Adequate alcohol to get in touch with it rape?

On March 22, 2013, two Yale undergraduates had sexual intercourse. The female student was intoxicated. The male student was not.

Thirteen months later, on April 22, 2014, the female student filed a formal complaint with the University-Wide Committee on Sexual Misconduct, alleging that the sex had not been consensual.

Throughout September and October, the UWC hired a fact-finder and held a hearing to determine whether the male student — the respondent — had violated the University’s sexual misconduct policies.

In its final report dated Oct. 31, the UWC stated that the respondent had not violated University sexual misconduct policy. The panel recommended that the respondent and complainant have no direct or indirect contact for the remainder of their time at Yale.

According to the timeline of UWC procedure, Yale College Dean Jonathan Holloway — the final decision maker in all cases where the complainant is an undergraduate — was supposed to announce his final decision by Tuesday. As of late Thursday evening, the complainant had not received the decision. Holloway declined to comment for this story on Thursday afternoon.

Over the course of the investigation, dozens of pages of documents were compiled that detail both parties’ version of the events. These documents, which the complainant provided to the News, include  interviews, emails and text conversations. They also comprise the fact-finder’s report and the UWC’s final recommendation. The documents offer an inside look at UWC proceedings, which are normally confidential, and reveal what happens when a student files a formal complaint of sexual misconduct at Yale.

They also highlight a process that has come under criticism as recently as this week for arbitrary decision-making and inconsistent procedures. The UWC dates to April 2011, when then-Provost Peter Salovey announced the body’s formation shortly after the Department of Education’s Office for Civil Rights announced an investigation into Yale’s compliance with Title IX, the federal gender equality law.

The documents reviewed by the News paint a picture of a thorough process that, in this case, weighed an abundance of often ambiguous evidence, including messages perhaps fully understood only by the parties themselves. At certain points, however, the process did not abide by its own guidelines, the documents show.

In her capacity as independent fact-finder for the case, supervisor at the Yale Child Study Center’s Trauma Section Miriam Berkman LAW ’82, who did not return request for comment, recorded the accounts of both the complainant and respondent, collected evidence and conducted interviews for a 43-page report. Among others, this document, dated Oct. 15, provides the basis for the narrative of this story. 

In an effort to protect the privacy of the students involved, the News has chosen to withhold the names of the complainant and the respondent, as well as details about the location of events. UWC Chair David Post and University Title IX Coordinator and Deputy Provost Stephanie Spangler did not return requests for comment. The News contacted the respondent by email to give him an opportunity to comment, but he did not reply.

The University responded to a request by the News for comment with a written statement emailed by University Spokesman Tom Conroy.

“The University is eager to advance open community discourse regarding its sexual misconduct procedures. That said, we will not provide details of specific cases, nor will we support the efforts of others to do so,” Conroy wrote. “We believe that members of our community will hesitate to bring forward their complaints or participate in the process if they fear that their cases may be publicized and that confidential documents may be made public.” 

Eden Ohayon ’14, who also filed a formal complaint with the UWC last May, said Yale’s sexual misconduct policies are superb on paper. However, she said, if the University does not abide by these policies in reality, complainants have the right to publicize their claims.

Ohayon added that the UWC did not resolve her complaint according to its own timeline. A process that was supposed to take 60 days took four months, she said.

“Yale can’t just hide behind this confidentiality clause that they make you enter into as a part of filing a formal complaint,” Ohayon said. 

THE NIGHT IN QUESTION: MARCH 22, 2013

The night of the alleged assault, the female student was drinking and playing games with friends in her suite when she received a text message from the would-be respondent. According to the accounts of both students, they had been involved in a brief yet exclusive romantic relationship the previous fall.

At the time of the incident, they were not engaged in an ongoing romantic relationship. They had agreed to end all sexual contact just days earlier, during spring break. By both students’ accounts, the male student still had strong feelings for the female student that were not reciprocated.

At 7:18 p.m., the male student texted the female student, and a conversation ensued. The male student said he was alone in his room working. At 8:57 p.m., the female student texted the male student that she was “tipsy” and had started playing drinking games. By this point, she had moved to the suite of some other students in her entryway, according to cell phone screenshots obtained by the fact-finder.

