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    Thursday, July 25, 2024

    If she said, he should also be able to say

    In 2018, Yale University held a disciplinary hearing at which a female student told her story of allegedly being raped after a Halloween party but couldn't be questioned back. The accused, Saifullah Khan, said the sex was consensual, but neither he nor his lawyer were even allowed in the room. The proceedings were piped in by speakerphone.

    Yale expelled him. She graduated.

    What makes this case special is that a few months earlier, at a trial held in a real courthouse, Khan was acquitted of the crime. This was a venue where guilt had to be proved "beyond a reasonable doubt." After three hours of deliberations, the jury declared him innocent.

    In the latest chapter, Khan, who came from Afghanistan, is suing his accuser of defamation. Khan's name has already been dragged through media. If he prevails in the suit, her name will become public as well.

    I obviously don't know what happened that night. Established facts are that after the party, the accuser invited Khan into her room. Both had been drinking, and she was especially drunk. Khan stayed with her as she vomited repeatedly.

    The woman told authorities that she was naked when she woke up, she had bruised legs and saw used condoms on the floor.

    In the jury trial, Kahn was allowed to say that she engaged in sexy talk while wearing a provocative cat-woman costume. None of the above justifies forced sex, but put them together with drunkenness, an invitation to her room and the lack of a specific "no," and a man might hear a "yes." Also hurting the woman's case, his lawyers said, was that her memories of the night did not include the assault itself. In her affidavit for Yale police, she wasn't sure whether or not she asked him to stop.

    It was not the Obama administration's finest hour to require that schools use lower standards of proof in rape cases than that which would be required in a real court of law. In Connecticut, such quasi-judicial hearings carry absolute immunity against defamation suits.

    However, the Connecticut Supreme Court ruled that the hearing at Yale was not quasi-judicial because it lacked due process. Due process includes the ability to cross-examine witnesses.

    Some women's advocates are "horrified" at these proceedings. They consider questions about dress and flirting as off-limits. Nothing justifies forced sex. They are right about that.

    Naomi Shatz, who has represented both sides in similar hearings, also noted that "It's a huge emotional and financial burden to be dragged into a defamation lawsuit ... especially as a young college student without financial resources or social capital."

    But many male students are likewise without financial resources or social capital. Khan's future darkened when he was thrown out of Yale's neuroscience program.

    Police departments on campus and off routinely refer to all accusers of rape as "victims." But some women use such charges to exact pain on people they have other issues with. Some are grifters, going after men they believe have deep pockets. Some are mentally ill. Letting them operate under veil of anonymity while subjecting the man to a lifetime of humiliation only encourages false accusations.

    This is not to underplay the heinous crime of rape. Those found guilty through a fair judicial process belong in jail. But the crime becomes trivialized when non-victims -- or, in some cases, not-quite-victims -- use rules lopsided in their favor to prey on others.

    One more thought. A woman who has been raped has been a victim of a terrible crime. She has nothing to be ashamed of. Many such women, recognizing that, have become quite willing to have their names made public in these cases.

    If what she said is open to testing by what he says, then her case can become even stronger. And the outcome fairer.

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