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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 In this situation, “while there was initial consent, that consent was withdrawn,” and thus, the “penalty would be expulsion.”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.”

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.

The conversation

Joanne Lipman (moderator): Is there more sexual misconduct now than there used to be? There’s an argument that, particularly since 1984 when the drinking age changed from 18 to 21, there’s been more binge drinking and as a result more sexual misconduct on campuses. Others argue that it’s simply that the definitions have changed or the awareness has increased.

Nancy Gertner: It’s really hard to say. There’s no question that we are way more aware of it now. What women today may appropriately experience as sexual misconduct, we did not. We were the blaming-the-victim generation. We thought it was our fault. It may well be the very same conduct that we’re talking about then as now, but women are more empowered to name it than they were before. I also think that you can’t deny the impact of alcohol and drugs on campus. I’m not sure that it’s more, but certainly the alcohol fueled very different interactions between men and women.

Meredith Raimondo: The end of in loco parentis on most college campuses and the rise of coeducation are clearly part of the story. I don’t see that as an argument against coeducation. But in many cases our institutions, which were not accessible to women but have become accessible to women, and the women’s institutions that have now invited men in as an economic survival strategy, did that without really thinking about, I think, what would be needed to equip people with the skills to navigate those environments.

Then you add into the mix alcohol—that’s certainly the number-one drug that’s a problem. We don’t have much of a culture to help people develop healthy and responsible relationships to alcohol. We have a culture that encourages the use of alcohol to facilitate sexual interaction for all ages of people.

JL: Alexandra and Emma, since you’ve been on campus, this has been a number-one topic of conversation on campuses nationwide. Has that changed the behavior of students?

Alexandra Brodsky: I graduated from the college in 2012 and then took a year off and then came back to law school. While I certainly don’t pretend that I understand the undergrad party scene at this point, it’s been remarkable for me to see the changes in the conversation. When I was a senior there was an editorial published in the YDN [Yale Daily News] saying that if we had a rape culture, students would talk about their favorite kind of rape at breakfast. When I was a junior the YDN published its editorial saying that the reason that DKE [the fraternity Delta Kappa Epsilon] had gone around chanting, “No means yes, yes means anal” was that they knew that the Women’s Center was really easy to get riled up and they thought that would be fun.

Now that I’ve returned to campus it’s been really wonderful to see undergrads who no longer feel like they have to prove that this is a problem. They no longer feel like they have to argue that it is an issue worthy of debate and care.

Emma Goldberg: I think certainly there’s been an increase in the number of instances of sexual misconduct reported on campuses. In explaining that, you have to look at this tremendous shift in the number of students who are aware of their rights under Title IX. Because of this tidal wave of student activism, students are increasingly aware that they have the right to take action when they experience any instance of sexual misconduct.

JL: Some say the priority of a college as an institution is to protect itself first and foremost—so how is it appropriate for a university to even be adjudicating cases like this, when the outcome could have a negative effect on the entire institution?

AB: Not taking action can also have a negative effect on the entire institution. We have to remind ourselves why schools are involved in this anyway. This is probably the most common question that Know Your IX [the national nonprofit she codirects] gets: isn’t this criminal? Shouldn’t we just hand this over to the cops?

Title IX, which is the 1972 Education Amendment, doesn’t say anything about violence. What it says is that all students should be able to learn and have equal access to educational opportunities regardless of gender. It’s through pioneering feminists’ work—that came from Yale—that we got the Title IX that we have today, which encompasses sexual harassment, including sexual violence.

For years, the incentive for schools was very clear—to hush it all up and avoid any public discussion, avoid any headlines. I think that now schools are starting to realize that they might make headlines either way. If schools don’t address these harms, students who are disproportionally—though not always—women are going to face unconscionable barriers to their education. It is really hard to learn when you have to share a dorm with your abusive ex. It is really hard to learn when your professor is harassing you. It is really hard to learn when you have to share a library with someone who raped you.

MR: There is no other major crime that, if a student committed it, we would say, maybe the institution shouldn’t make a decision about that student continuing to be part of the student community. I was reading this morning about students expelled from Wesleyan for dealing drugs. It’s not controversial for the institution to separate from those students.

JL: In the case of a student dealing drugs, it’s the criminal justice system that deals with the drug felony and the school that expels them, as opposed to the school being the one who investigates and takes action.

MR: Right, but to expel any student you gather information and decide if a policy has been violated. It’s very clear that schools should not be engaged in the criminal process of investigating complaints. We don’t have forensic capacity. But we have other kinds of investigation capacities that are relevant to the civil rights question around access to education.

