EXCLUSIVE: Autistic college student clears name after frivolous allegations
Marcus Knight—a student with autism, cerebral palsy, and learning disabilities—has prevailed in his lawsuit against Saddleback College, according to exclusive documents obtained this Sunday by TPM.
After being accused of sexual misconduct, Knight filed the lawsuit to clear his name.
Knight first came to national attention in 2018 after his attempts to make friends landed him in his college’s office for sexual misconduct (also known as a Title IX office). As a young man with autism, making friends has always been difficult for him, he told me.
One female student reported him because she was uncomfortable with Knight asking for fist-bumps, one of the “safe ways” he was taught to make friends, his mother said. Another student claimed Knight was looking at her weird and following her around campus.
And yet another woman complained that Knight had “over 300 photos” of her. (This was likely due to Knight’s cerebral palsy, which resulted in a motor tic as Knight attempted to press the “selfie” button on his phone with the woman, which was set to “burst mode”).
None of the three women who complained about Knight filed an official Title IX report.
Yet, despite this, and the fact that none of the women testified against Knight, the school’s Title IX Officer Juan Avalos still slapped Knight’s transcript with two Title IX infractions, possibly more.
The young women who reported Knight, Melissa Gold and Noemi Bueno Rojo did not respond to multiple media inquiries. Hannah Udall (now Torok), who also reported Knight for misconduct, initially said she would be happy to be interviewed but later declined.
In the initial suit against Saddleback College, Knight’s lawyer Mark Hathaway argued that Title IX officer Dr. Juan Avalos made unlawful errors during the investigation (such as not giving Knight an opportunity to defend himself).
One complainant, Melissa Gold, even declined to testify, saying she could care less.
“I have nothing to report. I don’t want to go over this any further. It’s done and I don’t go there (Saddleback College) anymore. This is irrelevant to my life now. I don’t care what happens officially at this point,” she told Dr. Avalos.
Later, Knight gathered 15 character witnesses to bring to his trial on campus. But Gold declined to testify and failed to show up. The hearing was called off. But somehow, Knight, then aged 19, still got slapped with two Title IX (sexual misconduct) sanctions.
These sanctions can be life-altering.
“We’re very scared. What happens when Marcus tries to transfer to a four-year university? Will the accusations follow him? I am terrified for his future,” Aurora Knight emailed me the night before the trial.
But last week, Knight went to court. The trial was short and Knight’s mother admits that she “didn’t really understand what was going on.” But shortly after, Aurora Knight messaged me: “We won!”
“The Court… hereby concludes that the findings and sanctions issued by Respondents [Saddleback College and Juan Avalos] against [Marcus Knight] should be set aside,” the court ruled.
“He is smiling! After court Mark [Hathaway] took a selfie with Marcus. Then we told Marcus he could do a selfie too … he was afraid to do so. But we told him that it was ok, and he finally did! He wants a fist bump and selfie party!”
“We fight for colleges and universities to treat everyone fairly so students do not lose access to education,” Mark Hathaway told TPM on Sunday.
“Saddleback College and Dr. Avalos are required to comply with the judgment and correct their records or be held in contempt and fined or jailed. We fight for colleges to treat everyone fairly so students do not lose access to education,” Hathaway added.
According to Aurora Knight, Saddleback has 30 days to remove the Title IX sanctions from her son’s record, she was told. How this all happened? She doesn’t know. “He was a great kid in high-school. No problems. Marcus just wants to be like everyone else.”
After her son was accused, Ms. Knight set up a GoFundMe to help pay for Marcus’s legal fees. Since then, more than 300 people have donated roughly $14,000, only eight thousand shy of her goal.
“We just want to put this past us,” said Aurora Knight.
TPM reached out to Leticia Clark, District Director of Public Affairs, to ask a number of questions following these developments. Clark said she was unable to answer a number of my questions on the record because the case is still considered “pending litigation.”
This is an ongoing story. TPM is tracking developments as they happen.
Toni Airaksinen is a columnist for PJ Media, The Post Millennial, and a digital media strategist for kosher restaurants and small businesses. She graduated from Barnard College in 2018, and has also published in USA TODAY College and Quillette. Follow the author of this article on Twitter: @Toni_Airaksinen.
