The pros and cons of “informal complaints”

View full image

The sexual assault allegation that might or might not have ended the Rhodes Scholarship candidacy of Yale football star Patrick Witt ’12 brought new attention to Yale’s evolving system for dealing with sexual misconduct on campus. It also revealed a good deal of confusion about the “informal complaint” made by Witt’s accuser.

Some commentators assumed that because—as Witt’s communications firm pointed out in a statement—“no formal complaint was filed [and] no written statement was taken from anyone involved,” the incident, if there was one, must have been trivial. In fact, informal complaints are made about a wide variety of types of sexual misconduct, from unwanted sexual advances to, as university documents put it, “non-consensual sex/rape.” Here’s how the process works, according to Yale administrators.

Anyone in the Yale community who has a sexual misconduct complaint but prefers not to take it to the police can go to the newly formed University-Wide Committee on Sexual Misconduct (UWC). There, she (or he; men have often made complaints) can choose to bring either a formal or informal complaint. In the formal process, outside fact-finders are brought in to investigate, and an accused person found culpable could be disciplined and the finding could be entered in his or her Yale record.

In the informal process, there’s no extensive investigation, the complainant can remain anonymous, and no official disciplinary action is taken. At most, one or both parties could be referred for counseling, or they could agree to stay away from each other as part of a no-contact agreement. The goal, Yale’s description says, “is to achieve a resolution that is desired by the complainant and acceptable to the respondent, and to counsel and educate the parties.”

The reason Yale offers the informal process, administrators say, is to give as much control as possible to the person who feels victimized. “Many people who have been through an experience about losing control are very concerned about losing control going forward,” says Melanie Boyd ’90, an assistant dean of student affairs in Yale College. A victim may fear that making a complaint would lead to a painful, adversarial investigation; or that the accused could face arrest, expulsion, or other disciplinary measures harsher than the victim might want. “We don’t want [victims] to feel like it’ll suddenly spiral out of control,” Boyd explains.

A process that allows for anonymity also reduces a victim’s fears of gossip or retaliation. “If you file a formal complaint, and the person you filed it against finds out about it, you’re going to be dealing with a lot of people in addition to all of the stress you’re under from the incident and from the process,” says Victoria Sanchez, a Yale junior. “I could see cases where people are bullied. I wouldn’t want to deal with that. That takes a lot of courage.”

Philosophy professor Michael Della Rocca, who chairs the UWC, thinks many students with concerns about sexual misconduct would never come forward if they didn’t have the informal complaint option. “This is something that really is important to the student,” Della Rocca says. There have been more complaints brought to the committee than anticipated, he adds, and while it’s hard to know the reasons why, the informal complaint process may be a factor.

Last month, Yale released its first report on incidents of sexual misconduct—part of its effort to respond to last year’s Title IX complaint against the university. The report records 52 complaints of sexual misconduct in the last six months of 2011, made to the UWC, the campus police, or Yale’s Title IX coordinators.

The largest number of complaints were made informally to Title IX coordinators, and a majority of those involved harassment and inappropriate comments. In one case, a faculty member “who had been counseled previously” was “relieved of his teaching duties” over inappropriate remarks to a graduate student.

The UWC heard 12 complaints, 5 formal and 7 informal. The formal cases range from a complaint of unwanted touching (this charge was made by a male undergraduate against a female undergraduate) to a complaint that a male undergraduate had “committed acts of physical force, intimidation, and coercion” against a female undergraduate. (This charge was made by a Title IX coordinator.)

The informal cases include three described as “sexual assault”—which Yale defines as including “unwanted sexual contact, unwanted touching, non-consensual sex/rape”—and two described as “non-consensual sex.” The most common resolution was a meeting in which the UWC chair “counseled the respondent on appropriate conduct and imposed restrictions on contact between the parties.”

However satisfactory an informal resolution may be to the victim, some argue that the process has the potential to hide serious incidents from public view. “I do see value in informal proceedings, but certainly not for rape,” says Wendy Murphy, an adjunct professor at New England School of Law and former sex-crimes prosecutor. “I’m pretty fierce when it comes to making sure the most serious and formal proceedings are used to redress civil-rights harm, and rape is always a civil rights issue.”

Look at it this way, she says: if a student who has been seriously sexually assaulted or raped confides in an administrator, but wants to pursue an informal complaint, should he or she be allowed to do so? “The incentive to sweep sexual violence under the rug in the real world and on campus is strong,” Murphy says. “The real remedy to that is not to offer an alternative form of justice, or a less effective form of justice, because that just indulges those problems.”

Adds Alison Kiss, executive director of the nonprofit training and advocacy group Security On Campus, “If you have someone who’s reported an assault against a perpetrator, and there’s no formal process or investigation, my concern is, ‘what’s to say that he’s not going to do this again?’”

Administrators insist that such fears are unfounded. If the university determines that information presented in an informal complaint suggests “risks to the safety of individuals and/or the community,” as the recent report explains it, it can override the victim’s wishes to keep the complaint informal.

The informal process can work well for both the victim and the accused. But as Witt’s case shows, the assurance of confidentiality is key to that success. If a formal complaint had been filed against Witt, he would have had a right to due process: an investigation and a hearing. Since it wasn’t, and since the complaint was leaked to the Rhodes Trust and to the New York Times, it is now widely known that he was accused—but the details, and any defense he might offer, are still subject to a confidentiality agreement.

There have been no clues as to who told the Rhodes Trust, and Yale spokesman Tom Conroy says the university “is not investigating.” He adds, “Yale does not have any reason to believe that any Yale official violated confidentiality.”

Will the breach of confidentiality in Witt’s case discourage students from coming forward with future complaints? Perhaps, but some students suggest the opposite—that the revelations about Witt could spur more complaints, simply because they have sparked discussion about the complaint processes. Snigdha Sur ’12, a freshman counselor in Timothy Dwight, was trained to inform this year’s freshmen about the resources at the UWC. But early in the year, it didn’t come up much, she says: it was the Rhodes controversy that turned people’s attention to those issues. Because of Witt and Title IX, “I do think the campus is more aware.”