • Dios

        Just in FYI: Maybe it was missed somehow, accuser threw up in her room with him because she gagged on his penis. It was not because she was drunk or sick, she was performing an act which was also supported in her medical exam. She wanted to deep throat him and struggled.

        Just putting it into perspective.

        There I said it…….

        • habitualjoker

          That explanation was proposed by Khan himself. I find it quite unlikely given that she also threw up earlier at the YSO show.

          • Attart

            Actually it is true. The nurse’s report when she went for Plan B later that day – and told the nurse it was consensual BTW – says there was redness at the back of her throat, to which the police report says she responded by saying it must have had something to do with the sex. Not much else with sex reaches the back of one’s throat, unless I’m missing something.

          • habitualjoker

            I don’t doubt that she performed oral sex on him. I doubt that the reason she threw up was due to that, rather than drunkenness.

  • Boott Spur

    Instead of talking exclusively to law professors — who, incidentally, seem to have very little faith in the system they study — why didn’t the reporter talk to, well, the jurors? The New York Times did, and one of the quotes from a juror in their story speaks directly against the assertion in the second paragraph that the video footage was clear and convincing evidence of drunkenness. I don’t think the reporter here intended to be biased, but this article comes across as little more than an opportunity for law professors unaffiliated with the case to vent their frustrations and broadcast that their initial suspicion he was guilty was in no way contravened by the jury.

    Also, the justice system *prosecutes* these sexual assault cases just fine. Maybe Dunn meant *arrives at guilty verdicts*, in which case she should come out and say it.

    • http://www.artspace.com/magazine/interviews_features/lists/the-10-worst-ways-to-die-in-a-hieronymous-bosch-painting-53872 Hieronymus Machine

      Interestingly, the NYTimes reporter, Vivan Wang (assuming it’s the same Vivian Wang) is Yale ’15 and thus a classmate of Khan’s (and a former YDN reporter).

  • B. McLeod

    To be accurate, the two eyewitnesses in the Turner case testified that they saw Turner engaged in sexual intercourse. It was the reason rape charges were initially filed. However, forensics later showed the witnesses were mistaken, and those charges had to be dismissed. Turner in fact never even removed his clothes, so that even the “attempted rape” charge is highly dubious. There is considerable merit to the appeal pending in that case, which probes whether there was any evidence of the elements legally required to support the charges on which Turner was ultimately convicted.

  • GH

    I got curious about this case after the NY Times reported on it. I read a few articles about the case, including this paper’s online site. (By the way, your paid ads are horrible, and make the paper hard to read.) After all this, I’m seriously starting to wonder, why does this paper keep attacking this kid?

    You say “But according to three law professors interviewed by the News, the state had strong evidence in its case against Khan”… Really? Who are these law professors? Weird reporting… I’m not happy. I thought more highly of Yale before I started to follow your reporting on this case. Good luck

    • ldffly

      You’re not the only one who’s lost respect for Yale.

      • Lumi Sencion

        You got that right!!

    • Dios

      They stole 2+ years of this young man’s life. His troubles are far from over. They are trying to ruin him. Shame on YDN for milking this story as much as possible at the expense of Mr Khan. Does anyone know the cost to get incorrect reporting off? YDN should publish a one page ad, with large letters to state an apology to Mr Khan. Maintained his innocence and wishing him success in life. Grow a heart YDN, I dare you!

  • Young Doctor Yung

    Please stop.
    The State lost. The girl lost. Yale lost.
    Justice won.
    When justice wins, the people win.
    End of story.

  • Juan Diaz

    You had your day in court and Khan was found “not guilty.” Enough is enough with demonizing this young man and trying to ruin his life. He has suffered enough having to face a criminal trial. I would dread sending my son to any college these days given what has happened here.

  • Dittersdorf451

    John Villasenor’s research is a valuable addition to the debate. Yet t is regrettable that almost all of the focus in the Title IX debate has been around the question of preponderance of evidence versus clear and convincing evidence or beyond a reasonable doubt. The problems with Title IX tribunals extend far beyond this question. Cross-examination is one of the foundational rights in our system, and Wigmore called it “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” The tribunal lacks subpoena power, and anyone who doubts that this is important may wish to read up on the Amherst case. The respondent lacks meaningful discovery. I am probably forgetting a few, but this list is a good start toward clarifying what other problems beset such tribunals. One might also consider Yale’s prior bad acts: The Patrick Witt case and the Jack Montague case come to mind.

  • Sam

    Yes, let’s applaud the fact that there is no due process on campus.

  • Sam

    When the facts don’t fit, go with the gut. These “law professors” deserve to be named so that we can honor and salute their collective wisdom.

