Last week featured a rarity—the filing of criminal charges against a campus sexual assault accuser. Ashe Schow has a full write-up of the case, which originated when a Sacred Heart University student named Nikki Yovino accused two of the university’s football players of sexually assaulting her.
An affidavit prepared by the local police indicated that the football players were suspended, and thus presumably found guilty. (Sacred Heart has disputed the extent of the students’ punishment.) But Yovino later admitted to police that she made it all up, seeking to engender sympathy from another male student she wanted to date. As Schow points out, this motivation resembles the Jackie case at UVA.
What most struck me, however, was the defense offered by a university spokesperson: “Whenever there is any kind of incident at Sacred Heart University, we go to great lengths to ensure due process for all parties involved. The way that this particular case is playing out certainly demonstrates the validity of our procedures.” [emphasis added] Again, this was a case in which Sacred Heart’s procedures led to the punishments of students who were falsely accused.
Though Sacred Heart promises a “fair process,” nothing in its procedures suggests fairness. The university begins by announcing its dedication to “providing information and resources to the Sacred Heart University community about the risks and myths that contribute to sexual misconduct.” What these “myths” are the procedures don’t reveal, and a Sacred Heart spokesperson did not respond to a request for the information.
The university also uses an affirmative consent policy, which effectively requires accused students to prove their innocence. “Consent,” at Sacred Heart, “cannot be inferred from the absence of a ‘no’; a clear ‘yes,’ verbal or otherwise, is necessary.” The procedures are silent on how “otherwise” can yield a “clear ‘yes,’” and despite a claim to the contrary, other sections of the guidelines outline a policy in which anything short of an ability to prove a verbal “yes” is likely to yield a guilty finding.
The university considers “persons who are intoxicated” while having sex to be victims since they are “lacking the physical and/or mental ability to make informed and rational decisions or judgments.” The policies don’t explain what happens when both students are intoxicated.
Once a charge is filed, the Title IX coordinator, rather than an independent party, investigates. If the coordinator concludes it’s more likely than not that the accused student is guilty, he goes before a hearing panel of two administrators and one professor. This panel hears “the facts of the case from both parties”—but the accused student has no right to cross-examination, no right to call witnesses, and no right to full legal representation.
These procedures are no worse than those employed at many universities, though they also give the lie to the spokesperson’s claim that the institution goes “to great lengths to ensure due process for all parties involved.” But Sacred Heart’s sexual assault procedure has a clause I’ve seen at no other school.
“An allegation that is both intentionally false and malicious,” Sacred Heart explains, “may [emphasis added] be a violation of the Sacred Heart University Student Conduct Code.”
Consider this provision for a moment. A false rape allegation, in and of itself, is not a violation of Sacred Heart’s code—the allegation must be “intentionally” false. (The code provides no description of the distinction between a false and an intentionally false claim.) But even an “intentionally false” claim isn’t a violation—the claim must also be “malicious.” (The code provides no description of the distinction between an intentionally false and an intentionally false/malicious claim.)
But even then—even if Sacred Heart has encountered a sexual assault claim that’s both “intentionally false” and “malicious”—the accuser only “may” be guilty of a code violation. So under certain (unspecified) circumstances, a Sacred Heart student who filed an intentionally false and malicious sexual assault claim against a fellow student still didn’t violate the university’s disciplinary code. It seems that Nikki Yovino found the perfect university to attend.