Yale’s Bizarre Sexual Misconduct Hearings
February 1, 2013
In early 2012, Yale University admitted that its campus grounds are a hotbed of violent crime–far more dangerous, in fact, than the surrounding high-crime areas of New Haven. That, at least, was the finding of a document produced by Deputy Provost Stephanie Spangler, who claimed to offer a “comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions.” She buried in a footnote that the university “uses a more expansive definition of sexual assault” than required either under federal law or by the New Haven Police Department.
Under its Title IX settlement aimed at weakening due process rights against students accused of sexual assault, Yale agreed to produce this sort of report every six months, and Spangler’s latest offering has just appeared. The university has slightly changed the report’s organization in such a way as to make it more difficult to identify pending cases under the “informal complaint” rubric– the procedure Yale recently introduced to maximize the accuser’s control of the process through, among other things, prohibiting the accused student from cross-examining his accuser or introducing evidence of innocence. Nonetheless, the document provides important insight into the utter lack of due process for accused students and the dangers of the university’s extraordinarily broad definition of what constitutes sexual assault.
For the most part, the report paints a depressing picture of a campus indifferent to due process or even going through the motions of finding the truth on allegations of sexual misconduct. Perhaps the report’s most troubling finding–one wholly ignored by Spangler–centers on Yale’s upside-down approach to law enforcement. On matters relating to any type of sexual misconduct, the New Haven Police are basically avoided, the Yale Police Department tends to materialize on charges that fall toward the less serious end of the spectrum, and the most serious claims–sexual assault or “intimate partner violence”–are reserved for the Yale disciplinary process, where both due process protections for the accused and evidence-gathering capabilities for the prosecution are at their weakest. Finding the truth about sexual assault claims, it seems, is not a high priority.
‘Economic Abuse’ Is Intimate Partner Violence?
The “intimate partner violence” category is a new addition to the Yale lexicon; the framework did not appear in Spangler’s February 2012 report. The Yale website defines the allegation as “the actual or threatened physical, sexual, verbal, emotional or economic abuse of an individual by someone with whom they have or have had an intimate relationship. Often, that relationship is sexual, but not always–IPV can take place between roommates, for example.” That Yale is now conflating sexual assault–probably the most serious violent crime other than murder or attempted murder–with “threatened . . . economic abuse” of a roommate (what, exactly, is “economic abuse”?) shows just how far off the rails the Yale procedure has gone.
From the start of July through the end of December, the Yale Police Department was involved in eight cases, including one case referred to the YPD by the university’s Title IX coordinator. Seven of the cases involved contact between a Yale student or employee and someone outside of the Yale community; the eighth involved a current and a former student. Three of the cases (for harassing communications, stalking, and physical assault) resulted in arrests by the YPD. Only one of these YPD-related eight cases–in a complaint filed by someone outside of Yale against a male Yale staff member–involved a claim of sexual assault. The report indicates that “the YPD investigation is pending. In the meantime, the staff member’s employment was terminated.”
According to the report, then, not a single allegation of sexual assault in the last six months of 2012 made by a Yale undergraduate or graduate student was, or likely will be, investigated by any law enforcement authority; or will result in a trial in which the accused student has the right to counsel and to cross-examine his accuser.
Several of the cases involving faculty or staff reflect the university’s indifference to the pursuit of evidence or respecting due process. For instance, the report indicates that “an anonymous individual reported that a staff member engaged in unwanted touching of a sexual nature with students. An investigation by a Title IX Coordinator did not substantiate the allegations. Nonetheless, the Title IX Coordinator counseled the respondent and discussed the incident with the respondent’s supervisor, who conducted training on sexual misconduct for the department.”
No Word on Who’s Investigating
The anonymous complaint couldn’t be corroborated. Nonetheless, the employee was “counseled.” Or take this item: “An anonymous faculty member reported that the behavior of a male faculty member created a climate of sexual harassment. The case is pending.” Who’s investigating? Given that Yale’s informal complaint procedure maximizes the accuser’s control of the process, how can the anonymous accuser be satisfied? The report doesn’t say.
