Content Warning: This letter contains mention of rape and sexual assault. If you find the content disturbing, please seek help at Tuttleman Counseling Services or click here to find resources regarding rape, sexual assault and sexual violence.
Defamation suits filed by alleged perpetrators of sexual and domestic violence against accusers have skyrocketed within the past two years in a chilling response to Johnny Depp’s Virginia lawsuit against Amber Heard. We are now witnessing this sinister weapon of silence unravel in the academic setting.
In 2018, an undergraduate using the pseudonym Jane Doe testified at a Yale University Title IX disciplinary hearing about being raped at a Halloween party by Saifullah Khan, a fellow student, The New York Times reported. The Obama-Biden administration’s Title IX procedures protected Doe from being cross-examined in the Yale adjudication process, Khan was found responsible for the sexual assault and was subsequently expelled.
In 2011, the United States Department of Education’s Office of Civil Rights issued an advisory, which explained that allowing an alleged perpetrator to cross-examine an alleged victim in Title IX proceedings could be “traumatic or intimidating.”
Many schools complied, requiring students accused of sexual misconduct to submit questions to a panel for review, rather than allowing the aggressive approach to direct cross-examination.
State prosecutors later brought criminal charges against Khan for the same sexual assault and his lawyers were permitted to cross-examine Doe. Traditional cross-examination is required by law in a criminal court setting. Anyone who testifies must be open to questioning by the opposing counsel.
Khan’s lawyers took full advantage, attacking her with questions rooted in degrading and repulsive anti-victim stereotypes, proposing questions like: how were you dressed? Why did you wear a black cat costume for Halloween instead of a more modest one, like “Cinderella” in a long flowing gown?
“When somebody is guilty, you have to find other ways to discredit the victim: if you can’t discredit what happened, then you discredit the person,” according to Jerin Arifa, founder and president of the National Organization for Women’s Young Feminists and Allies
Attorneys, like H. Hunter Bruton, have agreed and said some questions do not advance a truth-seeking function at all, but instead serve only to embarrass or abuse and victims of physical and sexual abuse often do not, or cannot, testify in the presence of the accused abuser.
The Trump administration reversed the existing guidance in 2017 despite the previous reasons for providing procedural protections in school-based hearings. They advised that any process made available to one party in the adjudication procedure should be equally made available to the other party, including the right to cross-examine parties and witnesses.
President Joe Biden proposed returning to the earlier, more protective regulations in the summer of 2022. These proposals have not yet been codified, and the future of Title IX’s approach to the school-based quasi-judicial process is unclear as we enter an uncertain election season.
When Khan was later criminally prosecuted in state court, he harnessed the harm that cross-examination has inflicted on victims, and reaped its benefits: he was acquitted. Khan then took to the Civil Courts of Connecticut and is now suing both Yale and Doe for defamation based on her testimony made in the privacy of Yale’s Title IX hearing. He is demanding $110 million in damages.
The question that went all the way up to the Connecticut Supreme Court was if a victim’s confidential allegations in a Title IX hearing could be the grounds for a defamation suit.
It has long been settled law that survivors are granted immunity from defamation suits based on allegations they make in the criminal prosecution context. However, the Connecticut Supreme Court ruled that no such immunity applies to a survivor’s Title IX accusations, because the accused has fewer rights in that context — in particular the right to cross-examination.
The serious danger is that the Court’s decision fails to balance the rights of the accused with those of the survivor, or even to understand the relative harms that exist. Title IX accusations against an accused are confidential, so any risk of defamatory harm from those allegations is very low.
On the other hand, the potential harm to survivors that will flow from weaponizing defamation suits is vast. Survivors will either have to run the gauntlet of destructive, biased-soaked cross-examination to access school protection or face the possibility of a subsequent defamation suit.
Despite Title IX being a private matter designed to protect students who are harmed as they seek to obtain an education, the university process will render survivors targets in civil court.
The Connecticut Supreme Court’s precedent sends a dangerous message: if you exercise your right to access a trauma-informed investigation of an assault you experienced on your campus, you may later be vulnerable to a multi-million dollar defamation lawsuit.
As it turns out, additional evidence is surfacing that provides indirect support for Doe’s claims. Khan is now facing additional rape allegations from his close friend, Jon Andrews.
Andrews fervently supported Khan in preserving his reputation after Doe’s accusations surfaced. He was even a board member of Families Advocating for Campus Equality, an advocacy group dedicated to the defense of college students accused of sexual misconduct.
Andrews now alleges that Khan raped him during a drunken sexual interaction in Washington D.C., and was violent with him in two other instances as well. Andrews’ story has been corroborated by a third participant in the sexual interaction, who is utilizing the pseudonym Sophie.
This September, the Colorado Court of Appeals applied the same reasoning as Khan’s legal team to a Title IX case brought by Benjamin Gonzales, a student at Evergreen High School in Jefferson, Colorado. Like Khan, Gonzales claimed his right to sue his alleged victims and their mothers for defamation based on the absence of cross-examination in the high school administrative process; he was also acquitted in criminal court.
From Connecticut to Colorado, a precedent has spread in a matter of months. State legislators must stamp out the flames of this spreading injustice before it is too late.