    • Dios

      This is so upsetting. The accuser remains anonymous. The “law professors” remain anonymous. Such BULLSH*T!!!! 2+ years of ruining this man’s life, and the accuser and BS Law Professors claims get to continue to impact Mr Khan’s reputation while they hide. YDN, if they can not be on the record to ruin someone’s life, they do not earn the right to be heard.

      These “Law Professors” most likely stand to lose their job and or credibility by going public, but they have the balls to continue to defame Mr Khan. They are cowards. For their sake, they better not have sons in their world. Then they will see how screwed up the system is.

  • Vincent Morrone

    Not mentioned in the article is that Yale withheld exculpatory evidence that they the defendant never would have found out about in a Title IX case as there is no discovery. Sure, it’s fair to say guilty people sometimes go free in criminal cases, but the author isn’t actually making a case that this young man was guilty.

    The article also mentions Brock Turner. Anyone remember how upset everyone was (And still is) over the light sentence he received. Why argue that colleges should handle it when they can’t sentence to jail and an expulsion doesn’t protect society.

  • marcedward

    The vast majority of people accused and kicked out of school are POC. Those who want the lower standard are probably racists who want to keep POC out of higher education.

    • Vincent Morrone

      You should google the Findlay case. Reams of evidence. House full of people who said they heard the woman consent loudly. She bragged about it for about a week. The school threatened a couple of the witnesses who sided with the 2 guys. One lost her work study, the other was threatened with expulsion. They didn’t bother with the black men in the house at the time as they assumed they’d just lie to protect their friends. They even contacted one of the accused’s ex girlfriends, trying to get her to say he was violent. She wouldn’t.

      Still expelled, 48 hours later, no hearing. Email sent out to the entire school with their names and faces.

  • Nancy Morris

    I hope those three law professors interviewed by the News who claimed that the state had strong evidence in its case against Khan don’t actually practice criminal defense, because their judgment is appalling, something the jury’s very brief deliberations before acquittal signals. Four hours is about the minimum time it would take just to review the evidence on the fly. This was a VERY weak criminal case, and Khan was fortunate to have an attorney who understood that…unlike the three clown professors the News dug up. One shudders at the thought of an accused client of one of these professors signing a plea agreement based on their lawyer’s advice that the state had a “strong case” … and thereby pointlessly going to jail. Who are these three clowns? The News should publish their names so other accused can avoid hiring any of them!

    Focusing on the video evidence as indicating Doe’s intoxication (it does not) is especially amateurish and poor judgment. Video is notoriously uncertain and unreliable in conveying nuance of any kind, as anyone who has ever seen themselves in security footage should be aware. According to the NYTimes, the jury saw the footage as exculpatory. Security footage can settle the question of whether a suspect shot a cashier, but for determining sobriety is all but worthless. The weak and highly equivocal witness testimony is far more significant.

    The accuser had “bruises on her leg that she says appeared the following morning?” So what? Who cares?

    Anyone rejecting this verdict or citing it as evidence that the system is broken is a moral disgrace. It is far from clear that the accuser here is even supported by a preponderance of the evidence, although the YDN keeps insinuating otherwise.

    Indeed, to judge from the YDN reporting, Doe should be concerned about an incoming defamation action.

    • Nancy Morris

      There’s more, and worse, for those who think Khan will lose before Yale’s “preponderance of the evidence standard.” What appears below is from REASON Magazine, who interviewed a female alternate juror who said the evidence convinced her not just that there was a “reasonable doubt” of Khan’s guilt, but instead PROVED TO HER THAT KHAN IS ACTUALLY INNOCENT:

      Elise Wiener [is] a 56-year-old mother of three who served as an alternate juror in the case, who says she would have eagerly voted to acquit Khan if given the chance.

      “It just didn’t add up,” Wiener tells me. “I think he’s innocent, I think he doesn’t deserve this, and I think it’s sad.”

      Wiener didn’t get to attend the jury’s deliberations, but she sat through the entire trial, evaluating all the evidence the prosecution presented. She came away quite convinced that there was little to support the accuser’s story.

      “It was like George Orwell, like 1984, where you’re looking at [the evidence], and they’re saying it’s the complete opposite of what it looked like,” said Wiener. ….

      Two key pieces of evidence were supposed to establish Khan’s guilt. The first was surveillance footage of Khan and the accuser walking to her dorm. According to the prosecution, this footage showed Khan dragging an unwilling victim. But that’s not what Wiener saw.

      “She was strolling with him with a big grin,” said Wiener. “And that was supposed to show that she was in a drunken stupor, and she was being dragged by him?”

      The video footage, according to Wiener, simply didn’t support the prosecution’s argument.

