Update: I’ve modified this post slightly. The change is shown in “strikeout.” An explanation appears at the end of the post.
Preface: Once again, I want to emphasize that as I describe the events in this post, I am not taking a position as to the merits of the allegations of sexual assault. I encourage readers to do the same.
In my last post, I described a recent SASH case at USMMA in which a woman (non-midshipman) alleges that she and a midshipman had sex , in a non-campus setting, when she was too drunk to consent. The accused midshipman acknowledges that the two had sex, and acknowledges that others told him that, in their opinion, the woman was too drunk to consent. But, the midshipman denies that the woman was too drunk to consent and asserts that what occurred was consensual. Superintendent James A. Helis conducted a hearing under the procedures he himself setup for sexual assault cases. Helis found the midshipman guilty of sexual assault and gave the midshipman a one year setback rather than expelling him.
The focus of the last post was the absurdity of a punishment of a one year setback for someone that Helis believed was guilty of date rape.
The midshipman is now challenging Helis’ finding of guilt in the U.S. District Court for the Eastern District of New York. I have no intention of trying to second guess the finding of guilt versus innocence since I don’t have access to all of the evidence. The focus of this current post is the constitutionality of the procedure used to prosecute the midshipman.
I have a great deal of experience dealing with issues of due process. I have represented plaintiffs who have been denied due process by the government; I advise governmental agencies on the application of due process in administrative hearings; and I occasionally serve as a governmental hearing examiner who must take evidence and allow parties to an administrative hearing a fair opportunity to present their cases.
As indicated in the preface, the focus of this post is the unconstitutional nature of Superintendent Helis’ procedures for prosecuting sexual assault/sexual harassment (“SASH”) cases. There are serious concerns that these procedures, which were promulgated by Helis, violate an accused midshipman’s due process rights. In fact, those concerns are so serious that a federal judge has already granted a temporary restraining order in the case described in yesterday’s post. Such an order could not have been entered unless the court first determined that the accused midshipman was “substantially likely” to prevail on his due process challenges. The only reason that I should be criticized for referring to Helis’ proceedings as a kangaroo court is because it is not fair to kangaroos.
A. What is due process?
Under the U.S. Constitution, the government may not deprive a person of life, liberty or property interests without affording the person “due process under the law.” It is well-established that expelling or suspending a person from a public university implicates the person’s liberty and property interests. Consequently, a student is entitled to due process when a public university subjects the student to a proceeding that potentially could result in expulsion.
The extent of “due process” that must be afforded someone depends upon the severity of the potential consequences. A midshipman challenging a parking ticket issued by the Academy’s security department is not entitled to the same level of protection given to a midshipman facing expulsion for alleged sexual assault. There is no question, though, that a midshipman facing setback or expulsion for allegations of sexual assault is entitled to a high degree of due process.
Due process is often described as the right to notice and a hearing. But, that simple phrase does not come close to describing an individual’s rights. The notice that must be given must give the accused fair notice of the charges that must be defended so that he can adequately defend against them. And the hearing must be “fair and impartial.”
There is a lot of judicial gloss added to what kind of hearing is “fair and impartial.” The classic example is a court case, where participants in our system of justice have clearly delineated roles. There is a prosecutor, who presents the government’s evidence; there is a judge who ensures that the proceedings are fairly and neutrally administered; and there is the defense counsel who protects, and advocates for, the rights of the accused. In some cases the judge serves as the person who determines the facts; in other cases, a jury determines the facts. If the accused is found guilty, the judge determines the punishment. If the accused challenges the findings of fact (or legal conclusions), he appeals to an appellate authority.
Another aspect of a fair and impartial hearing is that there are clearly defined rules that are administered neutrally. These rules prevent the hearing from being conducted in an arbitrary and capricious manner.
There are two principal ways that due process rights are violated. Sometimes, the rules the government creates are invalid as written. Other times, there are rules that are valid as written but which are applied incorrectly. In the case that is presently being litigated in court, both types of due process violations are present.
B. The Academy’s SASH prosecution rules, as written, violate due process.
Superintendent Helis adopted “Procedures for Superintendent’s Disciplinary Hearing in the Case of Sexual Assault/Harassment” on June 12, 2014. There are several problems with these procedures that raise serious due process concerns. First, although not expressly stated, the Procedures make the Superintendent both the prosecutor and the judge. This is a blatant disregard for due process. On top of that, Helis’ procedures deny the accused any appeal unless the punishment is expulsion. In other words, the judge/prosecutor prevents the accused from having any right to an appeal by punishing him with a setback rather than an expulsion. When you have the prosecutor (Helis) also acting as the judge (Helis), the hearing cannot, by definition, be impartial.
Another obvious due process issue in the Procedures is the one-sided control given to the Superintendent (who, remember, is serving as both judge and prosecutor). The superintendent has the power to recess the hearing at any time; the accused has no such power. So, if the proceeding is going poorly for the prosecution (Helis), the superintendent (Helis) can recess the proceeding until he (Helis) can gather the evidence or witnesses necessary to garner a conviction. Similarly, the superintendent can “request additional witnesses, documents or other evidence” but no similar right is given to the accused. These two powers that are given only to the prosecution have the effect of putting the thumb on the scale in favor of the prosecution. To make the thumb-on-the-scale even heavier, even after all of the evidence is in and the superintendent is now deliberating in his capacity as judge, he can decide to reconvene the hearing and take additional evidence. So the judge (Helis) feels that the prosecution (Helis) didn’t present sufficient evidence to justify a guilty verdict, he can give himself a second chance to present more evidence (to prove the case to himself).
