23 thoughts on “Yale: Still not getting it about rape

  1. What were the words of that Supreme Court decision?

    Something about how a woman has no rights that a man is bound to respect…?

  2. This is crazy. If the University has sufficient evidence to warrant reprimands, why are these cases not being referred to the police? Doesn’t Yale have a responsibility–perhaps a legal one–to inform the authorities?

  3. I think the Jezebel writer’s apparent inference that Yale employed the term “nonconsensual sex” to euphemize or otherwise downplay rape is probably unwarranted. Some criminal nonconsensual sex acts that would colloquially be grouped under the term “rape” have different nomenclature under penal codes in a number of jurisdictions, such that in the narrower legal sense rape is a particular subset of criminal nonconsensual sex. For example, in some jurisdictions, the legal term “rape” is not used to designate nonconsensual anal sex and nonconsensual oral sex even though those acts are treated no less seriously in law and carry the same criminal penalties as rape. Criminal nonconsensual sex is thus a category that subsumes rape but is not coextensive with it — except, again, in a colloquial sense that one may reasonably suppose Yale was not employing in a report prepared at least partly for legal purposes.

  4. I was once on a grand jury in a state that has no crime called ‘rape’. The prosecutor explained to us that the state legislature worried that jurors would bring to cases their own preconceptions of what does and what does not constitute ‘rape’; for instance, there are, even today, Americans who believe it is logically impossible for a husband to ‘rape’ his wife. So instead there are crimes with more technical-sounding names, like “first degree aggravated sexual assault”, which have fairly precise definitions. That way, jurors can’t follow their intuitions and have to follow the definitions.

    Maybe Yale had something like that in mind, too.

  5. True– there might be good reasons for using the term ‘nonconsensual sex’ rather than rape. But it’s not so likely that there are good reasons for giving only reprimands.

  6. Shouldn’t punishment for rape at Yale be meted out by the state of Connecticut, rather than by Yale? It does seem crazy, as Logos says, for Yale to be trying cases of violent crime. Don’t the police get the reports? Do they investigate the crime? Does the district attorney’s office just say, “Oh, Yale will handle this, they manage it really well”?

  7. Anon #6,

    It’s probably best not to conflate Yale’s disciplinary procedures with the State’s disciplinary procedures. Quite separately from any criminal penalties the State may apply, Yale still has the responsibility to make a decision about whether the student is to be suspended, expelled, etc. from Yale. These are two completely distinct disciplinary systems, aren’t they? Yale’s dishing out a suspension surely doesn’t preclude the State dishing out jail time.

    This also bears on some of the earlier issues. If Yale’s disciplinary system is distinct from the State’s, as it surely is, then the legal meaning of “rape” is irrelevant to what Yale means by the term. Thus, Jezebel is somewhat vindicated. Jezebel is making the case that, as a culture, we ought to use “rape” to mean “nonconsensual sex.” Whether the State uses “rape” in this way is quite irrelevant to Jezebel’s position, isn’t it?

  8. I’m am truly shocked. After all, it’s not as if Yale is one of those universities super famous for its hostile sexual environment to which it responds with institutionalized cowardice…Oh, wait! I forgot that Yale is totally one of those universities. Sorry.

  9. Matt,

    Yale’s disciplinary system is distinct from the criminal justice system, but it doesn’t follow that the legal sense of words describing criminal offenses is irrelevant to Yale’s reports, because the report has legal implications. First of all, the report almost certainly bears some relation to the requirements of Yale’s settlement of the federal investigation mentioned by Jezebel, and there are a host of other potential situations where the report could have significance to legal proceedings involving the university and/or its students. And even if that weren’t true, Yale could certainly have found it reasonable to adopt some of the same terminology as the criminal justice system in describing these matters.

    I wouldn’t say that Jezebel was actually making the case that, as a culture, we ought always to use the term rape to refer to any act of nonconsensual sex — at least, a case doesn’t actually emerge from the article. I’d say the author was simply assuming the case (or assuming that it was not really necessary to elaborate a case).


