Richard Perez-Pena's New York Times article on Patrick Witt consisted of little more than dubious inferences and negative insinuations. But the story did, unequivocally, feature one revelation: someone (presumably either in the accuser's entourage or a Yale administrator) violated Yale's procedures by leaking existence of the "informal" complaint against Witt--with the motive of torpedoing his Rhodes candidacy. In combination with the Times' irresponsible reporting, this violation of procedures caused enormous damage to Witt's reputation. Yet there's no sign that Yale has undertaken an investigation as to whether a university employee violated Yale procedures and Witt's due process rights, and an e-mail to Yale's P.R. office asking if such an inquiry was planned went unanswered.
In a thoughtful essay, espn.com's Jemele Hill examined the fallout: "Real due process in this case was destroyed by whomever shared the story to the Rhodes Trust and The New York Times," and as a result "Witt's reputation has been irreparably damaged." Hill, one of a handful of reporters or columnists to issue a genuine, public apology for having rushed to judgment about the Duke lacrosse case, condemned both Rhodes and Yale for "hiding behind confidentiality and an unwillingness to comment," leaving Witt with no avenue for regaining his reputation. Hill concluded that "with so much confusion between the reported timeline and Witt's version, either the Rhodes Trust or Yale is obligated to clear up whether Witt's scholarship campaign ended at his request or theirs."
Hill's hope that the Rhodes Trust will bring transparency to what happened (which would include revealing the improper leaker's identity) seems far-fetched. But Yale's silence is harder to excuse. Even if (as is likely, given campus politics) the Yale administration is afraid to be perceived as caring about Patrick Witt, the university's silence about such a flagrant violation of the school's sexual harassment and assault policy stands in stark contrast to the administration's loquaciousness about the policy in general. Ironically, on Tuesday, Yale president Richard Levin penned a university-wide e-mail hailing Deputy Provost Stephanie Spangler for producing a "comprehensive, semi-annual report of complaints of sexual misconduct and related remedial actions."
Politics, Procedures, Pretenses, But No Due Process?
Levin noted that the Yale administration "thought it was important to provide greater transparency about the entire array of concerns--including verbal harassment and sexual assault--to motivate the Yale community to improve our campus climate." After some standard boilerplate ("let us join together unified in a common commitment to proper behavior and mutual respect"; "there is no place for any form of sexual misconduct on our campus"), Levin got to the heart of the matter: "The new procedures and services we have put in place are necessary, but they are not sufficient."
The Witt affair, of course, exposed to the world the shortcomings of those procedures even as they currently exist. Yale's "informal complaint" procedure ensures limited or no investigation and allows the process to begin on the basis of an accuser's "worry." The university's formal complaint procedure, meanwhile, promises the accuser "considerable control . . . as the process unfolds," culminating in judgment by an unfair, preponderance-of-evidence standard.
Yet according to Levin, these procedures, wildly tilted in favor of the accuser, are "not sufficient."
In her report,
Spangler spoke much more bluntly about the "informal" complaint process from
which the improper leak sprung. The deputy provost dropped any pretense that Yale seeks to provide due process
or find the truth. Instead, she affirmed that the informal complaint
procedure's "goal is to achieve a resolution that is desired by the [accuser],"
so that accusers can "regain their sense of wellbeing," even though the process
provides no mechanism for determining
whether the accuser is telling the truth. In fact, the process seems all
but designed to ensure that the truth won't
be discovered, especially if the accuser is less than truthful. According to
Spangler, Yale wants the informal complaint procedure to give the accuser
"choice of and control over the process." This goal is incompatible with
providing due process to the accused.
Sexual Assault Statistics
Spangler's report details thirteen allegations of sexual assault by Yale undergraduates from 1 July through 31 December 2011. Since Yale currently enrolls 5322 undergraduates, the report suggests that 0.24 percent of Yale students reported a sexual assault over this six-month period.
The FBI crime statistics for the last six months of 2011 aren't currently available. But during the period from 1 January through 30 June 2011, New Haven, with a population of around 130,000, experienced 25 reports of sexual assault. That means 0.02 percent of New Haven residents reported a sexual assault over this six-month period. Making the not unreasonable assumption that instances of sexual assault in New Haven were about the same in the second half of 2011, per capita reports of sexual assault on the Yale campus were 10-12 times greater than those in New Haven.
could Yale have a rate of sexual assault many times greater than the city the
FBI has billed the fourth most dangerous city in
the country? Spangler provides an answer, buried in a footnote on the last page
of her document: "This report uses a more expansive definition of sexual
assault" than required under federal law (or that any police department
anywhere in the country employs). Moreover, none of the 13 Yale students who
alleged sexual assault even filed a formal complaint at Yale--much less reported
the alleged crime to police. As a result, no medical or criminal investigations
of their cases ever occurred. When the allegations remained confidential, this
didn't pose much of a problem for the accused. For Witt, obviously, the outcome
was much different.
Tricky Terminology in the Times
When Times readers learned from Richard Perez-Pena that "a fellow student had accused Witt of sexual assault," how many of them realized that Yale was actually using an "expansive definition" of this otherwise commonly-understood term? How many readers further realized that Yale had designed the procedure about which Perez-Pena wrote so as to give Witt's accuser "control over the process," including limited or no investigation? And how many readers could have dreamed that the procedures guiding the allegation against Witt have produced the extraordinary claim that sexual assault is far, far more common on this Ivy League campus than in the fourth most dangerous city in the country? And since the Times went to print without ever speaking to Witt or (it seems) anyone sympathetic to him in the Athletic Department, didn't the paper at the very least have an obligation to provide the context that would explain the highly unusual procedures and definitions that Yale features?
Levin and Deputy Provost Spangler are cowards on the issue of due process,
there's no reason to believe that they share the indifference of a figure like
the Times' Perez-Pena or the malevolence of someone like Poynter
source/seminar instructor Wendy Murphy. Rather, they
appear to have embraced a thesis common among both the professoriate and
"victims' rights" groups: that the way to persuade more real victims of sexual
assault to report the crime is to jerry-rig procedures to make it more likely
that those who do file reports will prevail, whether in court or before campus
"judicial" tribunals. This mindset, however well-intentioned, contradicts any
reasonable definition of due process and presumption of innocence. That
President Levin seems prepared to further abandon these bedrock American
principles, as he implied he will do in his campus-wide e-mail, is a sad
commentary on the state of higher education.
KC Johnson is a Professor of History at Brooklyn College and the CUNY Graduate Center, and author of the blog Durham-in-Wonderland. He is co-author, with Stuart Taylor Jr., of "Until Proven Innocent."