The scourge of sexual assaults on college campuses rightly fills us with rage and indignation. But crimes that produce such visceral emotions need to be adjudicated in an impartial and dispassionate manner. A student found responsible for sexual assault is almost always expelled from school and barred from campus. His permanent record will often note that he was found guilty of sexual assault, thereby limiting his educational, employment, and housing opportunities. Such a life-shattering event warrants high standards of due process protections for the accused. Our courts provide such protections. Campus tribunals, which are conducted by amateurs in emotionally charged atmospheres, do not. Unfortunately, President Obama is using his authority under Title IX to vastly expand the role of campus tribunals in adjudicating cases of sexual assault.
In April 2011, the Department of Education’s Office for Civil Rights sent out a “Dear Colleague Letter” that outlined steps that colleges must take to respond to sexual assault on campus. This letter called for sensible reforms such as increased training for victims’ advocates, more partnerships with rape-crisis centers, and bystander awareness to teach men to intervene if they see a woman who is about to be victimized. But the letter also ordered colleges and universities to investigate and adjudicate students’ reports of sexual assault, even if the alleged victim decides not to have a medical exam or report the incident to the police. Colleges that do not take the steps recommended by the Office for Civil Rights will lose federal funding and be referred to the U.S. Department of Justice for litigation.
In a follow-up communication, the Department of Justice’s May 9, 2013 letter to the President of the University of Montana, the Obama administration admonishes colleges and universities to dramatically expand their definitions of what constitutes sexual harassment and assault and to lower standards of evidence needed to find students responsible for sexual assault. Not Alone, a White House report released on April 29, 2014, criticizes our “adversarial, evidence-gathering criminal justice model” and commends schools that appoint a single investigator to “interview the complainant and alleged perpetrator, gather any physical evidence, interview available witnesses—and then . . . render a finding.”
A single-investigator model spares complainants from cross-examination, but it also places students at grave risk of not being able to defend themselves against false accusations. For example, Robert Shibley, Senior Vice President of the Foundation for Individual Rights in Education, estimates that he gets two calls a week from students who claim that they were falsely accused of sexual assault in campus disciplinary proceedings.
Redefining Sexual Assault
Not Alone begins with the statement, “One in five women is sexually assaulted in college.” This one-in-five statistic came from a single web-based survey of two universities that was conducted in 2006 and posted on the Justice Department’s website in 2007. The survey was anonymous and took 15 minutes to complete. A total of 5,446 undergraduate women between the ages of 18 and 25 filled out the survey, a response rate that researchers admitted is quite low.
The researchers did not get their one-in-five statistic by asking women directly if they had been victims of rape or sexual assault. Instead, researchers asked women about their experiences and then decided if these women had been victims of rape or sexual assault. Two-thirds of the women whom the researchers cite as victims of drug- or alcohol-induced rape and 37 percent of those counted as forcibly raped do not consider themselves to have been victims of crimes. The website advises readers that the survey is not a publication of the Department of Justice and warns readers that reported sexual assault varies widely depending upon survey instruments.
Concerned that there is an unreported sexual assault epidemic on college campuses, the Office for Civil Rights is pressuring schools to inflate their numbers of reported and adjudicated sexual assaults. This is creating an Orwellian world in which a low number of assaults on campus is an occasion not for praise but for censure. In response, colleges are devising hearing procedures to elicit as many assault charges as possible.
In 2011, Yale University reported thirteen allegations of sexual assault. All thirteen were filed under an informal complaint process in which the accused student does not have the right to cross-examine his accuser or present evidence of his innocence. None of the complainants ever went to the police or ever received any sort of medical exam. Under this procedure, a student can press charges against another student for behaving in a way that causes her to worry. Yale’s guidelines make the extraordinary claim that the goal of the disciplinary process is “to achieve a resolution that is desired by the complainant.” If you accept Yale University’s data, you are ten times more likely to be sexually assaulted on the Yale University campus than in the city of New Haven, one of America’s most violent cities.
This is not to say that our campuses are free from the scourge of criminal sexual assault. Every year, there are horrific crimes against female students, often perpetrated by a small number of men who prey upon first-year women who are under the influence of alcohol. United Educators, an insurance company owned by 1,160 member colleges and universities, reported that between 2005 and 2010, 63 percent of complainants filing claims of sexual assault are first-year students, and their assaults typically occur in September. In 92 percent of these claims, the complainant was under the influence of alcohol. More than 60 percent of these claims involved women who were so drunk that they had no memory of the assault. Eighty-one percent of these assaults occurred in student dormitories. Research by forensic consultant David Lisak indicates that three percent of college men account for over 90 percent of college rapes.
The reports coming out of the Obama administration contain some sensible advice to remedy this situation, but there are also stunning omissions. The reports barely mention alcohol and make no mention at all of how dormitory living arrangements might contribute to the problem. Instead, these reports encourage colleges and universities to develop definitions of sexual harassment and sexual assault so broad that they turn social gaffes into violent offenses.