    The reprimand issue is curious, but the report is a little opaque on that issue. We don’t know what “sufficient evidence” means (how much is sufficient? sufficient for what?). It may be that in some cases the relevant Yale committee thought the evidence established the allegations to a probability sufficient that it felt justified in taking the action in question, but not to a probability sufficient that it would have been comfortable taking more severe action.

    There’s a certain illogic to this outcome (assuming for a moment that that’s what’s actually happening with the Yale disciplinary committee), but one does see contexts where, at least in practice, the determinants of a penalty include not solely the gravity of the offense, but also the relative degree of certainty to which the allegations were established. One not infrequently sees (or suspects, anyway) this with civil juries; even though it’s not supposed to happen, it appears to be a fairly common human instinct. An unfortunate side effect is that it can send a message that the people imposing the penalty considered the offense to be less serious than they really did, when what was really happening was that the persons deciding the penalty were either intentionally (if privately) taking into account, or unconsciously projecting, subjective uncertainties about the strength of the evidence onto their choice of penalty. I would think that the Yale committee members might feel particular pressure to do this, knowing that the more severe the penalty, the greater the chance their judgments about the evidence will be subjected to harsh external scrutiny and critique (e.g., a penalty of expulsion is much more likely than lesser disciplinary measures to trigger litigation by the expelled student) – yet they’re reluctant to take no action at all unless the evidence is particularly weak.

    All speculation, of course, but it could plausibly account for a few things we see in the Yale report that defy easy explanation.

  10. Unfortunately, that document that petition is far too unclear for me to sign it. Rather than asking college presidents to “take action” (which they’ll surely interpret to mean “be a dictator”), how about a petition to tell college presidents to cede authority to campus feminist/women’s action/anti-rape groups, so they can review policy and educate campus communities?

  11. The word “consent” muddies the waters and makes it appear that rape/sexual assault is a violation of a contract on a technicality.

    The rapist I managed to fight off was playing the game of “consent.” He was a terrorist who was determined to make me give him permission to rape me. I didn’t consent, not even after he punched me. I got my hands on my sewing scissors, fired a warning shot across his abdomen and told him that he would have to kill me before he raped me, and I was ready to kill him. And I really was. He called me a “crazy bitch” and left.

    Had the same thing happened to another woman who wasn’t so lucky, could she have given “consent” after an hour or more of being terrorized by this man? What if he had threatened to kill her if she didn’t? I don’t think so. “Non-consensual” misses the point entirely. Is theft “non-consensual borrowing?”

  12. Matt Drabek,

    Yale should leave discipline for criminal behavior to the criminal justice system, in my opinion. It should not attempt to try its students for rape at all. Since in any case Yale is not attempting to mete out justice (the criminal justice system is supposed to do that), the fact that the punishment for “non-consensual sex” is written reprimand does not seem scandalous at all.

    ‘Jezebel is making the case that, as a culture, we ought to use “rape” to mean “nonconsensual sex.”’

    I have no view about that (except that as a very general rule attempts to tell the culture how it ought to use a word are quixotic). But Yale is giving a legalistic definition, if not a properly legal one, so it does seem to me to make sense for their code to use technical terms, without as much baggage or as many preconceptions built into them as ‘rape’ has.

  13. Anon,

    There can be many good reasons why a student who has been raped might choose not to go to the police. Some police departments are extremely hostile to rape victims. (Sometimes police officers are the rapists.) Some people who are raped do not believe that prisons, themselves sites of widespread sexual assault, are the right response to what happened to them. Some may find dealing with police and the court system to be re-traumatizing. Those are all valid responses, and whether or not to pursue prosecution should be entirely up to the person who was assaulted.

    Separately from that decision, someone who was assaulted at their school has a legitimate interest in a response from the school. For example, they likely want to be able to pursue their studies without encountering their rapist in their dorm or their classes. They may wish to be protected from further harassment by their rapist or his friends.