The Justice Centre for Constitutional Freedoms has announced it is representing another esthetic salon against Jessica Yaniv at the British Columbia Human Rights Tribunal.
The She Point Beauty Salon, owned and operated by women of the Sikh religion, has become the newest target for Yaniv’s litigation after declining Yaniv a Brazilian wax. Yaniv then demanded a leg wax, but was also refused on the same grounds. In their Tuesday morning Press Release, the Justice Centre notes that leg waxes are performed in private with the client undressed or nude from the waist down. Citing religious and safety reasons, the salon refused Yaniv service.
The interaction occurred in August 2019, with the claim being filed at the BCHRT in October—the same month Yaniv lost a number of other identical complaints at the Tribunals. The complaints, made against mostly immigrant-owned aesthetic salons, were advanced due to some of the salon’s refusal to provide waxing services to Yaniv’s male scrotum. Other salons were asked to provide services to other parts of Yaniv’s body, but declined. All did so on grounds related to safety and/or religious restrictions on intimate-area touching between unrelated, unmarried males and females.
The Tribunals found that Yaniv’s gaggle of discrimination claims against the esthetic salons were “vexatious, calculated” and, in part, motivated by racial animus against persons from South Asia and the Sikh, Hindu, and Muslim faiths. The complaints, which varied in cost-demands of up to $500,000, were dropped to fanfare and global praise of the BCHRT.
Yaniv was subsequently ordered to pay $2,000 each to three of four clients represented by the JCCF for improper conduct. On November 8th 2019, the JCCF filed an enforcement order against Yaniv with the Vancouver Law Courts to ensure the estheticians would be paid their money via possible collections action. Yaniv’s appeal to the Tribunal to retry the case was denied.
“Women have a constitutional right not to be compelled to touch biological males in an intimate or highly personal manner if they are not comfortable doing so,” says Jay Cameron in the JCCF Press Release, the lawyer who represented five other aestheticians in Yaniv’s 2019 claims. “Like male genital waxing, our client does not offer male leg waxing services to the public, and we intend to vigorously defend against this targeted harassment on behalf of our client.”
As 2019 winds down, a year after the Trudeau government introduced significant changes to our legal system, the courts have wound up in a state of chaos.
New rules of evidence in sexual assault trials came into effect a year ago which were intended to strengthen the protections and privacy rights of complainants. Despite the dire warnings of criminal defence lawyers, Bill C-51 was implemented and the constitutional challenges began.
The primary issue with the new rules of evidence is what’s referred to as reverse disclosure, and the new requirement that all records (like text messages or emails) in the possession of the accused must be revealed to a complainant prior to trial. The purpose was to avoid ambush during cross-examination and to give the complainant the ability, with legal counsel, to either block the evidence from the trial or limit the way in which the records could be used.
Of course, the effect of these hearings, if held in advance, would warn the complainant of the defence material and strategy prior to testimony. It would allow the accuser the time and ability to tailor the testimony to avoid impeachment.
In a National Post article, Brian Platt provides a thorough summary of the fallout across the Canadian courts as judges come to different conclusions on whether or not the new rules violate the accused’s right to a fair trial. Platt discusses some of the recent decisions pointing out that “some judges have upheld the legislation, others have declared it unconstitutional, still others have found serious problems but suggested on-the-fly solutions to save it.”
In an article on his website, criminal defence lawyer Joseph Neuberger notes “the split decisions on how to apply the new legislation has created an uncertainty and the reality that two different people charged with the same crime will find themselves facing different rules at trial. The blame for this chaos falls squarely at the feet of our lawmakers who have rushed to please partisan interest groups at the expense of due process.”
In intervener submissions to the Supreme Court in March, 2019, defence lawyer Marie Henein stated “while [an advance hearing] allows the trial judge to put defence counsel on a leash, there is a difference between a leash and a choke chain. There is a difference between corralling someone and hogtying them.”
And the new rules go well beyond sensitive issues involving evidence of a sexual nature. Bill C-51 added section 278.92 which declares all records in the possession of an accused to be presumed inadmissible unless approved in advance hearings. That captures all communications between a complainant and accused even in the absence of sexual content.
The definition of “record” was originally crafted to address requests for third party documents that would have an expectation of privacy, such as medical or counselling records. Some defence lawyers have successfully argued that evidence in their possession does not qualify as a “record” because the complainant’s privacy concerns are not engaged.
