What is “nonconsensual sex”? Rape, right? Not at Yale, where the term can be applied to a variety of acts generally accepted as minor offenses or non-offenses in the real world. Since 2010 Yale has become the national center of efforts to whittle away the due process rights of students accused of sexual assault in campus hearings. Those efforts, undertaken to appease “activists” who want more males convicted in campus proceedings, have included Orwellian word games to expand the definition of rape. One of the first signs that this was happening came in 2011, when Yale concluded that causing someone to worry could come under the heading of sexual assault. In a footnote in a lengthy 2012 report on this new process, issued by deputy provost Stephanie Spangler, Yale conceded that the university uses “a more expansive definition of sexual assault than is commonly understood.” Claiming that a “worry” constitutes sexual assault is expansive indeed.
The national norm for campus sexual hearings is bad enough (no right to an attorney for accused students, determination of guilt by a very low 50.01 threshold–slightly more likely than unlikely that the alleged offense occurred). But Yale made these procedures worse, allowing accusers to file “informal” complaints that deny accused students the right to cross-examine their accuser, be represented by counsel, or even present evidence of innocence, all in the name of allowing an accuser to retain maximum control over the process. As Yale guidelines say, “the goal is to achieve a resolution that is desired by the [accuser].” Generally, we do not have processes in which the goal is to benefit the accuser, and this procedure is designed to give the accuser choice of and control over the process.
For a year, just how “expansive” this definition wasn’t wholly clear, until, in its February 2013 report, Yale unveiled a category called “intimate partner violence,” which spanned the gap from sexual assault to a student threatening a roommate with “economic abuse.”
So in two different ways, Yale has made it considerably more likely that the school’s students would be branded rapists. First, it changed procedures to make determinations of guilt more likely (or, in the cases of “informal” complaints, all but certain). Second, it dramatically broadened the definition of sexual assault to include activities that are not, in fact, considered sexual assault in any criminal jurisdiction in the country.
A Backlash over Language
The school clearly expected that these changes would satisfy the campus “activists” who had filed a complaint with the Office for Civil Rights, claiming that the university had so overwhelmingly failed to address claims of rape on campus that Yale stood in violation of Title IX. At the same time, the university retained at least one, small element of fairness. Though it created a process and a definition that deemed as “rapists” students who either clearly did not or likely had not committed a sexual assault, Yale generally punished the “convicted” students on the basis of what they actually did, which almost always fell short, and in many cases well short, of anything resembling sexual assault.
This one element of restraint was cold comfort for students caught up in the Yale disciplinary process. And, for the better part of two years, Yale’s combination of finding students culpable for sexual assault but punishing them for their actual offenses worked, in part because virtually no one (except, that is, for readers of Minding the Campus) actually read the semi-annual reports that the university produced.
Then, in August, and doubtless to Yale’s astonishment, the “activists” the university had worked so desperately to placate got around to reading one of the Spangler reports. Unfortunately, the university changed one term. In her August 2013 report, Spangler dropped references to “intimate partner violence” and instead described how several Yale students had been found guilty of “non-consensual sex”–a term that many readers, quite unsurprisingly, interpreted as interchangeable with rape. The report noted that all students so convicted had been punished, but none had been expelled. Since none of these students, it appears, had actually committed a rape, Yale selected punishments that were appropriate for their offenses. But to the critics, the university was allowing rapists to walk around campus with little more than a slap on the wrist.
This week the university produced a document, first reported by the Yale Daily News, which tried to explain its approach. (Of course, the obvious explanation–that Yale erred by redefining sexual assault to include a wide variety of actions that are not, in fact, sexual assault–was ignored.) The document listed eight “scenarios” that fit under the university’s extraordinarily broad conception of “non-consensual sex.” A few of these “scenarios” clearly constituted criminal conduct–yet in the myriad reports that Spangler has produced, there’s no reference to even one criminal investigation of sexual assault against a Yale student since 2011. It’s unclear why the school’s p.r. document contained scenarios irrelevant to the issue at hand.
Here, however, is another fictional example of what Yale considers “non-consensual sex”:
“Morgan and Kai are friends who begin dancing and kissing at a party. They are both drunk, although not to the point of incapacitation. Together they decide to go to Kai’s room. They undress each other and begin touching each other. Morgan moves as if to engage in oral sex and looks up at Kai questioningly. Kai nods in agreement and Morgan proceeds. Subsequently, without pausing to check for further agreement, Kai begins to perform oral sex on Morgan. Morgan lies still for a few minutes, then moves away, saying it is late and they should sleep.”
According to Yale, “Kai” is a guilty of having had nonconsensual sex, a term that most people would consider to be rape. Yet the new document notes that a student like Kai–who according to Yale actually was guilty of having taken “no steps to obtain unambiguous agreement”–would likely not be expelled. So, yes, Yale is guilty: but not of harboring rapists. Instead, the university is guilty of redefining a heinous criminal act in such a way that no one would recognize the term.
Disappointment from the Yale Daily News
The new Yale document did provide one intriguing new finding. Yale’s Title IX Coordinator, it turns out, “reports all cases of possible sexual assault to the Yale Police Department (YPD).” Why the school has chosen to have administrators rather than trained law enforcement officers investigate claims of sexual assault the university has not revealed. Could it be that Yale understands that turning cases over to law enforcement will produce fewer findings of guilt against its students?
This issue, alas, seems unlikely to be explored by the Yale Daily News. Campus newspapers can play an important role in standing up for students’ rights–an excellent example is the Duke Chronicle, whose coverage of the lacrosse case was consistently on-target, and whose articles and editorials demonstrated an impressive mastery of the importance of due process.
The Yale Daily News, unfortunately, doesn’t appear up to the task. In an editorial last Friday, the paper complained of the “University’s ineffective and embarrassing response to sexual violence, as we learned that those guilty of sexual assault remain on our campus.” Had the editors actually read any of the Spangler reports, or Yale’s own policies, and discovered that at Yale, being found “guilty of sexual assault” doesn’t mean the same thing that it does anyplace else in New Haven?
The editorial asserted that “the preferred punishment for nonconsensual sex at Yale must be expulsion.” Again, keep in mind that Yale’s definition of “intimate partner violence” includes threatening your roommate with “economic abuse.” The “preferred punishment” for such an offense, according to the student newspaper, “must be expulsion.” Expulsion for withholding money from a girlfriend or causing her worry? That ought to satisfy the “activists.”