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  • Travis Nemmer

Dear Colleague - Balancing Victim Privacy and Due Process in Campus Sexual Assault Cases

In 2011, Xialou Yu known as “Peter” to his friends, a Chinese national, and a sophomore at Vassar University, went to a party, and lost his virginity to a friend of his from the Vassar rowing team. Yu claims that he let this friend know that he was a virgin beforehand, as she led him to his room. She told him, “that’s alright, I know what to do.” In the days following, Yu and his friend exchanged emails, with his friend saying that she “had a wonderful time,” and that Yu, “did nothing wrong.” A month later, she texted him, saying that she was sorry to have led him on, that she wasn’t ready to enter a monogamous relationship with him, but she greatly hoped that they could preserve their friendship.

A year later, Yu received a summons from the Vassar administration, calling him to a faculty tribunal where he was being charged with sexual assault relating to the above night. Yu was denied any legal counsel at the hearing, unable to cross examine his accuser. Worst of all, Yu was denied the ability to bring in his accuser’s emails as exculpatory evidence, with the tribunal holding that the statements were “irrelevant,” and that they clearly “did not represent [her] feelings,” and were the symptoms of “shock and disbelief.” Less than two weeks after his initial hearing, Peter Yu was expelled from Vassar University.

Yu’s story is not an isolated incident. In July 2012, Xavier University Junior Dez Wells was expelled after an alleged assault that was prefaced by numerous, lascivious rounds of “truth or dare.” Wells was later arrested by actual (as opposed to campus) police, and his case was referred to the District Attorney’s Office. The case was handled by the head of the Hamilton County District Attorney’s Criminal Division. The grand jury resoundingly refused to indict Wells, with the prosecuting attorney commenting that, not only had no rape occurred, “it wasn’t even close.” Nevertheless, despite the fact that the District Attorney spoke to the President of Xavier University on Wells’ behalf, Wells was swiftly expelled from Xavier University. An examination of the transcripts from Wells’ shows that the decision was reached by students, who were tasked with examining official rape kits and commenting, “I don’t even know what this is.” Among other resources that tribunals like these rely on include the Stanford University Sexual Assault Manual, which holds that “acting in a logical and persuasive manner is typical for an abuser,” and that finders of fact should be “very, very cautious” in accepting a male student’s claim of innocence.

These, and many other cases can trace their origins back to a memorandum sent by the Department of Education to hundreds of institutes of higher education in 2011. The “Dear Colleague,” memo, it outlined new policies for schools to employ in handling cases of sexual assault. Sexual assault, it was later said, has become an “epidemic” on college campuses.

The letter claims that one in five young women will suffer sexual assault, or its attempt, on college campuses during their term of study there. This is a statement that has been adopted not only by the Department of Education, but by numerous advocacy organizations, and the President of the United States. Now, let’s set aside the fact that twenty percent of women being sexually assaulted would be a high rate of assault for Berlin in 1945, rather than Tenleytown in 2015 and examine the source of this statistic.

Originally, the oft-touted one-in-five statistic can trace its roots back to a study conducted at two universities in the South and the Midwest. It was a voluntary poll that rewarded respondents with a ten dollar gift card to The definition of sexual assault includes sex wherein one or both parties is intoxicated. Sexual assault does not even require actual physical contact to be reported in the study. Relying on a 2005 study, even “verbal abuse” can be considered a sexual assault. Furthermore, the fact that less than half of the persons the question was posed to actually responded poses substantial questions about the validity of the study. It doesn’t take someone with a background in statistics to know that people with strong opinions about a survey topic are more likely to respond to it. Statisticians have a word for this – selection bias – and it should be been a precluding factor in using these statistics for implementing nationwide policy.

And implemented it was. The 2011 Dear Colleague memo outlined a new, nationwide schema for handling campus sexual assault. Campuses are ordered to adjudicate sexual assault complaints, not beyond a reasonable doubt, or even clear and convincing evidence, but by a preponderance of the evidence. In short, the Department of Education is mandating that schools resolve criminal matters with the same burden of proof that is reserved for civil complaints. The Department of Education specifically states that standard of clear and convincing evidence (“Whether or not it’s ‘highly probable’ . . . that a sexual assault took place) is inconsistent with the spirit of Title IX. This order is paired with the potentially crippling threat that failure to “voluntarily” comply with this policy can be considered grounds for the Government to withhold federal funding for universities.

Also, subsequent studies, reported by the Bureau of Justice Statistics hold that the actual rate of sexual assault on campuses is somewhere around 6.1 per 1,000 students. So, roughly 0.03-in-5, rather than 1-in-5. Yeah.

Now, the letter clarifies that the preponderance of the evidence standard has been set by the Supreme Court for all civil discrimination litigation stemming from discrimination claims, as well as the standard set by Title IX of the Civil Rights, furthermore this is the same standard applied used in fund termination hearings performed by the Department of Education. According to the letter, schools that fail to have their own standards comport with this are in violation of the law. This logic makes perfect sense, if you’re the sort of person who believes the same standard of proof should be applied to lawsuits relating to hiring practices as actual sexual assault investigations.

Members of academia with less-jerky knees have expressed their disregard for new University policies throughout the country. The most notable exceptions have come from twenty-eight professors from none other than Harvard Law School. Harvard, along with numerous other schools devised their sexual assault policies in compliance with the Department of Education without ever consulting their law faculty. As a policy matter, the Harvard professors have also attacked this as a federal takeover of student disciplinary policy, which has traditionally been the purview of individual students. The Foundation for Individual Rights in Education has also outlined a guide to properly utilize and implement due process concerns regarding sexual assault complaints on campuses.

These rebukes have been largely unanswered by the Department of Education, and requests for comments or reply have been met without response. Campuses have been unwilling to challenge the Department of Education’s tactics for fear of losing their federal funding – which is a situation that will only lead to further Peter Yu’s in the world.

Ultimately, dear readers, I know that this is a blog dedicated to criminal law practitioners. Look, it’s even in the name. Here’s the thing though, as long as schools and the Department of Education believe that they know better than prosecutors and police officers, and want to delve into the world of sex crimes prosecutions without any formal knowledge or training, then the least they could do is start reading this blog too – like it or not, for many students today, the people are real practitioners.


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