The students continued to text as the female became increasingly intoxicated. At 9:45 p.m., she texted the male student explaining the drinking game she was playing, ending with, “I’m so hammered I can’t even…” According to the complainant’s account in the fact-finder’s report, the text conversation was “insignificant chitchat” until the male student said in response, “Make sure to keep texting me though, you’re clearly pretty trashed and I wanna make sure you’re okay : )”

Since the two had previously hooked up while intoxicated, this message set off an internal alarm, according to the complainant’s account included in the fact-finder’s report. She said she felt the conversation was headed down a familiar path — one repeated throughout the spring — that would end in a sexual encounter she no longer wanted. Anticipating that she would become more intoxicated, the complainant said she sent the messages to protect herself against the possibility of that outcome.

“Don’t let me try to seduce you though,” she texted him, followed by a second text: “Because that is a distinct possibility.”

However, the respondent said he did not interpret those texts in the same way.  According to his account in the fact-finder’s report, the messages came as a surprise to him, in light of their agreement earlier in the month to simply remain friends.

In her next text, the female student alleged, she continued to express that she did not want to have sex.

“I mean … sex is awesome, and I might try to get it from you. But I shouldn’t. I don’t think,” she wrote.

After the male student responded that he was interested, adding that sex would not be a “big deal,” the female student said she did not immediately respond for several minutes. This was another attempt to avoid a sexual encounter, she said in the fact-finder’s report.

Still, according to the fact-finder, the male student interpreted the female student’s texts as “ambivalence,” not an explicit refusal of a sexual encounter.

Several minutes after receiving no answer, the male student sent a second text saying his roommates were not present and his roommate’s bed was “looking rather comfy.” The female student responded, “None of my roommates are here and I’m too hammered to make it to [your dorm]. Is this a bad idea…” 

In a June 3 written response to the formal complaint that he had received notice of five days earlier, the male student said it seemed like the female student had changed her mind about just being friends. However, the fact-finder reported that he sensed “uncertainty” and “ambivalence” in the female student’s texts, and decided to have a face-to-face conversation to resolve the situation. He told the fact-finder that this conversation was the reason he went to her room — not necessarily to have sex.

“Nope,” he responded to the female student’s previous text, “cause I’m gonna wear your favorite outfit : ) I’m on my way.”

The complainant then responded, “Goto [sic] my room I’ll be there soon.”

The male student said he interpreted her message as an invitation. Yet, the female student said the text did not indicate consent. Rather, she said she thought he would persist until she acquiesced. In a relationship she characterized as “highly emotional and volatile,” the male student would often respond to a refusal with “screaming, crying and other histrionics that she found overwhelming.” she said. 

According to her account in the fact-finder’s report, she was too intoxicated to have the cognitive or emotional ability to find another solution and simply capitulated. 

When the female student returned to her suite, the male student was waiting for her. According to the male student’s written response, when the female student entered the room, “little more than ‘Hello’ was said before she grabbed [him], kissed [him] and [they] began to have sex.” He claimed they each undressed themselves. They had sex twice that night, he said, and once more in the morning.

Each time, the respondent said, the complainant was “an enthusiastic participant.”  The male student said that though he knew she had been drinking, he had no idea how much alcohol she had consumed and did not know she was significantly impaired. He said that after their second sexual encounter that night, the complainant said she was sober.

According to the fact-finder’s report, the female student said she remembers nothing more than stumbling back to her room and having sexual intercourse once with the male student. The next morning, she said, she woke up feeling terrible that she had become so inebriated and had sex despite not wanting to. She said she immediately blamed herself, lying in bed silently crying with her back turned to the male student. When he initiated sex that morning, the female student said she did not resist because she felt refusal would be too emotionally exhausting.

When she reread her texts that morning, she said she did not remember sending most of them. She could not recall exactly how much she had had to drink that evening. She later estimated that she had at least one drink of vodka and three beers. 

