Do witnesses in non-courtroom hearings have immunity from being sued like they do in court? That’s the question the U.S. Court of Appeals for the Second Circuit is asking in a new filing in a long-running case involving a Yale University student accused of rape by another student. The accused was found not guilty of all charges in a court of law, but Yale expelled him anyway, using a much lower standard of evidence – and backed by a culture that insists all accusations are true.
The accused student, Saifullah Khan, sued his accuser, who has not been named in court or the media, for defamation. He also sued Yale for numerous grievances including gender discrimination, breach of contract, negligent and intentional infliction of emotional distress, and more. On February 9, 2021, a district court dismissed Khan’s lawsuit, citing absolute quasi-judicial immunity. Khan, however, argued that “the proceedings of non-government entities cannot be quasi-judicial and, thus, Doe’s accusations of sexual assault in a private university’s disciplinary hearing are not shielded by absolute immunity,” the Second Circuit wrote.
Eugene Volokh, at Reason, noted that the Second Circuit has submitted a list of questions to the Connecticut Supreme Court regarding Khan’s case:
[1.] Under Connecticut law, can a proceeding before a non-government entity ever be deemed quasi-judicial for purposes of affording absolute immunity to proceeding participants?
[2.] If the answer to the first question is “yes,” what requirements must be satisfied for a non-government proceeding to be recognized as quasi-judicial? Specifically,
[a.] Must an entity apply controlling law, and not simply its own rules, to facts at issue in the proceeding? See Petyan v. Ellis, 200 Conn. at 246, 510 A.2d 1337; see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of Torts § 114, at 818-19 (5th ed. 1984).
[b.] How, if at all, do the “power” factors enumerated in Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693, and Craig v. Stafford Construction, Inc., 271 Conn. at 85, 856 A.2d 372, apply to the identification of a non-government entity as quasi-judicial; and, if they do apply, are these factors “in addition” to, id., or independent of, a preliminary law-to-fact requirement?
[c.] How, if at all, does public policy inform the identification of a non-government entity as quasi-judicial and, if it does, is this consideration in addition to, or independent of, a law-to-fact requirement and the enumerated Kelley/Craig factors?
[d.] How, if at all, do procedures usually associated with traditional judicial proceedings—such as notice and the opportunity to be heard; the ability to be physically present throughout a proceeding; an oath requirement; the ability to call, examine, confront, and cross-examine witnesses; the ability to be represented by counsel—inform the identification of a proceeding as quasi-judicial? See Craig v. Stafford Const., Inc., 271 Conn. at 87-88, 856 A.2d 372; Kelley v. Bonney, 221 Conn. at 568-70, 606 A.2d 693.
[3.] If it is possible under Connecticut law to identify a non-government proceeding as quasi-judicial, then, in light of responses to the above questions, was the 2018 Yale University UWC proceeding at issue on this appeal properly recognized as quasi-judicial?
[4.] If the answer to Question 3 is “yes,” would Connecticut extend absolute quasi-judicial immunity to defendant Jane Doe for her statements in that UWC proceeding?
[5.] If the answer to Question 3 is “no,” would Connecticut afford defendant Jane Doe qualified immunity or no immunity at all?
The Daily Wire previously reported on the details of Khan’s case. In March 2018, Khan was found not guilty by a jury in a court of law. While some could argue that “not guilty” does not mean “innocent,” the jurors I spoke to after the trial said that they saw Khan as innocent.
“He’s innocent, and the facts prove it,” said Elise Wiener, an alternate juror who saw the same evidence as the other jurors. “He was acquitted because he deserved to be acquitted and the prosecutor should never have brought the case in the first place.”
Wiener and main juror Jim Gallulo said they didn’t believe Khan’s accuser. At one point, prosecutors showed a still frame from surveillance footage that appeared to show Khan holding up his accuser (her name has not been released and she is referred to as Jane Doe in court documents). Prosecutors claimed this was evidence that the accuser was too drunk to even stand on her own and that Khan had to practically drag her to the dorms. The defense, however, played the actual video from surveillance footage, which showed Khan and his accuser walking arm in arm and appearing to be a happy couple.
That is how every moment on the evening of the alleged sexual assault played out in court. Prosecutors spun everything as evidence that Khan was forcing Jane toward sex. For example, prosecutors claimed Khan took the accuser’s phone at one point. Khan said that he was helping her find a ticket for a concert they were both attending. During the concert, Khan’s accuser threw up. Prosecutors described the situation in a way that made jurors believe the woman must have been really ill. But when defense attorneys produced the accuser’s dress from that night — which hadn’t been washed — there was only a faint trace of vomit.
The sexual encounter happened hours later. Keen observers will realize that vomiting actually removes much of the alcohol from one’s system.
Khan was found “not guilty,” and returned to Yale, but he still faced a pseudo trial at his university. The Yale kangaroo court found Khan responsible for sexual assault and expelled him. Many of the same people involved in Khan’s expulsion have been involved in other sexual misconduct “trials” for accused students who were also found responsible based on flimsy evidence or when there was exculpatory evidence.
In court documents reviewed by The Daily Wire, one of the named persons being sued by Khan is David Post. Post was the Yale administrator who convinced a student to file a formal allegation against former Yale basketball Jack Montague after another administrator reportedly suggested that Montague had assaulted another woman on a previous occasion.
Khan was born in a refugee camp in Pakistan six months after his family fled Afghanistan to avoid potentially being killed by the Taliban. He grew up in and around the refugee camp before fleeing to the United Arab Emirates. Khan, a bright student, applied to Yale and was accepted, but suggested he attend the preparatory Hotchkiss School in nearby Lakeville, Connecticut first. Khan accepted a full scholarship to Hotchkiss and Yale. Prior to attending Hotchkiss, Khan hadn’t even learned to use a knife and fork.
Khan knew his eventual accuser previously, and attended a Halloween party where he met up with her before a concert by the Yale Student Orchestra later that evening. Jane drank during the party and became ill during the concert and threw up on her costume. Khan and Jane left early due to the illness.
The pair walked together across campus — as seen in the surveillance footage mentioned earlier — and returned to their dormitory. Khan took Jane to her room and used his key card to swipe her in. A minute later, Khan used his key card to enter his own dorm room. Khan and his attorneys say that Jane called Khan to ask him to come back to her room.
According to Khan, once there, Jane asked him to check up on one of her friends, who had too much to drink that night. Time codes show that Khan used his key card in an area of the dorm he had no otherwise reason to be in — the area where Jane’s friend was sick. Khan returned to Jane’s room after checking on her friend, and Jane performed oral sex on Khan. Jane asked Khan to wear a condom, but she gagged on it and went into the bathroom to vomit, Khan says.
While she was in the bathroom, Khan called his girlfriend at another university, with whom he had an open relationship. Khan said he did not understand how an American girl might feel about him talking to another woman just after engaging in sexual activity, as Khan and his girlfriend were both from Afghanistan.
Khan and Jane then engaged in sexual intercourse and fell asleep in Jane’s bed. The next morning, Khan returned to his own room.
According to Khan’s lawsuit, Jane then started telling her friends she was raped, but told a campus health care worker that she had consensual unprotected sex. Jane then publicly accused Khan of rape and went to the Yale Women’s Center where she was advised to file a formal complaint against Khan. Based on her complaint, Khan was immediately suspended and police opened an investigation. Khan was charged but acquitted at trial based on the evidence laid out earlier in this article, as well as texts she had sent to Khan and the inconsistent claims she gave to authorities about their encounter.
Khan did not immediately return a Daily Wire request for comment.
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