In a recent Ontario decision, R v W.M., Justice Davies found that once a complainant makes a serious criminal accusation the expectation of privacy changes. “Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now.”
Justice Davies went on to consider the other consequences of determining that all communications trigger privacy rights by noting those rights would then extend to the accused. Davies notes that complainants often provide electronic communications to the police in support of an accusation and “if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant.”
This reciprocal application of the law, that would protect both complainants and the accused equally, connects to recent Supreme Court decisions which could start complicating sexual assault trials for Crown prosecutors.
The Supreme Court of Canada has declared that rules of evidence in sexual assault trials apply equally to both the defence and prosecutors regardless of who introduces the evidence. Both sides must comply with the legislation. These evidentiary rules are set out in sections 276 and 278 of the Criminal Code.
Writing for the majority, in R v Goldfinch, Justice Andromache Karakatsanis stated that “Crown-led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer.” The Seaboyer decision in 1991 had thrown out the previous “rape-shield” provisions as unconstitutional and laid guidelines for determining whether or not evidence had sufficient probative value that outweighed the risk of prejudice.
What this means is that prosecutors must also now obtain prior judicial guidance on what evidence they can use in their case against the accused. They can no longer freely lead evidence from a complainant that references other sexual activity just because it favours the complainant. To put it simply, what’s good for the goose is good for the gander.
This is an important issue with the way sexual assault trials are currently conducted. Too often a complainant will give testimony about prior sexual acts or relationships and the defence is not permitted to properly cross-examine on that evidence.
The primary, forbidden lines of reasoning in legal arguments are referred to as the “twin myths”: that a complainant is more likely to have consented or less worthy of belief because of prior sexual activity. When looked at from reverse, it would be equally wrong to argue that prior lack of sexual activity would make the complainant less likely to consent or more worthy of belief.
In the past, complainants have been allowed to testify that they were a virgin prior to an alleged incident while the accused is not permitted to adduce evidence regarding absence of virginity. This had been justified in appellate courts by the claim that prosecutors were using the evidence of virginity as a “physical state” not as reputation evidence. Of course a jury would likely take this evidence to mean the complainant was less likely to consent but the Supreme Court has not made any rulings on this issue.
Indeed, in a July 31, 2019 Supreme Court decision, R v R.V., the majority decision declined to consider “whether sexual inactivity is captured” by the legislation. Despite not determining the issue, Justice Karakatsanis, who delivered both majority decisions in Goldfinch and R.V., agreed with Justice Paciocco that “it would be incongruous to hold that the statement ‘I am a virgin’ does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity.”
Having decided the case on other issues, Justice Karakatsanis stated they will “leave this issue for another day.”
That day may have arrived.
In a December 19, 2019 verdict from the BC Court of Appeal, the majority overturned a conviction in the case of R v Langan on the grounds that Crown led evidence that should have been subjected to the new rules enacted by Bill C-51.
Justice Stromberg‑Stein wrote for the majority that “whether sexual history evidence is sought to be admitted by an accused person or by the Crown, the same principles apply.” The prosecutor had entered text messages into evidence in which the complainant told her ex-partner in advance that she would not be having sex with him that weekend.
This evidence appears to have been used to bolster the credibility of the complainant, implying that a prior sexual refusal made her less likely to consent after he arrived for the visit.
It is well established that complainants cannot give advance consent, retaining the right to withdraw consent at any time. Additionally, complainants are not required to fight back or verbally resist sexual activity to prove a lack of consent. The onus is on the accused to acquire positive communications of consent whether through words or actions.
As with the problem of the virginity question, if advance verbal rejection of sexual activity is taken to mean the complainant was less likely to have consented then the reverse logic would imply advance verbal consent makes the person more likely to have consented or less worthy of belief.
The public is regularly inundated with stories and claims in the media that the justice system is failing complainants. Every acquittal is deemed a failure and every conviction is celebrated as a triumph. In response to public outrage, the new rules governing sexual assault evidence were implemented by Bill C-51 to improve conviction rates and make it easier for complainants to come forward with their allegations.
Meanwhile, the public is left with a void of information as to what kind of evidence is really being blocked in court as a result. The Goldfinch case was sent back to trial, the acquittal overturned, simply because Mr. Goldfinch was permitted to tell the jury that he and the complainant had been “friends with benefits” to give “context” to their relationship.
