In an effort to clarify confusion regarding the University’s disciplinary procedures on sexual misconduct, administrators released three hypothetical cases involving potential complaints of nonconsensual sex that would result in expulsion in a campus-wide email Monday night.

The scenarios are a response to criticism surrounding Yale’s fourth semi-annual report of sexual misconduct complaints, which detailed all cases of sexual harassment and assault brought to University officials in the first half of the year. Students and alumni have raised concerns that Yale’s punishments for sexual assault are not severe enough and that language about sexual misconduct used in the report is ambiguous.

Of four cases updated in the most recent sexual misconduct report after the UWC found evidence to confirm undergraduate allegations or reports of nonconsensual sex, one resulted in a two-semester suspension and none led to expulsion.

“We’re thinking these scenarios are really good to educate the community,” said Michael Della Rocca, chair of the UWC. “The UWC has not seen the full range of cases that you see depicted [in the scenarios]. If we saw cases like that, we would expel.”

Out of the eight hypothetical scenarios released Monday, three cases that resulted in expulsion involved forced sex. One case involving a student who said “not so fast; I’m not sure” midway through a previously consensual sexual encounter resulted in a punishment that would “likely range from multi-semester suspension to expulsion.”

One scenario that involved ambiguous consent resulted in a punishment falling between probation and suspension while another case of ambiguous consent resulted in a “reprimand.” Two cases depicted examples of consensual sex.

Deputy Provost Stephanie Spangler said some critics of the report “jumped to conclusions” about the circumstances surrounding the cases of sexual misconduct included in the report.

“People were equating our term ‘nonconsensual sex,’ which includes a range of behaviors, with [rape],” she said.

Assistant Dean of Student Affairs Melanie Boyd ’90 said nonconsensual sex by Yale’s definition is broader than rape and includes any instance of sex — oral, vaginal or anal — that does not include positive, unambiguous, voluntary agreement at each point during the sexual encounter.

In the report, the four cases involving allegations of nonconsensual sex ended in confirmed instances of nonconsensual sexual conduct, nonconsensual acts during otherwise consensual sexual activity and one case with no details of the complaint or finding specified.

Although the three hypothetical scenarios involving rape all ended in expulsion, Boyd said issuing a statement that Yale’s preferred punishment for rape is expulsion would have been a “shallow and problematic” solution to the issue.

Some complainants may not prefer expulsion in the case of rape, and creating a hierarchy between rape and forms of sexual violation that are not rape would have been too simple, she said.

Although the UWC does not follow predetermined standards of punishment for various cases, Spangler, Della Rocca and Boyd said they unanimously agreed upon sanctions for each case.

Administrators said the UWC’s disciplinary standards were not re-evaluated when the scenarios were created and have remained consistent since the University introduced its most recent definition of consent in 2011.

“In each case where a violation of policy is found, the most important factor determining the disciplinary action taken is the nature of the behavior in question,” Spangler said. “The UWC panel is also made aware of relevant precedents in other cases and any prior disciplinary record of the respondent.”

The complainants are also asked to indicate their desired outcome, Spangler said. Administrators said the recently released scenarios will inform the training for members of the UWC.

Emma Goldberg ’16, a founding member of Students Against Sexual Violence at Yale — a group created in August that has lobbied administrators to reform Yale’s sexual misconduct policies — said the scenarios focused too heavily on cases that ended in expulsion because zero cases in the last report ended in expulsion.

“The range of scenarios deals almost entirely here with cases that end in expulsion and only one ends in a written reprimand and all the [reported cases] we took issue with ended with reprimand,” Goldberg said.

SASVY member Hannah Slater ’13 SPH ’14 said administrators have not gone far enough in providing clarification on several topics, including the process of determining disciplinary consequences.

SASVY is scheduled to meet with administrators next week.

  • cooplifemember

    All of the student names in these scenarios are gender ambivalent; clearly by design.

    What do you think the reasoning is here?

    • Nancy Morris

      From the actual text explaining the examples:

      “The names chosen for the scenarios are gender neutral to reflect the fact that sexual misconduct occurs in all gender configurations.”

      See: http://smr.yale.edu/node/16/attachment

  • yale12

    Please post the actual text. Your summaries are confusing.