NG: Then, too, the standards are different. Sexual harassment is not a crime. It is a civil action. And it is covered by university policy. One can argue that, in fact, any kind of more-subtle issues, any issues that have to do with sexual harassment, are more appropriately dealt with in the university than they are in the criminal justice system. It’s not just that the procedures are different. It is that the conduct that is sought to be regulated is arguably and appropriately broader in the university setting than in the criminal setting.

JL: That brings us to the 2011 “Dear Colleague” letter sent by the Department of Education, [which] recommends a “preponderance” of evidence as opposed to “clear and convincing” evidence. Preponderance of evidence is a lesser standard. There is an argument that says that this is not fair to the accused, who is generally a man.

NG: I was one of the 28 Harvard faculty signatories on the letter that opposed the Harvard University policy [for dealing with complaints of sexual misconduct]. What was troubling to me was not the [preponderance] standard in and of itself. It was that standard accompanied by considerably fewer protections.

In civil court, civil rights cases and sexual harassment cases are all evaluated by a “fair preponderance” standard. But those proceedings take place after discovery—people have exchanged information; after lawyers; after hearings presided over by a judge. What was troubling at Harvard—I don’t know about anywhere else—was that there is a preponderance standard unaccompanied by any of those proceedings: no counselors for both sides, no hearing—no setting in which the accuser had to say what was going on and could be addressed by lawyers, even if not by the man accused.

AB: I want to make sure that we don’t conflate Harvard’s policy with the Dear Colleague letter. In many ways Harvard made changes that were not required. Unfortunately, theirs was one of the big, high-profile policies to come out afterward—so there’s a popular sense that Harvard’s policy was what the Dear Colleague letter required.

Before the Dear Colleague letter, most schools did not specify any kind of standard for their student disciplinary hearings. But those that did used preponderance. So I bristle a little bit when I hear that libertarian men’s groups are upset about the preponderance standard for sexual assault cases—when that’s the standard that has been used when people have been kicked out of school for punching their roommate in the face, for cheating on an exam, for selling drugs even when there isn’t a criminal charge. We have this awful history in our criminal courts and in our civil courts and in student discipline of baking into our systems a skepticism of rape victims. I think we want to make sure not to do that here as well.

JL: Since the number-one issue [that Emma Goldberg’s report identified as a problem with Yale’s process] is confusion, is the answer to communicate better or is the answer that the process itself is too confusing and needs to be streamlined?

EG: I believe that the process itself is working fairly effectively. One of the biggest recommendations that we are making in our report—and this is something that we’ve been working with the Title IX Steering Committee on—is developing more clear communications to students. There’s a lot of confusion among students about where to even begin the process. Do they begin by going to their residential college masters or deans? Do they begin by going to their academic advisers? The Title IX office is working on redeveloping their website and ensuring that during freshman orientation they are more clearly communicating to students how to navigate this process.

JL: Can we talk about “affirmative consent”? At every step of the way [during a sexual encounter], there has to be consent either verbal or very clearly otherwise. Is that realistic?

NG: To some degree, requiring affirmative consent bears the promise of changing the relationships between men and women and arguably will enable—will require—women to take agency for sex. That’s not a bad thing: to say, “I want it” as opposed to “I’m going to get drunk and who knows where it’s going to go.” I feel very differently about it in a criminal setting, but in the college setting, will this change norms of behavior? It may. I think it’s a good thing if women take agency.

EG: Yale has developed a great set of workshops on communication which are given to freshmen during orientation. One of the main messages is that, by the time we enter college, we are very capable humans and we have communication skills. It’s actually not that difficult to pick up on subtle body language and things that indicate enthusiasm versus hesitation.

NG: Right, but I believe the issue is not so much reading the cues as it is the interpretation afterwards of the two parties....Let me step back as a former judge for a moment. You’re likely to see, to some degree, the same kind of gray area as you saw before. He will say, She shook her head, or She put my hand on X—and you’ll have the same kind of issue.

MR: I certainly agree with your sense that it is critical to the education and culture-change work that we’re trying to do. You only have to be involved even slightly with one of these adjudications to know that there are horrible things that we need to stop from happening in the first place. That being said, we did not have a clear definition of consent in our prior policy. That was very hard for adjudication panels to work with. I’ll be interested to see how this [Oberlin’s] new policy goes. I think it helps our panels—particularly in instances where the only evidence is the word of the parties, which is many of these cases—to think about what preponderance might look like. That’s a very challenging question. Somebody says, I had consent; the other party says, I didn’t consent. You have to try to talk through who did what and what was convincing at a particular moment.