THE IMMEDIATE AFTERMATH: SPRING 2013

While the complainant said she was upset with the events of March 22, she did not initially consider the encounter to be an instance of sexual misconduct. A few days later, however, the complainant was surprised when her friends said the respondent’s actions constituted rape because her level of intoxication rendered her unable to give consent.

On March 28, 2013, the female student sent the male student an email warning him to never engage in sexual activity with anyone as drunk as she had been that evening because that could constitute sexual misconduct. She emphasized, however, that she was simply looking out for him and did not plan to take any disciplinary action.

Disturbed by the message, the male student forwarded the email to his residential college dean, who advised him to meet with the female student to discuss the situation. In an interview with the News, the complainant said the dean never contacted her after receiving the forwarded email.

The female student said she reluctantly met with the male student over lunch. According to her account in the fact-finder’s report, she told him that the evening of March 22 had been different from their previous casual sexual interactions because he had ignored her decision in early March to end all sexual contact. The male student, however, told the fact-finder that during this meeting, the female student expressed that she was not hurt, and that their encounter had been consensual. The complainant said she does not remember saying anything to that effect.

For the remainder of the semester, the two had limited contact.

On May 27, 2013, the male student sent the female student an unsolicited email, included in the fact-finder’s report, that detailed how he thought she had changed over the past year. A few hours later, the female student responded angrily, writing that he had sexually pressured and manipulated her during their relationship — views she would later express to Berkman during the fact-finding process. She described that in the two months since March 22, her emotional reaction to the male student’s presence had only escalated, stating that the mere sight of him could make her want to cry or vomit.

In her email, the female student also directly accused the male student of sexual misconduct during the night in question for the first time.

“I can’t figure out quite where to start, so let’s just start with objective fact: you raped me,” she wrote. “You are a rapist.”

ONE YEAR LATER: COMPLAINT FILED

On April 17, 2014, the complainant visited campus for the first time since taking the 2013–14 school year off. Once she realized that she would see the male student around campus when she returned full-time in the fall, she visited the Sexual Harassment and Assault Response Education center she told the News. Over the course of the next few days, the female student met with a SHARE counselor and Pamela Schirmeister, the Title IX coordinator for Yale College at the time.

She decided to file a formal complaint.

On April 22, the complainant met for the first time with then-UWC Chair Michael Della Rocca and UWC secretary Aley Menon. She recalled that Della Rocca and Menon were encouraging about the prospects of a potential complaint. Neither Della Rocca nor Menon returned the News’ request for comment. During that initial conversation, the female student said Della Rocca and Menon asked if she wanted to begin work on the case over the summer or wait until both students returned to campus in the fall.  She elected to wait.

She said Della Rocca and Menon then helped her write a brief one-paragraph formal complaint in which she alleged that she and the respondent had had sex in March 2013 while she was intoxicated and he was sober but aware of her intoxication.

After leaving the meeting, the complainant said, she wanted to revise her complaint to add that the encounter had not been a consensual act. She emailed Della Rocca and Menon with her revised draft, asking for their opinions. She received no response, she said. However, the update was included in the final version of the complaint sent to the respondent.

On May 1, the complainant emailed Della Rocca, Menon and Schirmeister asking for an update. Again, she said she received no response.

RESPONDENT NOTIFIED: SUMMER 2014

On May 28, the UWC sent an email to the male student notifying him that the female student had filed a formal complaint. The notification letter contained the complainant’s allegations, a copy of Yale’s sexual misconduct policy and information about UWC procedures.

On June 3, the respondent sent a written response to the UWC. In his response, which is included in the documents provided to the News, he denied that he had manipulated the situation for his own benefit and was “given no reason to believe that [she] felt in any way used or hurt by this encounter.”

“To call this incident nonconsensual … is an oversimplification of the circumstances, and ultimately untrue,” he said in his response. “I had no reason or opportunity to suspect that [the complainant] was as drunk as she later claimed to have been … There were no signals at any stage during this encounter that would suggest consent had been withdrawn or retracted.”

RETURN TO CAMPUS: FALL 2014

In the days leading up to the complainant’s return to campus, she emailed Della Rocca, Menon and Schirmeister to ask about interim measures before any formal hearing, she said. She was directed to Angela Gleason, the new Yale College Title IX coordinator. In a meeting on Aug. 28, Gleason said that she would send to the complainant the respondent’s class schedule so she could avoid running into him.

