Judges uphold student expulsion
Sex assault charge stands on appeal despite bias claim
Appellate justices on Thursday upheld the expulsion from school of a former University at Albany student who school officials found sexually violated an incapacitated student in 2017.
The 5-0 ruling from the Appellate Division of state Supreme Court’s Third Department upheld a determination by Ualbany’s Student Conduct Board that the male student engaged in sexual conduct with the female student without her consent. His actions violated the school’s code of conduct for sexual assault and sexual harassment.
On Thursday, justices highlighted evidence from witnesses who said the female student was highly intoxicated and had used Xanax on the night of the incident in September 2017.
“Substantial evidence supports the board’s determination that (the male student) engaged in sexual activity with the (female student) when she was incapable of consent by virtue of intoxication and that a reasonable person in his position should have known of her incapacitation,” stated the ruling, authored by Justice Michael Lynch.
He was the sole dissenter in 2020, when the Third Department sent the case back to acting Supreme Court Justice Jonathan Nichols to delve into allegations that the school’s former Title IX coordinator, Chantelle Cleary, was biased against the male student. That 4-1 ruling was harshly critical of Cleary, a sex crimes prosecutor for Albany County District Attorney David Soares between 2010 and 2014. Authored by Justice Molly Reynolds Fitzgerald, that ruling said Cleary admittedly altered facts in a referral report to make it appear the male “penetrated” the female student.
Thursday’s decision said Cleary explained at a hearing that her report stated the encounter involved oral sex and that she did not accuse the male student of using force. Neither student was identified in the ruling.
“Although the foregoing indicates some misjudgment on Cleary’s part, the claim of bias is not convincing, and we are satisfied that the board made its own findings as to the nature of the encounter,” Lynch wrote.
Lynch said an audio recording of Cleary’s interview of the male student supported, to a degree, the male student’s claim that Cleary used an intimidating tone with him. Ultimately, it did not move justices.
“In these investigations, the parties are entitled to be treated fairly and every effort must be made to treat them in a professional manner,” Lynch stated. “However unfortunate Cleary’s tone with (the male student) may have been at times during the investigation, we are satisfied that the Board’s determination did not flow from any bias or impropriety on the part of Cleary.”
Lynch said Cleary, one of four investigators on the case, handled less than half of the witness interviews.
On the night of the incident, the male student had allegedly provided the female student and two other students with Xanax. The female said she had consumed a fourth of a beer and alcoholic juice drink. The male student said the encounter that followed was consensual. The next morning, the female student told him she did not remember the previous night. She later textmessaged him: “Last night was amazing, we should do that again” and “sorry to freak you out this morning, I just don’t remember anything that happened.”
At a hearing, the female student later said she knew she could not have provided affirmative consent to sexual conduct because she had no recollection it took place.
Presiding Justice Elizabeth Garry and Justices Sharon Aarons, John Colangelo and Andrew Ceresia supported the decision.