    • Nancy Morris

      O, please, there is a link to actual text in the earlier Cross Campus post on the same topic:

      http://smr.yale.edu/node/16/attachment

      This is yet another example of how the repetitive, tendentious, sloppy reporting by the YDN on this topic has served to confuse the minds of those among its readership who need to be carefully spoon fed every dollop of data.

  • terryhughes

    “In an effort to clarify confusion regarding the University’s disciplinary procedures on sexual misconduct…”

    That’s cute. What the YDN does not say is that the bulk of that “confusion” resulted from insinuations by SASVY and the YDN itself. When Deputy Provost Stephanie Spangler diplomatically said that “some critics” of the report “jumped to conclusions” and that “people were equating our term ‘nonconsensual sex,’ which includes a range of behaviors, with [rape],” the “some critics” and “people” to whom she referred were YDN, SASVY and others who had been seriously misinformed by them.

  • Nancy Morris

    Among the many deficiencies in this YDN article is its failure to relate its subject to the earlier YDN editorial calling for draconian penalties for sexually related infractions. Comments to this article make clear that some of its readers have not read the earlier CC post. I am therefore copying below a comment I earlier left on the Cross Campus blog post on the same topic:

    Ah, an actual example from the new list:

    “Morgan and Kai are friends who begin dancing and kissing at a party. They are both drunk, although not to the point of incapacitation. Together they decide to go to Kai’s room. They undress each other and begin touching each other. Morgan moves as if to engage in oral sex and looks up at Kai questioningly. Kai nods in agreement and Morgan proceeds. Subsequently, without pausing to check for further agreement, Kai begins to perform oral sex on Morgan. Morgan lies still for a few minutes, then moves away, saying it is late and they should sleep.”

    The UWC penalty would likely be a reprimand. But the UWC example explanation seems to say that this fact pattern constitutes an example of “nonconsensual sex” under the Yale definition, and the SASVYOIDS and the YDN editorialists insist the “preferred punishment for nonconsensual sex at Yale must be expulsion.” Even assuming that this fact pattern does not constitute “nonconsensual sex” under the Yale definition (although it’s hard to see that could be the case), the SASVYOIDS and the YDN editorialists insist the preferred sanction must be, at minimum, suspension” and that “”before returning to campus, violators must receive counseling.” Seriously. Yes, that’s what they want. I’m not making it up.

    The reader should carefully review the fact pattern presented in the example and determine for herself whether the SASVYOIDS and the YDN editorialists are really as completely unhinged as they appear to be in such a case.

    • schmydn

      “Draconian penalties for sexually related infractions” = appropriate penalties for rape beyond a reasonable doubt.

      • terryhughes

        To my knowledge, no mention of a “reasonable doubt” standard of proof has ever been mentioned by SASVY or the YDN. Indeed, one aspect of this topic that seems especially controversial to those parties is the typical “X-said-Y-denied-so-nothing-is-clear” nature of so many of these cases. for that matter, it is the need to meet the “reasonable doubt” standard that bottoms many of the police and state prosecutorial decisions not to prosecute and, in many cases, not deeply investigate, a pattern that seems to send SASVY up the wall. Am I mistaken? Have SASVY or the responsible YDN editorialists embraced a “reasonable doubt” standard? Where?

        As for “appropriate penalties,” I think Nancy does a pretty good job of demonstrating that the SASVY/YDN call for expulsions is essentially all cases of “nonconsensual sex” is draconian and lacks nuance. That’s especially true in the case outlined in the example resulting in a letter of reprimand.

        Have you actually been following the topic in detail? You comment is rather odd?

        • MiddleageLiberal

          If you’re suggesting SASVY or the YDN should use “beyond a reasonable doubt” standard to judge guilt, that’s not bloody likely. Yale, like many universities, has switched to the less stringent “preponderance of evidence” standard of civil lawsuits. This standard of judgment was urged upon universities in 2011 in the (in)famous “Dear Colleague” letter from the Dept. of Education’s Office of Civil Rights.

          • terryhughes

            No, I am just responding to “schnydm’s” reply to Nancy’s comment. I completely agree that “reasonable doubt” is not the applicable standard within the University system. My point is that SASVY and the YDN appear to want to weaken the standard still further, exactly the opposite of what schnydm seems to be saying.

