Report raises questions on "nonconsensual sex"

Is "nonconsensual sex" the same thing as rape? And is Yale letting rapists off with a written reprimand? That's the gist of a post at Jezebel yesterday reacting to the university's fourth semiannual report on sexual misconduct complaints, which was released on Wednesday. University officials say that's not the case.

The report includes generic descriptions of every complaint of sexual misconduct brought to any of various venues at Yale (the university's Title IX coordinators, the University-Wide Commitee on Sexual Misconduct, the Yale Police, and the human resources department) and how those complaints were resolved.

Jezebel pointed to six cases described as "nonconsensual sex" (or, in two cases, "certain nonconsensual acts during otherwise consensual sexual activity") and pointed out that the harshest punishment administered was a two-semester suspension in one case. In three cases, students were given written reprimands, in another, a student was put on probation, and in another the complainant declined to cooperate with the investigation.

To Alexandra Brodsky ’12, ’16JD, one of the 16 students and alumni whose complaints led to a Title IX investigation against the university, these descriptions sound like "trivializ[ing] violence" and "administrative tolerance for rape," as she wrote on her Twitter feed. The Jezebel article has been shared widely on social media, and its take was picked up by the Huffington Post ("Yale Fails to Expel Students Guilty of Sexual Assault"), Ms. Magazine ("Yale Fails Again to handle Sexual Assualt on Campus"), and other news outlets.

In an official statement released this afternoon, the university suggests that not all cases that can be described as "nonconsensual sex" meet the definition of rape:

 

Yale uses the term “non-consensual sex” to describe a range of behaviors that fall within the University’s broad definition of sexual misconduct. This definition requires clear and unambiguous consent to each activity at every stage of a sexual encounter. 

The statement continues:

Moreover, Yale applies a “preponderance of the evidence” standard (a lighter burden of proof than the “beyond a reasonable doubt” criminal standard) to determine misconduct. In this way Yale is able to—and does—impose discipline for improper conduct that would not meet a criminal standard. [Read the whole statement here.]

Deputy provost Stephanie Spangler, who is Yale's Title IX coordinator and the author of the semiannual reports, won't discuss details about cases or even hypothetical examples, but she says that all complaints that could be grounds for criminal prosecution are shared with the Yale Police. "We deal with rape as rigorously and aggressively as we can."

The official statement adds that "the descriptions in the semiannual reports cannot fully capture the diversity and complexity of the circumstances associated with the complaints, or the factors that determined the outcomes and sanctions. Nonetheless, the range of penalties described in these reports reflects our readiness to impose harsh sanctions when the findings warrant them." Past reports have described a case where a student was expelled over a case of intimate-partner violence, another where a faculty member was relieved of teaching duties over inapproriate remarks, and another where a professor was suspended for a year for having a consensual affair with a student.

Spangler believes that Yale is the only university that issues such comprehensive reports on sexual misconduct, and she acknowledges that the scant details and generic descriptions can sometimes lead to "distressed and confused responses." But she says "we're trying to do this right" and that the goal of the reports is to "inform the community about the processes available, to show that people do use them, and to give a general sense of what happens."