The toughest issue on (any) campus

Mark Ostow

Sexual misconduct—and how to handle charges of sexual misconduct—has emerged as one of the most contentious issues in colleges and universities nationwide. The Yale Alumni Magazine brought together four people (one by Skype) with knowledge of the issues for a panel discussion moderated by the magazine’s board chair, Joanne Lipman ’83 (at left). View full image

The background

Two Yale undergraduates—let’s call them Ryo and Casey—are dating. They eat together, they study together, they spend their free time together. Ryo wants to have sex, and persuades Casey, who ultimately agrees. But in the heat of the moment, Casey says, “Wait—stop—that hurts.” Ryo continues for a few minutes...and then apologizes afterward, saying they were past the point of interruption.

Yale has a way to deal with situations like this one. Ryo gets expelled.

Is the penalty fair?

Few issues are as contentious on American campuses as sexual misconduct policies. In part because of pressure from the Obama administration, Yale, along with other universities, has beefed up its enforcement efforts in recent years, in ways that may well be unrecognizable to alumni. The Ryo-Casey scenario is one of several hypothetical situations Yale provides to explain how the university defines sexual consent. In this situation, “while there was initial consent, that consent was withdrawn,” and thus, the “penalty would be expulsion.”

The rules at Yale, which are similar to rules at colleges elsewhere, have sparked ferocious debate. Do they sufficiently protect the victims? Do they go too far, unfairly punishing the accused? For that matter, are universities equipped to handle sexual misconduct cases at all? Or should this be a matter solely for law enforcement?

Yale’s policy encompasses a web of rules, along with multiple ways to report misconduct, including both “formal” and “informal” complaints (see sidebar). But a student survey earlier this year found that students are confused about what the rules are, how to file complaints, whom to contact, and what are the rights of both alleged victims and the accused. “Misinformation and confusion” abound, concluded the April 2015 report by the Yale College Council and the Yale Women’s Center.

Perhaps the confusion isn’t surprising. On this issue, there’s no agreement on even the most basic statistics. A White House task force quoted an estimate that one in five female college students has been sexually assaulted—but other estimates are all over the map. So are the definitions of sexual assault. Yale and other colleges have a broad definition that goes beyond forcible assault to include any kind of sexual touching without consent. Yale also requires “affirmative consent” for every sexual act every time, something it defines as “an unequivocal ‘yes’ (verbal or otherwise), not just the absence of a no.” And it notes that the affirmative consent rules apply to “the full range of nonconsensual sexual activity, not just those acts that would meet a criminal standard.”

Mark Ostow

Joanne Lipman ’83 (moderator), chair of the governing board of the Yale Alumni Magazine, is working on a book about bringing men into the conversation about gender, based on her 2014 Wall Street Journal article, “Women at Work: A Guide for Men.” She is a former Wall Street Journal editor and the former editor-in-chief of Conde Nast Portfolio magazine. View full image

To clarify its policy, Yale created, and posted on its website, hypothetical examples like that of Ryo and Casey. Others include a case in which two students are dating, but one says, “We shouldn’t do this” and begins to cry before continuing to have sex with the other. (“Initial consent was followed by ambiguity...penalty would likely fall in the range of probation to suspension.”) In another, two students are drunk; one performs consensual oral sex on the other, but the other begins to perform oral sex without first checking. (“There was initial agreement, but the bounds of that agreement were not clear...penalty would likely be a reprimand.”)

Universities until a few decades ago rarely dealt with sexual misconduct cases. That changed after a 1977 lawsuit by five Yale students, arguing that because Yale lacked any avenue to deal with sexual harassment, it had denied them equal access to education—violating Title IX, the anti-discrimination law that until then applied primarily to sports. The court agreed with the Title IX argument (though it dismissed the individual allegations). By the time the case was decided, Yale had established a sexual harassment grievance board; other universities followed.

More recently, Yale resolved a 2011 Title IX complaint alleging that it had tolerated a campus environment hostile to women. One example: fraternity members had walked across Old Campus chanting, “No means yes, yes means anal.” Also in 2011, the US Department of Education urged universities nationwide—in the so-called “Dear Colleague” letter—to step up enforcement. The letter suggested, among other measures, that universities judge cases based on a “preponderance of evidence,” meaning the misconduct is more likely than not to have occurred, rather than the more rigorous “clear and convincing evidence” standard.

Some, like Yale Law School professor Jed Rubenfeld, argue that universities aren’t competent to handle sexual misconduct cases at all. As he wrote in a November 2014 New York Times opinion piece, “colleges are conducting trials, often presided over by professors and administrators who know little about law or criminal investigation.”

In the interest of better understanding the issues, the Yale Alumni Magazine convened a panel of experts and asked me to moderate. The panelists’ full bios are on the following pages. They are: former federal judge Nancy Gertner ’70MA, ’71JD; Meredith Raimondo, Title IX coordinator at Oberlin; Emma Goldberg ’16, coauthor of the April 2015 student report; and Alexandra Brodsky ’12, ’16JD, activist and Yale law student. (Jed Rubenfeld was unfortunately unable to attend.) We invited Yale to participate, but university officials declined. The discussion does not necessarily represent the university’s views.

What follows is an excerpt from the conversation, edited for length and clarity.