    Whether or not a rape survivor chooses to involve the police, schools have a responsibility to respond appropriately to assaults that occur on their grounds. When they have sufficient evidence that a student has raped another student, the default response should be to expel the rapist. When they don’t have sufficient evidence to determine with a reasonable degree of confidence what happened, they should offer a range of kinds of support to the student who has come forward about assault that are not punitive toward the accused (e.g., accommodations on classes and living arrangements).

    I would be very interested if any readers of this blog can direct the rest of us toward “best practices” and universities that do this well.

  14. Hello, Elizabeth.

    Yes, I agree, of course, that it should be entirely up to the victim whether to pursue charges. But I am afraid I do not agree that in case the victim decides not to pursue charges, s/he is entitled to expect the university to prosecute the criminal in its own tribunal. Universities are not good at that. That’s not exactly a criticism; why should they be any better at prosecuting and adjudicating crimes than, say, some other large corporation is?

    You say that the accused should be expelled if there is “sufficient evidence” of rape. But there will inevitably be a problem deciding what evidence is sufficient. The criminal justice system has, for better or worse, a developed method for handling this problem, at least.

  15. Just as a gloss to the comments about it being entirely up to the victim to pursue charges, it’s worth clarifying that the decision to pursue criminal charges is and must remain ultimately the responsibility of the state. While in practice the state is rarely in a position to prosecute sex crimes cases successfully against the wishes of the victim, this is not always the case. If the state has or can obtain sufficient evidence to prosecute someone for rape without the victim’s voluntary participation, it has a responsibility to do so, in which case all persons subject to the laws of the land have an obligation to cooperate with the state in the manner and to the extent contemplated by those laws. The state is not the agent of any individual, even the victim. Naturally, the state has good reason to be sensitive to the wishes of a victim, but at the end of the day the state must take into account the interests of the criminal’s next potential victims as much if not more than the preferences of the last victim.

  16. Anon: Universities investigate all kinds of infractions. There are a variety of things I could have done to end up kicked out of my dorm room, or suspended academically — violating alcohol and drug policies, for example, or cheating on an exam. It’s not clear to me why we should think they can expel students for violating an alcohol code (I wouldn’t personally support expulsion for that particular infraction, but you get my point) but not for sexual assault.

    Universities have a responsibility to afford all students some form of due process, but they need not adopt all of the procedures of the state (including all of its standards of evidence and burden of proof) in order to suspend, expel, or otherwise sanction students. And choosing not to do so in cases of rape leaves other students badly unprotected.

  17. Hi Elizabeth,

    Well, I don’t think you can get the state to prosecute a student for having alcohol in a dorm room, so if the school is going to have an enforced rule, it will have to enforce it. This is a problem, I believe; colleges and universities are very, very bad at preventing students from abusing alcohol. (I know something about this topic, because I have a relative who was personally involved.)
    Cheating on an exam is different. That’s an academic offense, not a crime of any sort, and I believe universities are actually pretty good at adjudicating it.

    I do not agree that failing to suspend or expel students who are accused of rape leaves other students badly unprotected. The job of protection is much better left to the criminal justice system. I doubt professors serving on committees can investigate and prosecute rapists better than state prosecutors and police can, and I am *certain* that university administrators do not judge as well as judges do.

    I know this is a very sensitive issue. I have the feeling that I ought to stop commenting on it now.

  18. The issue is not an abstract one of “which is better: universities or police?” The issue is whether universities should have policies in place for students who, for whatever reason, choose not to go to the police, or go to them and find themselves still unprotected.

  19. A couple of replies to Nemo from #10:

    “…the report almost certainly bears some relation to the requirements of Yale’s settlement of the federal investigation mentioned by Jezebel…”

    This is a good point. It does look like Yale is somewhat yoked to legalese because of this.

    “I wouldn’t say that Jezebel was actually making the case that, as a culture, we ought always to use the term rape to refer to any act of nonconsensual sex — at least, a case doesn’t actually emerge from the article. I’d say the author was simply assuming the case (or assuming that it was not really necessary to elaborate a case).”