            On the other hand, I may have misunderstood schnydm’s point, which could also be construed to mean that the ONLY just system uses a “reasonable doubt” standard. I can’t figure out the “draconian = appropriate” equation in that case, though.

            The “Dear Colleague” letter is indeed infamous, and a canonical example of Obama administration overreach and misinterpretation. It’s not the worst example, which was perhaps the attempt to literally read the two religion clauses out of the First Amendment in the Lutheran school employee case that had every Justice dropping a jaw.

            Cheers. Btw, I liked your earlier comment.

      • 13

        Do you know what draconian means?

    • Archy

      So Morgan has non-verbally asked for consent, gets the nod, so consent is made. Kai takes a chance and enters the 69? and Morgan lies still…do they mean Morgan is still performing oral or that Morgan has suddenly gone limp in the body (maybe from fear?) then Morgan either builds courage to move, or was just bored n tired of the sexual activity?

      How on Earth is that punishable? There’s no actual indication of rape or sexual abuse, there are sex acts that aren’t defined appropriately. What was Morgans body language, was this person afraid? Did they continue their sex act too?

      Whilst I agree enthusiastic consent is great, that hypothetical is impossible to answer and ridiculous to punish based on such shoddy evidence.

      • Nancy Morris

        I don’t disagree. If anything even the letter or reprimand may be a little excessive. But no great injustice. Look, it’s a letter.

        I think it’s important to keep in mind that in these examples the facts – including the presence or not of “consent” – are simply decreed for purposes of analysis. That’s OK, but it limits the usefulness of the example. In the real world facts have to be determined from evidence, not decreed. In these cases the available evidence often amounts to (1) very general items (perhaps third parties saw the sexual partners stroll off towards the accused’s room and give conflicting, vague and unreliable estimates of how much alcohol they had each likely consumed) plus (2) conflicting accounts of the encounter by the sexual partners, whose memories are often clouded by booze and/or drugs and whose testimony is often (even generally) self-serving. Yale’s requirement that the consent be “clear” is well intentioned, and helps in some respects, but it also tends to focus the proceedings on the testimony of the sexual partners while creating a serious incentive for the accused to testify that the accuser did give clear consent and for the accuser to deny any consent was given at all.

        No judge either within the University of the state system wants to take decisive action based on such a poverty of evidence. That’s a taproot of the problems in this area, and there is no denying that serious sexual infractions can evade justice in the current systems. But there is no simple fix and the problem is NOT that Yale officials are not interested or biased or any of the many other accusations and insinuations that people like SASVY and the YDN editorialists have leveled.

        There is no simple fix. What SASVY and the YDN editorialists advocate are simplistic fixes, which would just make matters much worse (in the fashion of the Duke lacrosse fiasco). That definitely won’t work. And SASVY’s tacking weasel words like “preferred” onto their demands for essentially mindless punishment does not advance the situation, but is a specious rhetorical trick. SASVY wants their draconian demands to be “preferred” but not be applied in exactly the circumstances in which application would cause (or worse, has caused) embarrassment to SASVY. SASVY could actually attempt to DEFINE the circumstances in which their “preference” should not be applied. Perhaps SASVY could try composing some stipulated fact patterns for the public to shoot at. That experience might give SASVY a healthy, small dose of reality.

        There is no way out of having to continue to THINK about these things.

  • MiddleageLiberal

    It seems that SASVY and the folks like the YDN board who joined in the editorial the other day often ignore problems of miscommunication in cases which evidently sometimes lead to disputed claims complaints of sexual assault. There really is no dissent from the idea that an acquaintance perpetrator who forces intercourse, by intimidation or threat, in a date rape scenario or pushes through to intercourse when his/her partner is clearly incapacitated (not just influenced) by alcohol should be expelled and, if the victim wishes, prosecuted.

    It is in the grey areas, when willingness or consent is ambiguous that present difficulties. Advocates like SASVY seem to want to impose a subjective standard, i.e. if the victim or survivor says there was no consent, there was in fact no consent no matter how ambiguous his/her statements were to her partner at the time the events took place, and strong disciplinary action, suspension at least, should follow. The scenarios put out by the university and the sanctions the committee members unanimously agreed should follow from them are useful guidelines, though certainly imperfect. Even if one doesn’t agree with the sanctions, or lack thereof, from a particular scenario, it is certainly worth a student’s while to read them and be aware of them.