According to UWC procedures, the Title IX coordinator is responsible for interim measures that “protect and support the complainant. University officials are expected to cooperate in implementing those recommendations.”

After the initial meeting with Gleason, the complainant received no further information about the respondent’s schedule. A follow-up email sent by her SHARE advisor to Gleason a week later also went unanswered, the complainant said.

The only information she received, the complainant added, was notification of two events the respondent would be attending in her residential college.

UWC procedures mandate that an independent fact-finder be assigned to the case no later than seven days after the UWC chair receives the formal complaint. Though the chair received the complaint on April 22, it was unclear when the UWC decided to start counting those seven days — particularly since the complainant chose to wait until after the summer to move forward.

Still, it was not until Sept. 16 that the female student received an email from Miriam Berkman, the assigned fact-finder. 

The delay was due to issues with fact-finder availability, according to a Sept. 2 email from the SHARE advisor.

UWC procedures call for an “impartial fact-finder from outside the University.” On the Yale School of Medicine’s website, Berkman is described as a supervisor in the Child Study Center’s Trauma Section and a former faculty member. The University would not comment for this story beyond the emailed statement.

“We regret very much the delay and will move forward as swiftly as possible,” Menon wrote in an email to the complainant on Sept. 3.

The complainant said she found delays and breaks in communication unacceptable and frustrating.

“I felt like a petulant toddler throwing a fit in the corner,” the complainant said. “I don’t feel like people who come forward should have to take the extra painful step of getting people to pay attention to them.”

THE INVESTIGATION

From Sept. 22 to Oct. 15, Berkman conducted four separate interviews, two with the complainant and two with the respondent, to compile their accounts of their relationship and the events of March 22. She also interviewed three individuals who had been playing drinking games with the female student that night.

In addition to the interviews, Berkman reviewed five documents, which she included in her final report: text messages from the night of the incident, two email correspondences between the students, the complainant’s written rebuttal to the respondent’s initial statement, and additional information the complainant supplied to provide more context about their relationship.

According to UWC procedures, the secretary must receive the fact-finder’s final report within 21 days after the fact-finder’s appointment. Berkman’s final report was dated Oct. 15, 23 days after her first meeting with the female student and 29 days after she first reached out to the complainant to notify her that she had been appointed.

Berkman’s report states that the complainant said that the history of her relationship with the respondent, combined with her level of alcohol intoxication, rendered her unable to give the unambiguous consent mandated by University policy. She requested that the UWC panel expel the respondent.

The respondent, however, claimed that he had “reasonably inferred consent” based on the complainant’s texts and actions that night. In the report, he speculated that she had filed her complaint vindictively in response to his behavior in spring 2013.

“This case concerns a single episode of sexual contact that occurred in the context of a highly emotional deterioration and dissolution of the parties’ ongoing relationship,” Berkman wrote in the report. “While the history of the parties’ relationship is relevant to understanding the context of this one incident, there is no need for the panel to resolve the many differences between [the students] regarding the course of their relationship.”

Berkman added that the panel should be primarily concerned with determining whether the complainant was capable of giving positive, unambiguous and voluntary consent given her level of alcohol intoxication, and whether the respondent knew or should have known how impaired she was.

While Berkman acknowledged that the complainant claimed to have been seriously incapacitated, she also wrote that the complainant “was not so intoxicated that she was unaware of what was happening around her and she was able to engage in a texting conversation in which she [later] said that she consciously employed several strategies to resist [the respondent].”

When the complainant received the report on Oct. 16, she was concerned the report was biased against her, she told the News. Therefore, on the same day, she submitted four supplementary statements to Berkman, each from close friends who had not been present on the night of the incident but could, according to her, testify to her low alcohol tolerance.

All four said that the number of drinks she consumed that night was likely enough to incapacitate or severely impair her judgment.

“The details of the amount consumed by [the complainant] that evening … are significantly beyond her point of incapacitation, as I understand it,” one friend wrote.