In a recent sexual assault adjudication that we ran, it became about the logic of which story made sense. In this case I do think the affirmative consent definition provided clarity, but that’s not to say it will in every case. There are moments you’re still dealing with the uncertainty of different versions of events.

JL: Have we gotten beyond the hook-up culture, which was all over the media ten years ago? Are we still in the same environment?

MR: Yes, absolutely. And it involves social media in complicated ways, so there’s a technological piece that’s very challenging and interesting in terms of where the institutions’ scope is—and their ability to control it. You don’t control Facebook.

What I see is that there’s a real disconnect between daytime culture and nighttime culture. During the day, students are thoughtful and progressive and embrace feminist ideas and care about equity and all of this. And then, after dark, something really different happens in social relations.

EG: I think that’s absolutely true. We had a pretty big scandal related to one of our fraternities on campus recently. One of their initiation rituals involved sexual harassment. I was shocked to see some people on campus be defensive of this fraternity. These are people who are perfectly comfortable spouting feminist theory and discussing these sorts of issues in the classroom. Yet, outside the domain of the classroom—once it involves social ties—their beliefs about all these things become much more hazy. It’s much easier to discuss on the theoretical level than when it actually plays out with your friends and your classmates. When it affects their social life, people get a little bit more uncomfortable standing by their values.

JL: As both an alum and a woman, and also as a parent of a girl and a boy who have both been through college, I’m interested in the fairness aspect of this. The argument about this “preponderance of evidence” standard is that it’s stacked against men.

NG: I think the preponderance issue standing alone would not be terrible if you didn’t have, again, all the other issues. When the person doing the adjudicating is a Title IX officer, preponderance means she’s going to err on the side of the woman and not the man, because you’re going to lose your funds if you rule in favor of the man—or at least there’s a risk of it. So this is a decision governed by risk assessment rather actual adjudication.

A university has to stand up to the women who lose in these proceedings and who then go to the New York Times or go to the Wall Street Journal complaining—after an appropriate process. Or they may say, the fact that I had to repeat my story more than once was blaming the victim. Well, it is blaming the victim perhaps—but it’s also the way in which we get at truth.

It’s not just the preponderance standard; it’s all of the accretions of value judgments that we make after the process results in a finding for the man—where somehow due process is seen as harming the woman. For example: the notion that some women may not express their real feelings [in a sexual encounter] because they’re frozen with fright. Therefore, if they haven’t expressed their feelings, in a sort of non-affirmative-consent setting, it doesn’t necessarily mean that they didn’t have negative feelings. That could be true. It also could be that they’re lying. It could be one or the other. You can’t have a rationale that only excuses the woman.

MR: I agree with that. It is my obligation as a campus officer on these issues to build confidence in the process—because when people don’t know if the process is fair, it’s going to be hard for anybody to think any outcome is good, no matter what it is.

I’m looking for ways to be as transparent as possible about the process while keeping particular cases private. Whether that’s developing training scenarios that we widely publicize that are based on real cases but have been appropriately changed to provide privacy; whether it’s trying to publicly run some of those processes with pretend scenarios so people can see how they actually work—there are a lot of creative ideas that we can experiment with as campuses, to try to help build a sense that the decisions will be fair.

NG: What is troubling to me is that so many of the problems are taking place because women feel so oppressed that they cannot consent willingly. Sexual violence is one thing, alcohol is one thing, but then there is “I think I have to say yes, because otherwise I’ll be embarrassed” [or] “I won’t be popular.”

Affirmative consent doesn’t help with that. All of that sense of sexual coercion that still exists is societal. We have sexual freedom in the midst of profound inequality. What is it that enables women on the one hand to talk about sexual freedom—I can dress any way I want, I can have whatever drugs I want—but on the other hand to feel oppressed by the systems of power that make them feel they have to say yes?

We need a cultural change. In lots of ways, women don’t feel they have agency over their lives. That’s what we have to address. I believe that ultimately the misconduct issue would be—not totally, but to some degree—resolved if women felt free to say, “You’re adorable, but no.” Or “I’m outta here.” That’s the problem.

MR: I really agree with that. We certainly know from the public health literature that any focus on individual behavior change that doesn’t look at structural inequalities just doesn’t work, whether you’re talking about sexual behavior or any other kind of behavior.