The conviction in the R.V. case was restored after the complainant was allowed to testify that she remained a virgin, despite being pregnant, and the accused was not permitted to fully cross-examine her on whether or not she’d actually had intercourse with someone else that fateful summer.
In the new Langan case, which will probably go to Supreme Court because one appellate judge dissented, the same text messages that were used by the prosecutor to gain a conviction would have been presumed inadmissible if introduced by the accused without a proper hearing.
While we wait for a final decision on whether or not text messages count as a record with an expectation of privacy, or whether or not evidence of sexual inactivity requires the same evidentiary hearings, thousands of people are stuck in limbo. While judges grapple with the question of whether or not the new legislation is even constitutional every trial outcome, both acquittals and convictions, could be overturned if the judge’s ruling is later deemed incorrect.
It is not easy to completely break the legal system in a country like Canada. It takes a lot of audacity and recklessness to wreak the havoc enacted by the Liberal government with Bill C-51.
Because the new rules of evidence hadn’t been in effect during the cases before the Supreme Court at the beginning of the year, the rulings made in cases like Barton, Goldfinch and R.V. have not had to deal with the impact it will have now that Crown prosecutors have to follow the same onerous pre-trial rules.
Because Bill C-51 was crafted and passed into legislation before these Supreme Court decisions, the consequences on the Crown weren’t taken into consideration when they voted to pass the bill. If parliament had known their new rules would also hobble the prosecution of sexual assault allegations I wonder if they might have paid more attention to the defence lawyers who demanded caution.
As it stands, prosecutors will now have to figure out how to build a case if they aren’t allowed to mention things like a lack of prior sexual history or evidence that the complainant would “never” have agreed to specific sexual acts. Prosecutors may have trouble obtaining or using text messages that complainants wish to rely on. After all, the government expanded the new rules to cover all evidence in a sexual assault trial, not just those of a “sexual nature.”
With the reciprocal requirements now affecting both sides, no evidence from either prosecutors or defence will be deemed admissible without prior permission from a judge. It’s probably the first government in the modern world to think presumptively barring all evidence in a criminal trial was a good idea. Hopefully, the Supreme Court can set this right and fix it quickly.
Meanwhile, what a brave new world.
Dr. Christine Blasey-Ford was awarded the Roger Baldwin Courage Award by the ACLU on Sunday. Named for ACLU founder Roger Baldwin, the Roger Baldwin Courage Award honours those who embody his view that “so long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.” We’re not altogether sure what rights Dr. Christine Blasey Ford was fighting for when she testified about an alleged assault before the U.S. Senate, but she just got an award for doing so.
Blasey Ford, a political pawn used in the efforts to railroad Supreme Court Justice Brett Kavanaugh with false accusations, is not a courageous person but she certainly did play one on TV. Honouring a person who made a baseless accusation seems a stretch for an organization that prides itself on advocating for civil liberties, truth, and justice.
As Kavanaugh himself stated to Senators at the time, “All of the people identified by Dr. Ford as being present at the party have said they do not remember any such party ever happening. Importantly her friend Ms. Keyser has not only denied knowledge of the party. Ms. Keyser said under penalty of felony she does not know me, does not ever recall being at a party with me ever.”
But the story of Dr. Blasey Ford had as much, if not more, to do with optics than anything that actually happened in Chevy Chase, Maryland, in the summer of 1982. For the Democratic Senators, Ford’s hearing was something of a redo of Anita Hill’s testimony against Justice Clarence Thomas. It was a chance to get back what they felt they had lost.
So how is this woman, who is at best, someone who was manipulated by political actors to participate in a show trial, and at worst, a malicious false accuser, being touted as an American civil rights hero?
Mollie Hemingway and Carrie Severino, in their book Justice on Trial, sum up the peculiar victimhood bias that has propelled Blasey Ford to the status of resistance icon despite her clear flaws as a witness: “her credibility, if anything, was viewed as stronger because of her lapses in memory and because of the odder parts of the story, such as her description of how she came to tell her husband about the assault.”
The ACLU are basically giving Blasey Ford an award for participating in a moral panic. One complete with trauma-informed recovered memories and everything. It’s a shame. The ACLU we remember actually cared about facts, due process, and protecting individuals from a mob mentality. Now they are the mob.
