By KC Johnson
Here's a probable growth area for litigation: suits against colleges for rigging sexual misconduct hearings against males, some of whom are being convicted of rape and other sexual offenses without any semblance of due process. The federal government is implicated here: the Education Department's Office of Civil Rights has mandated a lower threshold of certainty in sexual harassment and assault cases, from the clear-and-convincing standard (around 75 percent certainty) to the preponderance of evidence standard (50.01 percent). So males can be branded as rapists for life if campus judges consider the accuser's version of events just slightly more likely than that of the accused.
As I noted previously, the Brian Harris case at St. Joseph's College represents an almost textbook example of how the forced adoption of a "preponderance of evidence" threshold makes factually dubious convictions more likely. A second case, filed by former Vassar student Peter Yu, raises some more complicated questions and is likely to get more attention. (You can read the complaint here.)
Complaint Filed a Year Later
Peter Yu and Mary Claire Walker were Vassar students and members of the college's rowing team. Yu and his parents are Chinese citizens, though he went to prep school in the United States. Walker's father is a long-time professor at Vassar--a pertinent fact in a case judged by three members of the Vassar faculty.
The two students consumed alcohol at a team party in February 2012; one of Walker's friends seems to have thought she was very drunk. After the party ended, Walker accompanied Yu back to his room. They started to have intercourse, but Yu's roommate entered the room and interrupted them; Walker then said she didn't want to go any further, and she left. The complaint quotes numerous, seemingly cordial Facebook exchanges between Walker and Yu over the next year, before Walker--on last day she could under Vassar procedures, a fact that is critical in retrospect--made a campus claim of sexual assault. She never filed a criminal complaint, nor did she, it seems, obtain a medical exam after her evening with Yu.
The rough outline of the next stages of the story will be familiar to anyone who follows campus judicial proceedings. Though Walker waited a year to file her charges, Vassar gave Yu almost no time to mount a defense: he was found guilty and expelled from the college two-and-a-half weeks after the complaint was filed.
Vassar--which explicitly affirms that its disciplinary panels do not use "formal rules of process, procedure, and/or technical rules of evidence, such as are applied in criminal or civil court"--denied Yu the right to an attorney and limited his ability to introduce exculpatory evidence at the hearing; the complaint also alleges that he did not receive an opportunity to cross-examine Walker fully. (This claim is impossible to verify, since the hearing was private.) Yu was found guilty, on the preponderance of evidence threshold, by a three-person faculty committee; his request that a student serve on the committee was denied.
Significance and a Star Chamber
Beyond the speed with which he was expelled, perhaps the most troubling aspect of the Yu case was the Star Chamber-like manner in which he was treated. Yu appears to have been tried before Vassar's "Interpersonal Violence Panel," which "hears allegations of violations of college regulations involving sexual misconduct." (Yu's attorney didn't respond to a question on this point, but among Vassar's disciplinary panels, the IVP allows an all-faculty jury, as occurred in this case.) Oddly, Vassar does not publicize the actual procedures the IVP uses, even in the Vassar student handbook--students are allowed only to obtain "specific information" from the dean of students. The college handbook doesn't explain why the college has elected to shield from public view the procedures it uses to handle sexual assault claims.
What other sections of the Vassar website do reveal raise eyebrows. Vassar has an extraordinarily broad definition of what constitutes sexual violence--which according to the college can range anywhere from rape to "treating the victim and other people as objects via . . . remarks" or "insisting on dressing or not dressing in a certain ways." In the event, IVP "panelists will have received specialized training with respect to these issues."
Neither Vassar's website nor the student handbook contains hints of what this "specialized training" entails. But the one university for which details about this sort of "specialized training" have been made public--at Stanford, thanks to legwork from FIRE--the results were chilling. (Stanford's was the training that suggested college adjudicators should interpret an accused student who presented his defense logically and persuasively as a sign of guilt.) More generally, the movement toward such "specialized training" to handle sexual assault claims (UNC had recently adopted the tactic as well) is another step toward denying an accused student access to a jury of his peers. Instead, the best he can get is a jury composed of students who have received "specialized training" that makes it more likely he'll be found guilty. The worst he can get is a pool like the one at Vassar, which consisted solely of faculty colleagues of the accuser's father.
Much like the Harris complaint at St. Joe's--which credibly claims that, in what was perhaps an abuse of the preponderance-of-evidence threshold, the university's hearings panel ignored or excessively downplayed highly exculpatory text messages between Harris and his accuser--the Yu complaint suggests that Vassar essentially dismissed numerous Facebook messages between Walker and Yu in which Walker discussed the evening, apologized to Yu, and at one point invited him to dinner at her home. The complaint notes that Walker testified that she sent messages out of fear of Yu.
The complaint doesn't specify the grounds upon which Yu was found guilty, although it appears as if issues of alcohol and consent played a role. In that respect, Walker's filing on the day the college statute of limitations expired is highly suspicious. If, according to Vassar, Walker was too inebriated to give consent, presumably Yu could have made an identical claim against Walker, since both parties had consumed alcohol that evening. But by filing on the deadline, Walker ensured that Yu wouldn't have any opportunity to file a counter-claim of sexual assault based on inability to give consent. Another note: since Walker never received a medical exam after the alleged incident, there appears to be no evidence of her (or Yu's) state of inebriation on the night in question.
Finally, the complaint observes that Yu has experienced tangible harm from Vassar's dismissal of due process. After being expelled from the college, he has been rejected (or simply told not to apply) by nearly a dozen other schools. That shouldn't come as a surprise: what college would want to admit someone whose previous school branded him a rapist? Yu's fate thus provides a reminder of how a college not providing due process can have a lasting impact on the subject of the college's action.
The OCR and Vassar
It's worth reiterating that the OCR itself, through the "Dear Colleague" letter of 2011, has helped to put on the table the issue of the relationship between Title IX and gender discrimination in sexual assault procedures. According to the "Dear Colleague" letter, colleges providing what could be deemed too much due process--adjudicating an accused student according to a "clear and convincing evidence" standard, or mimicking the criminal justice system by allowing the accused, but not the accuser, to appeal, or even (the letter strongly implied) allowing the accused student to cross-examine his accuser--violated Title IX's prohibition against gender discrimination. That was the case even though not all accusers in sexual assault cases are female.
If, in the OCR's interpretation of the law, too much due process constitutes gender discrimination against women, surely at some point too little due process constitutes gender discrimination against men. That is: unless the OCR sides with the likes of Wendy Murphy and believes that the mere filing of a sexual assault claim, even absent a criminal or medical investigation, transforms an accuser into a "survivor."
KC Johnson is a professor of history at Brooklyn College and the City University of New York Graduate Center.
(Photos: Peter Yu and Mary Claire Walker. Credit: Steve Aulenback/Sports Graphics, Stres Pikiran.)