The female Yale student whose allegations last year led to the suspension of former Delta Kappa Epsilon President Luke Persichetti says Persichetti forced her into having sex without a condom in his bedroom, even as she said “no” multiple times. In recent interviews with the News and Business Insider, she described the assault as “rape.”
But while Yale found that Persichetti had committed sexual assault, the University did not characterize his actions as rape. Instead, the University-Wide Committee on Sexual Misconduct suspended Persichetti for three semesters for “penetration without consent.”
So what does “penetration without consent” really mean? And how does it differ from rape?
Since the UWC was established in 2011, Yale has never ruled that a student or another community member committed rape, per se. Instead, the University has used a range of broader terminology over the years to characterize the most severe instances of sexual assault committed on campus — first “nonconsensual sex,” then “sexual intercourse without her consent” and now “penetration without consent.”
The term “rape” usually implies the use of force, according to four experts on campus sexual assault interviewed by the News. Yale’s use of “penetration without consent” and other broad terms may indicate the University has a low bar for what constitutes sexual assault, the experts said.
“It reflects the changing landscape in this area,” said Lara Stemple, a legal expert from UCLA School of Law. “‘Penetration without consent’ is a term that may be used to signal that many colleges and universities now require affirmative consent to be given before sexual contact.”
Findings of “penetration without consent” have yielded a wide range of punishments, according to Yale’s semi-annual Title IX reports. Last year, Persichetti received a three-semester suspension for “penetration without consent,” while another student was suspended for two terms for the same offense, according to the reports.
Another student found guilty of “penetration without consent” was Jack Montague, the former Yale men’s basketball captain who was expelled in 2016.
In its semi-annual reports, Yale defines sexual assault as “any kind of nonconsensual sexual contact, including rape, groping, sexual penetration (which is the insertion of a penis, finger or object into another person’s vagina or anus), or any other nonconsensual sexual touching.”
University Title IX Coordinator Stephanie Spangler said the terminology used in the reports has evolved over time, largely in response to community input that the terminology should describe rather than label behaviors.
“Yale’s definition of sexual assault is intentionally broad and inclusive,” Spangler said. “Additionally, the terms used in the definition, which include both labels and descriptions, are not mutually exclusive.
Stemple added that those in favor of affirmative consent requirements may view the term “penetration without consent” as more protective than “rape,” a term that for years has been continually redefined in various legal codes and campus policies.
Connecticut law holds that sexual assault requires proof of force, but does not mention consent, according to Joseph Fischel, a professor who teaches Theory and Politics of Sexual Consent. Although sexual contact without consent can be prosecuted as a misdemeanor, he said, it hardly ever is.
The UWC’s establishment in 2011 came just months after DKE initiates chanted “no means yes, yes means anal” in front of the Women’s Center.
Hailey Fuchs | hailey.fuchs@yale.edu