In a May 9, 2013 letter to the president of the University of Montana, the Office for Civil Rights defined “sexual harassment” as “unwelcome conduct of a sexual nature,” and it jettisoned the requirement that actions or speech had to be “offensive” according to reasonable standards and objective evidence in order to be considered harassment. According to Vassar College, “sexual violence may include, but is not limited to, treating the victim and other people as objects via actions and remarks, using sexual names, insisting on dressing or not dressing in a certain ways, touching in ways that make a person uncomfortable.”
Columbia University defines assault as “any intentional sexual touching, however slight, with any object, without a person’s consent.” The sexual assault policies at both Columbia and Yale define consent as a prior “unambiguous agreement” to each “specific touching” whether or not consented to in the past. At Columbia, Duke, and Stanford, sex after any alcohol use can be considered rape.
By defining “assault” so broadly that it includes activities like brushing up against someone in an unwelcome way, attempting to kiss someone, or behaving in a way that worries a classmate, colleges and universities, under pressure from the Obama administration, are trivializing the horrific crimes that some women on college campuses face. They are turning nearly every male student on every college campus into an offender, and they are turning failed romances into “assaults.” Peter Wood, the president of the National Association of Scholars, writes, “A rule that potentially turns every word and every gesture into grist for a . . . complaint is really a writ of arbitrary power for campus administrators” who will get to selectively prosecute disfavored groups.
Criminal defense lawyer Matthew Kaiser says, “When my daughter leaves for college, I want her to be protected from sexual assault.” But Kaiser also worries about his son’s being accused, for frivolous reasons, of sexual assault. “Based on the cases I’ve seen,” he said, “I am more concerned about my son than my daughter.”
Under this new regime of sexual policing, college students are being stigmatized as rapists and expelled from college even in cases where there is compelling exculpatory evidence. Vassar College student Xialou “Peter” Yu, a Chinese national with a 3.8 GPA, was expelled from Vassar in February 2013 for having sex with Mary Claire Walker, a female student who is one year Peter’s senior and whose father is a professor at Vassar. On February 18, 2012, Yu and Walker, who were on the crew team together, had some drinks at a party, started making out at a campus dance venue, and then went to Yu’s dorm room.
According to Yu’s legal complaint, upon entering the dorm room, Yu informed Walker that he was a virgin, and she responded, “It’s okay, I know what to do.” Walker then began to undress herself and started undressing Yu. The next day, Walker sent Yu an email assuring him that she had had a “wonderful time” and that he had done “nothing wrong.” She wrote that she was sorry that she had “led him on” when she wasn’t ready for a relationship. A month later, Walker contacted Yu again to apologize for the incident and express hope that it would not affect their friendship. There were several more friendly exchanges over the next seven months. At one point, Walker invited Yu to dinner at her place. Vassar College has acknowledged that these email exchanges took place.
In February 2013, on the last day that she could press charges against Yu, Walker filed a complaint of non-consensual sex against Yu. By filing on the deadline, Walker ensured that Yu could not file a counter-claim. Sixteen days later, a panel of three Vassar faculty members (Walker’s father’s colleagues) found Yu culpable and immediately expelled him from Vassar. Vassar denied Yu’s request to call his roommate and Walker’s roommates as witnesses. Walker’s friendly messages to Yu were barred from the hearing as irrelevant. Yu was not allowed an attorney. After his expulsion, Yu was rejected by ten colleges.
Peter Yu’s ordeal at the hands of Vassar’s “Interpersonal Violence Panel” has become routine on college campuses. In 2010, Caleb Warner was expelled from the University of North Dakota on the basis of a rape charge even though the police had issued a warrant for his accuser’s arrest for filing a false report about Caleb. In 2012, Ohio’s Xavier University expelled basketball player Dez Wells from college based on a rape charge that the county prosecutor Joseph Deters publicly denounced as false. “There were students on that conduct board, looking at rape kits,” Deter said. “They’d say, ‘I don’t know what I am doing.’”
College rape tribunals not only run the risk of wrongly stigmatizing innocent students as sex offenders, but they also betray victims of sexual assault by not locking up dangerous predators. When a college correctly identifies a violent offender, the maximum sentence it can deliver is expulsion, leaving the predator free to strike again in a different venue. College disciplinary boards have an abysmal record of handling sexual assault cases because they do not have the expertise to investigate and adjudicate violent felonies. The Obama administration should abandon its plans to construct a shadow justice system on college campuses. Instead, the administration should insist that victims seek justice through courts and law enforcement agencies. These institutions have the skills to make determinations of guilt and innocence in a way that respects the civil liberties of both the accused and the accuser, and they alone have the power to incarcerate dangerous criminals.