Berkman added in the supplemental report, however, that for the most part, the new statements did not illuminate the complainant’s capacity to consent.

“It is undisputed that she was highly intoxicated that night,” Berkman wrote. “The more complex and central question for this committee is whether this level of intoxication caused [her] to ‘lack the ability to make or act on considered decisions to engage in sexual activity.’”

THE HEARING: OCT. 21

On Oct. 13, the female student was notified that her hearing was set for Oct. 21.

UWC procedure mandates that the hearing take place no sooner than five days after both parties receive the final fact-finder report. At the time of the complainant’s notification, she had not yet received the fact-finder report. The complainant agreed to hold the hearing on the planned date, despite not knowing if she would receive the fact-finder’s report in time. She later told the News she worried that any postponement would result in further delays with the process.

The report was submitted two days later, on Oct. 15, and was emailed to the complainant the next day by UWC Project Coordinator Lani Danilowitz, who did not return request for comment.

On the morning of Oct. 21, the complainant and her SHARE advisor arrived at the Greenberg Conference Center at 391 Prospect St. The hearing ran for approximately three and a half hours, the complainant told the News.

The complainant and her adviser were assigned to a room in the basement. The respondent and his adviser were placed on the second floor, and the panel sat in a room on the first floor, the complainant said. UWC procedures state that unless both parties request otherwise, the complainant and respondent will not appear jointly before the panel during the hearing. 

The complainant told the News that a speaker system in her room allowed her to hear the proceedings occurring upstairs in the panel’s room; she said that the respondent had a similar arrangement. The speaker system was disconnected only when panel members were conversing among themselves, the complainant added.

UWC procedures state that the hearing is “intended primarily to allow the panel to interview the parties with respect to the fact-finder’s report.” 

The female student said she was brought up to the first floor for a 10-minute opening statement and then returned to the basement during the respondent’s statement. Afterward, the panel asked the complainant and respondent any clarifying questions related to the fact-finder’s report, she said.

While the panel interviewed the respondent, the complainant and her advisor wrote down any questions they had for him, she said. The questions were submitted to the panel members, who then decided which questions to ask. She said four out of her six questions were ultimately chosen. One of her chosen questions asked why the respondent did not try to initiate a discussion when she returned to her room that evening if he thought the texts were uncertain and ambivalent.

During the hearing, the complainant said she also explained the content of her text messages to the panel members. Given the nuance of text conversations and potential generational gaps in communication, she said, the panel’s interpretation of text messages may have been a “considerable problem” during the hearing.

“I felt really stupid having to explain the colloquial difference between a winky and smiley face to a bunch of Yale professors, but it’s a really significant difference in our world,” she told the News.

The complainant added that the panel members spent nearly an hour and a half gathering information about the context of the two students’ relationship. They also asked how much she had had to drink — inquiring specifically about which text messages she recalled and did not recall sending that evening.

Following the hearing, according to UWC procedures, the panel reaches its decision regarding any violations of University policy by secret ballot in a majority vote. Panel members cannot abstain from a vote.

THE FINAL REPORT: OCT. 31

On Oct. 31, 2014, the panel finished its three-page report. The report was compiled within 10 days of the final hearing session, in accordance with UWC standard procedure. The document outlines which events the panel accepted as fact, as well as its conclusion and recommendations.

Under the heading “Regarding Incapacitation,” the report noted the complainant’s statements regarding her level of intoxication and the supplemental witnesses’ accounts of her alcohol tolerance and capacity to consent. According to the final report, the respondent said during the hearing that the complainant “seemed no more inebriated than instances when she had given consent in the past.” 

Although the report acknowledged that the complainant had been intoxicated, it found that she had not been incapacitated as defined by Yale’s sexual misconduct policy and thus did not lack the ability to make or act on considered decisions.

As evidence, the panel cited the complainant’s statement that her text messages to the respondent had been part of a “conscious strategy intended to prevent an unwanted sexual encounter.” It also cited the respondent’s claim that the complainant entered her suite unassisted, where she allegedly embraced him and took off her own clothing.

“In light of the above findings of fact, the panel does not conclude, by a preponderance of evidence, that [the respondent] violated the Yale University policy on sexual misconduct by engaging in sexual activity with [the complainant] while she was incapacitated,” the report said.