    Yes, I think I agree here. Jezebel is situating itself within a broader feminist movement to change cultural understandings of ‘rape.’ But Jezebel’s point should still hold here. In general, universities are free to define ‘rape’ in a way that captures a broader range of activities than legal definitions. And, so long as they aren’t under any kind of specific legal mandate (as Yale may very well be), they can suspend/expel/reschedule/move students for things that wouldn’t yield punishment under the law.

  20. In response to Elizabeth @ #14 (“I would be very interested if any readers of this blog can direct the rest of us toward “best practices” and universities that do this well.”):

    A good source for information about best practices is SAFER, an organization committed to empowering students to advocate for policy change. For a list of specific principles and best practices in the SAFER 2009 report, based on a preliminary survey of policies at almost 100 institutions, see here: http://safercampus.org/userfiles/file/safer_policy_report_022210_bleed_lores.pdf).

    The SAFER report does not address the question of best practices with regards to sanctions for perpetrators and creating an environment for victims that is free from retaliation and hostility, but the Department of Education and Office of Civil Rights are in the process of clarifying the question of whether and to what extent universities have an obligation to protect victims. See, for example, the April 2013 “Dear Colleague” letter, here: http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201304.html.

    A good benchmark to use in evaluating Yale’s track record of disciplinary actions for sexual misconduct is Duke University. Like Yale, they were the subject of a 2011 OCR Title IX investigation: http://yaledailynews.com/blog/2011/04/15/yale-not-alone-in-title-ix-probe/. Unlike Yale, however, they have decided to respond by (among other things) revising their guidelines for sanctions in cases of misconduct. As of this month, the first option to be considered by the committee that investigates sexual misconduct is expulsion–permanent separation from the university. See here for details: http://today.duke.edu/2013/07/sanctions.

  21. Matt D., I just wanted to add that I think the issue regarding the rape terminology wasn’t that there was any excessive narrowness to the legal term (i.e. it’s not as though the law treats those varieties of nonconsensual sex other than rape less seriously than rape – at least not in the examples I gave – it’s just that different varieties of nonconsensual sex crimes have generally been referred to in different ways).

    The one notable historical exception to this, albeit not relevant to the Yale report or the Jezebel article, was the old exclusion of nonconsensual sex by a man against his wife from the definition of rape or any other nonconsexual sex crime. That’s not what we’re talking about here; we’re talking about things like nonconsensual anal sex and nonconsensual oral sex, which were generally always crimes in a sense similar to but distinct from rape. It’s not obvious how those crimes acquire any different character by being, in a loose colloqiual way, called “rape”. They certainly don’t escape social condemnation and legal punishment through not being called “rape”.

    Underlying the Jezebel author’s attitude – and possibly others; I don’t know – seems to be a serious investment in the notion that “rape” needs to be the top-level category subsuming all nonconsensual sex offenses, or else… well, the “else” isn’t clear. Or else those other offenses won’t remain crimes? Or else society won’t continue to treat them with as much seriousness as rape? What is it?

    At any rate, it puts one in mind of that Inigo Montoya line: “You keep using that word — I do not think it means what you think it means.” No doubt the colloquial usage of “rape” has changed over time. I suspect this is relatively recent; historically I’d wager that, as with many terms of relevance to the law that are not pure specialist’s terms, the colloquial use more or less tracked the legal use. I don’t know exactly what point has been reached in that trend of decreasing rigor in the colloquial use of the term, but depending on the answer, I can see an argument for trying to correct the incorrect colloquial usage just as with many other words; I can also see an argument for accepting it; I’m just not sure I see any particular value associated with encouraging it at the expense of the longstanding and more rigorous sense, since the import (and not merely the meaning) with which the Jezebel writer invests the term seems to me to be based on misapprehensions. That’s the as-yet-unmade argument from which the Jezebel essay would greatly benefit.

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