The Procedures do not define sexual assault. For that, the Superintendent issued Superintendent Instruction 2016-02. Here again, as written, there are due process issues that just leap off of the page.
For example, sexual assault is defined as including “sexual conduct with someone you reasonably should have known was impaired and, thus unable to consent, due to the use of alcohol or drugs.” “Consent” is then defined as
an affirmative decision to engage in mutually agreed upon sexual activity and is given by clear words or actions. Consent may not be inferred from silence, passivity or lack of resistance alone. . . Assent shall not constitute consent if it is given by a person who is unable to lawfully give his or her consent because of youth, disability, intoxication or other condition, or coercion or intimidation.
These two definitions contradict each other. The first definition indicates that if someone is “impaired” by alcohol, he or she is “thus unable to consent.” But, the “consent” definition indicates that “assent” cannot be consent if the person is “unable to lawfully give” consent due to intoxication. Someone who is merely impaired by alcohol is not “lawfully” unable to give consent. (Someone who is incapacitated by alcohol is unable to lawfully give consent.) Because the two definitions contradict each other, the definition of sexual assault is unconstitutionally vague.
As another example, Superintendent Instruction 2016-02 gives the alleged victim the “right” at a sexual assault proceeding “to be free from any suggestion that he or she is at fault.” Let that sink in. Then consider this case of a male Amherst College student who was sexually assaulted by a female but two years later accused of sexual assault by the woman (arising out of the same incident). Under the Academy’s sexual assault policy, the woman’s sexual assault would not be admissible when the man tried to defend himself from her charges. Once again, the thumb is put on the scale. Does that sound impartial?
C. The manner in which the rules were applied in this case violated the accused midshipman’s due process rights.
The accused midshipman’s attorneys have raised numerous due process violations directed at the manner in which the Helis-promulgated procedures were applied in the case. I am not going to attempt to list them all and will instead focus on some of the ones that I consider to be the most blatant. I also will limit the discussion to those where it appears that there is no factual dispute about the procedure that was applied. (In some of the instances, the parties dispute the factual record. For example, they dispute whether or not the accused midshipman was given a break for supper after defending himself in a ten hour hearing.) Here are some of the key examples of the Helis’ failure to follow his own procedures:
• The Procedure specifies that the accused midshipman “will be permitted to question any witness.” Helis did not allow the accused midshipman to question the complainant and instead insisted that the midshipman submit the questions to Helis, who then decided whether to ask the proposed questions. Thus, the accused midshipman’s right to cross examine his accuser was denied. (To compound this constitutional issue, the rules also provide that, while an accused midshipman may have an attorney present, the midshipman, and not the attorney, must do all questioning. Helis denied the midshipman the right to have both his attorneys present, and forced one attorney to remain outside of the hearing room.)
The alleged victim was permitted to give hearsay testimony about what NYPD investigators told her; however, the accused was not permitted to call a witness (one of his attorneys) to testify as to what the NYPD investigators had told the attorney. (Another thumb on the scale.)
• The superintendent had access to, and used during the hearing, unsworn statements of witnesses who did not testify at the hearing. The accused midshipman could not cross examine these witnesses or otherwise counter the unsworn statements.
• The superintendent refused to allow the accused midshipmen to inquire about the alleged victim’s alleged romantic relationship with a key witness testifying against the midshipman. (This was relevant to bias of both the alleged victim and the witness and thus questions about the relationship should not have been excluded.)
Ten months ago, I criticized Helis’ failure to follow portions of his own procedure in a post entitled, “Helis cannot solve USMMA’s SASH under reporting problem.” In that post, I explained:
“Helis doesn’t follow the Academy’s own SASH procedures—even though he promulgated those procedures. Helis acts arbitrarily: where there are rules, he doesn’t follow them; if there are no rules, he makes them up as he goes along. As a result, midshipmen have no confidence that they will be appropriately protected if they report SASH, and the under-reporting problem persists.”
Unfortunately, ten months later, he has proven once again that he does not know how to either promulgate fair rules or apply them in a fair manner.
As indicated, a judge has already found that the accused midshipman has shown a “substantial likelihood” that he will succeed on the merits. Assuming that the court ultimately concludes that the accused midshipman’s constitutional rights were violated, then the finding of guilt will be vacated and in all likelihood, there will be no new chance for the Academy to pursue charges against the midshipman.
Thus, the midshipman is likely to graduate regardless of his guilt or innocence. And the alleged victim, and all of the witnesses who came forward to testify, will be left to wonder why they put themselves through a process that ended up being meaningless. All because the superintendent promulgated an unconstitutional procedure and then compounded his error by applying it in an even more unconstitutional manner.
This all once again returns to the same conclusion – it is long past time that competent leadership was brought in and given the helm at USMMA. A change is long overdue. And everyone who truly cares about reducing SASH at the Academy should be demanding that change. The midshipmen and the institution deserve no less.
Explanation of the substantive update: I’ve deleted (shown in strikeout) one bullet point from Part C of this post because, after discussions with people familiar with the hearing, I’m not sure that the hearsay questions asked of the alleged victim about what she was told by NYPD investigators were of the same order of magnitude as the hearsay that the attorney for the accused would have given about what the NYPD investigators told the attorney. Since I don’t have access to the transcript and am trying to only put out uncontested information, I think fairness dictates that I remove that bullet point from the list.
update: edited at 0752 on April 17 to correct typographical errors.