A preponderance of the evidence is the legal burden of proof the UWC employs in weighing complaints of sexual misconduct, as mandated by Title IX. It is a lower standard of proof than clear and convincing evidence. 

The panel recommended that the complainant and respondent have “no direct or indirect contact with each other while either remains a student at Yale University.”

Upon receiving the report, the female student immediately burst into tears, she told the News.

“I left the panel thinking I had slam dunked it,” she said. “I was floored.” 

The complainant told the News that she took issue with multiple aspects of the panel’s report.

First, she said she does not agree with the panel’s decision to take as fact — and proof of considered decision — the respondent’s account that she undressed herself. 

“I don’t remember going up the stairs. I could’ve been crawling for all I know,” she said. “I think it’s ridiculous that when I say I can’t remember and he says this is what happened, his word automatically counts as a preponderance of evidence.”

She also criticized the panel’s decision to focus exclusively on her level of incapacitation that night and ignore the context of her and her respondent’s previous relationship. She said that while during the hearing the panel spent an hour and a half asking about deeply personal contextual details, it included none of those details in its final report.

The panel, which is charged with relaying to the decision maker only the facts from the fact-finder’s report that it deems relevant, noted only that the complainant and respondent’s “exclusive and intimate relationship” had changed to a “casual sexual relationship” and that they had a “series of emotionally intense conversations about their relationship” over the spring break in mid-March.

It did not write that both students told the fact-finder they had agreed to end sexual contact after the break.   

“Since the panel refused to acknowledge that fact, they could then ignore my claims … that the instance that occurred after spring break was markedly different from all those that preceded it,” the complainant wrote in a written response to the panel report, which she submitted to Holloway via email.

UWC members declined to comment or did not return request for comment on what factors are taken into consideration when writing their final report.

The panel’s report also cites the complainant’s text to the respondent to go to her room as further proof of considered actions.

But the complainant noted, both in the fact-finder’s report and in her interview with the News, that the text came after the respondent had already texted her saying he was “on [his] way” to her room. This text was not included in the panel’s report.

The complainant said that because the male student had already said he was on his way, what the panel saw as consent was, in fact, not voluntary.

She added that in the fact-finder’s report, the respondent acknowledged that her texts had expressed “uncertainty” and “ambivalence.” Upon reaching her room, she added, he made no effort to clarify that ambiguity — a fact which the respondent corroborated when he said there was no discussion before the sexual intercourse occurred. Therefore, she said, her actions did not meet Yale’s definition of consent as “positive, unambiguous and voluntary.”

“Ultimately, what they clinched me on was that amidst being really drunk, I had an internal, primal alarm go off that this was a pattern [that would lead to sexual activity I didn’t want],” she told the News. “They failed to take into account that you can be incapacitated and still send texts like that.”

“In the end, the message I got was, ‘If you’d had one more shot of vodka, it would’ve been rape,’” she said. “‘Sorry. Drink more next time.’” 

THE DECISION

Yale adjudicates complaints of sexual misconduct based on a three-step process. First, an independent fact-finder compiles information and submits a report to a panel for an eventual hearing. 

Second, the complainant and respondent participate in the hearing. Using information from the hearing and the fact-finder’s report, the panel determines whether the respondent has violated University policy. If the panel finds the respondent culpable, it again votes by secret ballot to recommend a punishment. The panel’s conclusions are put into a report and sent to both parties and the relevant decision maker no later than 10 days after the final hearing session. In this case, the panel’s report was sent to Holloway on Oct. 31, exactly 10 days after the hearing.

Finally, the decision maker reviews the panel’s report, as well as the initial complaint, initial written response and any addendums to the panel’s report either the complainant or respondent chooses to submit. After reviewing the report, the decision maker may ask for clarification from the panel, and then either “accept, reject or modify the panel’s conclusions or recommendations, in whole or in part.” He has the final decision.

According to UWC procedure, Holloway is required to render his final decision in cases regarding undergraduate students within 14 days of the final hearing.

Sixteen days have now passed since the hearing.

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