      Then there were the text messages. As The New York Times characterized them:

      After Mr. Khan left, the victim said, she looked through her phone and found that he had sent messages to her friends on her behalf the night before, declining their invitations to meet up after the show.

      Such a specifically deceitful act would indeed make Khan’s guilt seem more likely. The problem—unacknowledged by The Times—was that the prosecution could present no evidence that Khan had sent those messages instead of the accuser.

      “There’s no evidence that it was him,” said Wiener. “It’s just not evidence, it’s conjecture.”

      I asked Wiener why the accuser would make up such a story—why she would go to such lengths to punish Khan. Wiener saw a couple of possibilities. One was that she woke up revolted with herself for having slept with Khan. The other, more benign explanation is that she really had convinced herself she hadn’t consented to sex. In either case, Wiener felt the evidence simply wasn’t in her favor.

      Other jurors apparently reached the same conclusion, according to The Times:

      The juror who spoke anonymously said that the panel had not focused on the banter or on Mr. Pattis’s suggestion that the woman’s Halloween costume had been too sexy. Instead, the jurors focused on evidence like security camera footage that showed the complainant and Mr. Khan walking back to her dorm room. The complainant had testified that the footage showed her so drunk that she was unable to support herself, her leg dragging behind her.

      “We looked at and we looked at and we looked at that video of them walking,” the juror said. “We could not see her leg dragging. We could not see her eyes shut. We could not see what she said.”

      • Vincent Morrone

        Regardless, he might actually lose if they give him a hearing. (They suspended him 2 years ago without one.) The fact is, these are done in secret tribunal, and they get to control what evidence they allow. And the public pressure is on to kick him out officially. Or to just not allow him to come back and tell him to go to another college, who are under no obligation to accept him.

  • robn

    The “beyond a reasonable doubt” standard is based upon the late 1700’s Blackstone ratio; “It is better that ten guilty persons escape than that one innocent suffer”. The University should trust that the continued application of this principle by non-academia is evidence of its validity in the real world which, presumably, students are preparing to join.

  • EPDP

    Why is a law professor more qualified than a juror to view a videotape of Khan walking across campus? According to the juror I spoke with, they watched that video five times and could not see the victim stumbling and being held up by Khan. This is called reasonable doubt, not strong evidence. The State did not present the security guard whom the victim said saw her throw up in the rotunda and tell her she could not enter. More evidence of reasonable doubt. There were bruises on the victims legs, yet there were no bruises on the victims arms, shoulders or torso, where you would also expect there to be bruises, as the victim testified that Khan held her entire body down. More reasonable doubt. If these law professors are so confident that there was “strong evidence”, they should come forward, and explain why they came to this conclusion.

    • Dios

      Maybe instead of assuming, maybe these “law professors” should have been at the trial and watched the video that was presented there as well. Listened to all the evidence presented also might have been a more respectable thing to do. Otherwise, they are just talking to jump on the bandwagon and get their names out there. the lack of integrity displayed by these professors is embarrassing.

  • Attart
  • Vincent Morrone
  • Vincent Morrone

    You are correct, and we’ve all heard of cases where we think someone got away with a crime. The problem is that because this is rape, a lot of people want to assume he is guilty unless she gets arrested, charged and convicted for filing a false report. They want to continue to punish him by expelling him from Yale. We often hear 8-10% of cases are false, so that means 90-92 are true. Well, no. 8-10 are proven false. Ones dropped for lack of evidence, or because the accuser decided not to cooperate or where the accused was acquitted shouldn’t be all assumed to be true.

    The accuser is no longer at Yale so to not allow the young man to return is punishing him. If Yale can’t prove he’s a danger through a fair hearing (He didn’t get one) he should be allowed to return. Let’s also remember that there was a mistrial because of exculpatory evidence that Yale turned over at the last moment. Including notes that signaled they profiled him based on race.

  • Nancy Morris

    Actually, several jurors interviewed after the acquital report that the evidence against Khan was far worse for the prosecution than merely failing to satisfy the “reasonable doubt” standard, as I note in other comments to this article. For example, one alternate juror relates that the prosecution’s evidence was straight out of George Orwell, and indicated the exact opposite of what the prosecution claimed, or was total conjecture.

    Overall it appears that Khan will likely be able to gain reinstatement at Yale even under a “preponderance of evidence” evidence standard, if he so chooses. That he could prevail in a civil defamation action against his accuser is not out of the question.

    • James Galullo

      Legal action would be the risk to Yale. Risk/reward favors letting him in and this whole thing go away for Yale. How would Yale defend against civil liability without the complainant? She is not coming back to go thru this thing again.

      • Nancy Morris

        All good points suggesting that Khan may, if he wishes, obtain reinstatement.

        But there are many factors, not all of them favorable to Mr Khan’s reinstatement chances.