Several staff or faculty-related complaints involve allegations of “inappropriate comments of a sexual nature” to a female accuser. Yet, as FIRE has long pointed out, most universities define “inappropriate comments of a sexual nature” so elastically that the report is meaningless. Yale, for instance, is currently investigating a grad student’s claim that an unnamed number of other grad students made “inappropriate comments of a sexual nature” to her and an unnamed number of other grad students. How, possibly, could such a diffuse claim be an appropriate matter for a college disciplinary process? In another pending case, an anonymous graduate student “reported that a male non-Yale individual made inappropriate remarks of a sexual nature.” Were these “inappropriate remarks of a sexual nature” even made to the anonymous student? How does a Yale procedure have jurisdiction over a “male non-Yale individual”? The report doesn’t say.
Sexual Assault and “Intimate Partner Violence”
The heart of the report, however, involves nearly two dozen allegations of sexual misconduct by one Yale student against another. At least six of these were allegations of sexual assault or “intimate partner violence” (the report doesn’t make clear precisely what type of “intimate partner violence” was alleged–for instance, did a female accuser claim sexual assault, or did a student claim that his roommate threatened him with “economic abuse”?). Not a single one of these claims were reported to the Yale Police Department or involved formal law enforcement in any aspect of a criminal investigation. There is no indication that any of these claims resulted in the collection of a rape kit or examination of any other type of medical evidence.
Four of these allegations were either uninvestigated complaints or fell into Yale’s transparently unfair “informal complaint” procedure. In the late 2011 report, all claims of student-against-student sexual assault fell under this rubric; in the late 2012 report, there were two formal complaints (one of an unspecified type of “intimate partner violence,” the second of “nonconsensual sex”) filed by female Yale undergraduates.
Yale’s formal complaint procedure is, on paper, slightly fairer to the accused student–he has, at the least, a right to present some evidence of innocence, and there’s a 24-month statute of limitations. But the process is nonetheless wildly tilted in the accuser’s favor. Bowing to the OCR mandate, guilt occurs by a preponderance of evidence, and double jeopardy allows an accuser to appeal a not-guilty finding. The allegation is heard not through Yale’s standard disciplinary process but through the University-Wide Committee on Sexual Misconduct (UWS).
Under the formal complaint procedure, a five-person UWS committee appoints an allegedly “impartial fact-finder,” who gathers “documents and conduct interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint,” and then prepares a report.
Following receipt of the report, a hearing before the five-person panel occurs. The accused student cannot call relevant witnesses unless he can prove to the UWS committee, in advance, that the witness “can offer potentially relevant information that was not conveyed to the fact-finder,” and the panel has “sole discretion” on calling witnesses. Neither the accused student nor a counsel acting on his behalf can cross-examine the accuser, or even be in the same room with her when she testifies. The accused student can submit questions for the panel to ask the accuser–but the panel has “sole discretion” on whether to ask the questions. The panel “may”–but, incredibly, is not required to–“examine and take into account reports and evidence collected by law enforcement bodies,” if such an investigation occurred. The accused student can then be branded a rapist–again, on a “preponderance of the evidence”–on a 3-2 vote of the UWC committee. This is little more than a Kangaroo Court.
Unfair to the Community Too
While the Yale “formal procedure” is, obviously, unfair to the accused student, it also can be unfair to the campus community as a whole. Take, for instance, the case of a male graduate student charged “with acts of intimate partner violence against a female [graduate] student. The UWC found sufficient evidence to support the allegations. The respondent was given a two-semester suspension, was restricted from contacting the complainant, and was required to attend sexual harassment training.”
Assume, for the sake of argument, that the UWC investigation was fair (that’s hard to imagine, but not impossible) and that the student actually was guilty of the allegations against him. In that case, after a year away from school, a potential rapist will return to campus, and no one on campus will be any wiser.
This is the safe environment the UWC claims to foster?