The OCR’s “Dear Colleague” letter (2011) from the Obama Department of Education can be seen as a convenient starting point for the current war on campus due process for accused students—but a handful of elite schools actually made moves earlier.
1) Duke responded to the lacrosse case by revising its sexual assault policies to substantially broaden the definition of campus rape. (“The higher IQ, the more manipulative they are, the more cunning they are,” remarked the head of the Duke Women’s Center.
2) Stanford started training its disciplinary panel members to infer a logical defense by the accused student as a sign of guilt.
3) Yale, as part of an agreement with OCR, revised its procedures and promised biannual reports from Yale deputy provost Stephanie Spangler.
Over the past three years, these Spangler documents have provided a first-hand illustration of what passes for due process at one of the nation’s leading universities. From them, we learned that more than a half-dozen Yale students (including former quarterback Patrick Witt) had been found culpable for sexual assault under “informal complaint” procedures that provide no grounds for an accused student to present evidence of his innocence. The latest Spangler report has now been released. It suggests that due process still stands in short supply on the New Haven campus.
Last semester’s Spangler Report revealed that no sexual assault cases were handled through the “informal complaint” procedure. I speculated at the time that this development might have represented a response to outside criticism, which has focused on the guilt-presuming nature of Yale’s “informal” process, which allows the finding of culpability on the basis of an accuser’s “worry” and promises the accuser “considerable control . . . as the process unfolds.”
My speculation, it turns out, was wrong. Seven cases this semester have gone through the “informal” process—which can best be seen as a kind of “Scarlet Letter” approach. That is: given the limitations on the accused student’s ability to present evidence, it’s almost impossible for an “informal complaint” to end without the accused student being branded a rapist. But beyond the branding, Yale allows only limited punishment through the informal procedure. Of the six students (one case remains pending) who faced charges of sexual assault through the “informal complaint” process, each received the same punishment—“counseling” and a prohibition on contacting the accuser.
Exoneration First, Punishment Later
For one student last spring, the allegation was just the beginning. Yale’s “formal complaint” procedure prevents the accused from having an attorney as part of the process; brands the accused a rapist based on a 50.01 percent finding from a panel specially trained panel; and denies the accused any right to cross-examine the accuser. Even under these guilt-tilting procedures, one accused student was found not culpable—meaning that Yale’s disciplinary panel concluded that it was more likely than not he was the subject of a false allegation.
The outcome of the case? The accused student was punished. He received a no-contact order with his accuser (there was no reciprocal order)—meaning that if the two happen to enroll in the same course, the accused student would need to drop the class; or if the two happened to be assigned to the same dorm, the accused student would have to move.
Yale also referred the accused student for “sexual consent training.” (Yale’s website contains no description of what this “training” entails, but here’s a summary from a feminist blog.) Again: Yale concluded that it was more likely than not that the accused student was the victim of a false allegation. Yet even though Yale’s own accuser-friendly procedures concluded that it was more likely than not the accuser leveled a false allegation, the accused was punished, while the accuser received no punishment of any sort.
In the several years of Spangler reports, there never has been any indication that Yale has punished even one student for filing a false claim of sexual assault.
Does the Punishment Fit the Crime?
Given the one-sidedness of Yale’s procedures, it comes as little surprise that most of the students accused of sexual assault were found culpable. But two cases—reflecting differing ends of the spectrum regarding due process problems—particularly stood out.
In the first case, a student was accused of sexual assault, and found guilty by the UWC (the Yale body that handles sexual assault complaints). As punishment, he was suspended for a year, and received no-contact and sexual-consent training orders.
Assume, for the sake of argument, that the student actually committed the allegations of which he was accused. (And, given the minimal protections Yale provides to accused students, that’s a big assumption.) Given the punishment he received (a one-year suspension, after which he can return and eventually receive a Yale degree) strongly suggests that his actual offense was not “sexual assault,” at least as the term is commonly understood outside of the typical campus. Yet because of Yale’s extraordinarily broad definition of the term, the student has been branded a rapist for life, and he likely will be foreclosed from any job that involves a background check that would access his college transcript.
In the second case, the accuser (after discussing matters with Yale’s Title IX coordinator) elected not to file a formal complaint against the accused student. But even in a case without an accuser, Yale went ahead, and charged the student with “sexual assault.” (To Yale, the Anglo-Saxon tradition of an accused being able to confront his accuser seems quaint and old-fashioned.) And in a case relying wholly on hearsay, words of an accuser who chose not to participate in the proceedings, Yale deemed the student a rapist and expelled him.
It’s clear from the disparate punishments that the alleged offense in the second case was much more serious than the first case, even though both students were deemed rapists by Yale.
The Title IX Twist
In her e-mail announcing the new report, Spangler announced that she was “encouraged” that in the past semester, Yale had more reports of sexual assault than in the past. (In any normal environment, news of an increase in violent crime would be horrifying.) Spangler’s encouragement comes despite a grand total of two cases actually being reported to police during the spring 2014 semester. In one of those cases, the accuser declined to press charges; in the second, a grad student said she was the victim of an attempted rape by an “unknown” male—who might or might not have been a Yale student.
Most the increase (eight cases) celebrated by Spangler came from a procedure beyond the formal and informal complaint process—the activities of the Title IX coordinator (whose job description, obviously, suggests its occupant won’t exactly be a civil libertarian on questions of sexual assault complaints). Spangler’s report helpfully notes that the Title IX coordinator does not “conduct formal hearings.” Yet the coordinator (without even the minimal protections for the accused provided by Yale’s hearings process) can investigate complaints, and can “achieve a resolution of the complaint, which may include sanctions” while installing “interim measures to support and protect the complainant during an investigation.”
One of the Title IX cases from the spring provides a sense of the Orwellian nature of the Title IX coordinator’s work. “A third party reported,” according to Spangler, “that more than one female [Yale] student, whom the reporter would not identify, [emphasis added] was sexually assaulted by a male Yale student.”
Or, in plain English, a Yale student is now being investigated as a serial rapist, with the possibility of sanctions—even though none of the females he allegedly raped have filed a complaint, or have even been identified. How any student could defend himself against such a charge is unclear.
Spangler’s report reveals that the “case is pending.”