    • sy

      Another problem is proof of the events. The facts are disputed and never stipulated as set forth in the scenarios. There is no other witness because people try to be alone. It’s OK to apply benevolent sexism and assume that a male who takes a female to his room is responsible for her not leaving there angry enough to file a complaint. That’s still sexism and not proof, so the penalty has to be something like probation without repeat complaints. The scenarios, however, show three repeating enablers of the worst sexual complaints: (1) a drunk female, (2) a very drunk male whose behavior is not merely uninhibited, and/or (3) a female going to a bedroom [not her suite and her roommates around] with a male whom she does not know well–not yet a boyfriend. Take away any two of those scenario facts, and almost none of this happens. Take away all three, and the UWC is almost out of business. If it is unfair to ask women to help avoid nonconsensual bad sex and “date” rape, they still could do that out of benevolence, or in Leah Libresco ’11’s famous phrase, to “protect men’s virtue.” I wonder what she would think of this?

      • kal

        The names are gender neutral, so there is no “drunk female” or “very drunk male” in these scenarios.

  • actanonverba8

    Is there a point at which female students are expected to behave as adults and state clearly that they do not want to have any more sexual activity? Using some androgynous names in the scenarios isn´t fooling anyone. This is about ideologues and power over, and shaming of, men. What a misandric environment campuses are. Do any of these people have brothers or nephews, or sons?

  • Archy

    soo….if my gf and I kiss, we both undress, have sex without saying a single word…that is considered non-consenting sex?!?! Regardless of us both acting with 100% agency, both wanting to do it but not using a single word?

    • Nancy Morris

      No! Consent under the Yale rules does NOT have to be verbal. What you describe is clearly consensual sex.

      On the other hand, just imagine what it would be like for the University official involved if your gf showed up in the official’s office the next morning in tears, saying you had ignored her non-verbal pleas not to go forward the night before. She just wanted some naked cuddling.

      See the problem the University faces?

      • Archy

        I’m not entirely convinced it’s a great idea though for the university to play detective. I’d much rather the police do it, and then the uni can kick em out if they are proven guilty. It’s a tough sell to kick people out who haven’t been convicted of a crime, maybe a better option would be some form of AVO so they don’t go near the accuser if there is no police conviction. It’s a very tricky situation!

        • Nancy Morris

          The New Haven police (and state prosecutors) only get involved where there might be a CRIME. Yale standards do not define CRIMES, they are standards of Yale community (student) behavior. Despite the willful and apparently mischievous effort by SASVY and the YDN editorialists to confuse the matter, the overwhelming majority of violations of Yale’s “consensual sex” standards are NOT criminal and CERTAINLY NOT equivalent to anyone’s definition of “rape” or “criminal sexual assault” or ANY crime.

          Whether a particular person is interested in a given sexual event will properly vary with the event. For example, the New Haven police and Connecticut prosecutors are just not interested in such matters, and rightly so. (And further down the road, prosecutors rapidly lose interest in cases in which there is little evidence to support prosecution of a crime.) In my opinion, there is considerable circumstantial evidence that SASVY and the YDN editorialists may be motivated more by ideology, craving for power over and shaming of men and general misandric motives, as suggested by another commenter, than any bona fide quest for justice and fairness. Being filled with ideology, cravings for power over and shaming of men and general misandry is not in itself necessarily WRONG, but neither is it what SASVY and the YDN editorialists admit to. So what? Welcome to the real world where people do not frankly admit their motivations, which are often not very nice, and often lie about them. After mulling that over, perhaps you will want to tour a sausage factory.

          Yale and many universities set community standards regarding sexual matters that can be quite different than those of state law. For example, a religious college will almost always have more conservative rules than Yale or a public college. There’s nothing wrong wilth that. Similarly, academic cheating and plagiarism are not generally CRIMES (so don’t bother calling the police), but they certainly violate Yale community standards that are entirely appropriate for the University to put in place. Look, the state criminal standards are just the lowest, most basic requirements applicable to everyone. Yale is not about “everyone.” The whole point of the place is to do better than that across the board.

          You know, like Lake Woebegone.

          • Archy

            That is scary :S

  • thetruthhurts