The ACLU was once a respected and vital institution that fought for Americans’ constitutional rights regardless of ideology. In its esteemed history, the organization has spearheaded landmark cases before the Supreme Court.
In the 1931 case, Stromberg v. California, the ACLU successfully reversed the conviction of a communist for displaying a red flag, on the grounds that the conviction violated his first amendment rights. This was one of many cases they took to the Court to defend the rights of people to express their political views. They brought the case of the “Scottsboro Boys” to the Court to fight for the rights of African-Americans to both effective counsel and a fair trial.
The ACLU defended freedom of public assembly, the rights of religious persons, voting rights, fought against censorship, for housing rights, and against school segregation. And that just gets us from the early 20th Century to the mid-1950s. They were all about keeping the government out of the minds and hearts of individuals. But now the ACLU has clearly jumped the shark.
In recent years, their partisan perspective has become transparent. No longer the last greatest hope of people who feel their rights are in jeopardy, they are more interested in clamping down on individual liberty than elevating it. It’s the ACLU that brought the Aimee Stephens case to the Court in the 2019 term, which will require the Justices to either rule that biological sex is real or that it’s a fiction.
In 2015, they sided with the government that would require employers to provide contraceptive care even if that went against their religious beliefs. And it was the ACLU that argued that a Colorado bakery that didn’t want to make a cake for a gay wedding was discriminatory.
The last-minute intercession by House Democrats, orchestrated to thwart Brett Kavanaugh’s Supreme Court nomination, created a circus of pointlessness and panic in the Capitol. And the ACLU thinks that this partisan act, that Blasey Ford has admitted was inspired by her desire to not have another conservative on the bench who could vote for the overturning of Roe v. Wade, was courageous.
The new ACLU seems hell-bent on undoing its legacy of protecting the constitutional rights of Americans. Instead of protecting your speech, they are pushing compelled speech. Instead of standing up for women’s spaces, they are pushing for biological men to be let in to dominate and intimidate women.
And in the case of this newest Blasey Ford debacle, instead of celebrating individual courage, they are lifting up the cynical, underhanded political cowardice that made her a thing in the first place.
Jessica Yaniv, a transwoman who rose to infamy after she took a number of immigrant, racialized at-home salon workers to the B.C. Human Rights Tribunal (BCHRT) for declining to provide services to her male genitalia, applied for her appeal to be heard by a new Tribunal member. She claimed bias against Devyn Cousineau, according to the 5-page document released today by the BCHRT. The appeal was declined.
Cousineau, who has a background in anti-poverty and human rights law and holds a law degree from the University of Victoria, stated she did not feel Yaniv’s claims that she had been biased in her decision were accurate. According to the document, Yaniv requested the appeal decision be made by a different member on the basis that Cousineau had been pressured and “harassed by members of the public via Twitter” to rule in favour of the salon workers.
“It is my ethical and legal obligation as a member of this Tribunal to decide cases based on the evidence before me and not based on public sentiment,” Couseineau wrote in response to the assertion.
In a recent comment given to The Post Millennial, Yaniv stated that the Tribunal ruling had been a “total misunderstanding” full of “inaccurate information.” In the BCHRT appeal document, nine areas of complaint are listed where Yaniv asserts the Tribunal was “wrong”.
These areas, including that Yaniv targeted certain ethnic groups, declined her services because of her scrotum, and that she manufactured the conditions of her complaints–deliberately attempting to provoke situations where she could claim she was being discriminated against–were listed by the BCHRT as findings of fact.
Findings of Fact
Yaniv allegedly also claimed the appeal was necessary as the decision negated to consider transgender women who required hair removal for “surgery.” Cousineau writes that this “was not an issue raised at any time in [Yaniv’s] complaints.”
One of the most striking points of the document was Yaniv’s claim to be unable to pay the improper conduct costs awarded by the BCHRT to the salon workers. These awards were $2,000 each to three of the four women represented by the Justice Centre for Constitutional Freedoms.
Citing “anti-trans harassment and attacks” Yaniv sought a reduction of costs. This was also declined by the BCHRT, with Cousineau concluding that if Yaniv wants to challenge the final decision, she must do so in court.