Sex Offenders On Campus Are Being Found Guilty — So Where's the Punishment?

In 2011, the United States Department of Education’s Office for Civil Rights began investigating complaints by Yale University students that the school had failed to adequately respond to incidents of sexual harassment and sexual assault, resulting in the denial of equal opportunity to education. The students alleged that Yale failed to sufficiently respond to reports of rape or attempted rape and stalking, and seemingly condoned harassing behavior of fraternities whose members held up a “We love Yale sluts” sign outside a women’s center and chanted “no means yes” on campus.

This investigation concluded in 2012, after Yale agreed to a voluntary resolution. This agreement highlights “a number of policies, procedures and practices to improve its response to sexual misconduct complaints, ensure compliance with Title IX and its implementing regulation, and to resolve the issues of the complaint,” including designation of a Title IX coordinator, creation of new grievance procedures addressing sexual misconduct, training of all relevant parties, and the creation of a sexual harassment and assault response and education center.

Unfortunately, in 2013, although Yale has made much progress in adjudicating incidents of sexual harassment and violence since 2011, the practice of these reforms still lags behind the policy. As reported last week, Yale punished a student after finding him responsible for both “sexual harassment” and “sexual misconduct in the form of intimidation.” The student was suspended for a semester. Unfortunately, because the university handed down the punishment during the last week of classes before spring finals, the actual punishment amounted to only a one-day suspension to finish out spring semester. According to the victim, the university notified her that her attacker will return to campus for summer semester. 

While there is much outcry from many in the Yale community and beyond, there seems to be a disconnect with the university itself.  Stephanie Spangler, Yale’s Title IX coordinator and deputy provost of student affairs, explained that “in cases in which students are found responsible for sexual assault, the school begins its consideration of punishment with expulsion.” Furthermore, she stated that Yale has and will “apply as harsh a discipline as is warranted.”

And the university’s policy declares the same. According to the Procedures Governing the University-Wide Committee on Sexual Misconduct, Rule 7.6, “A hearing panel may recommend penalties up to and including expulsion from the University or termination of University employment, as discussed in applicable faculty, trainee, student, and staff policies and regulations.” But if this is the policy, why didn’t the university determine that expulsion was warranted in this case? And was a one-day suspension really “as harsh a discipline as is warranted?”

Witnessing the ineffectiveness of Yale’s new policies firsthand, the victim has reflected, “Yale is actually quite terrible with their penalties and I feel like a lot of the verdicts lack any teeth. . . . And I believe it’s actually discouraging other people from filing other reports.” Unlike the university, which speaks of the sufficiency of its punishments in a vacuum, what the victim identifies here is the problem of inadequate sentencing.

In criminal law, sentencing occurs after a finding of guilt. Generally, the punishment for a particular crime is governed by a statute which specifies the range of penalties. Similarly, in the federal courts, sentencing guidelines regulate what punishment makes sense based on the circumstances of that proceeding. Here, it appears that such standards are lacking, or, at the very least, ineffective. After all, handing out a de facto one-day suspension for what should be a semester-long sentence is tantamount to sentencing a criminal to a year in prison on December 30, but letting him out on January 1.

But aside from the mere ineffectiveness of sentencing in this particular case, inadequate punishment sends a dangerous signal to potential perpetrators. Although the philosophical principles behind sentencing have changed over time, the most common purposes for punishing criminals are retribution, deterrence, denunciation, incapacitation, rehabilitation, and reparation. Without significant penalties, there is little to deter the perpetrating individual. Likewise, a short sentence does little to express disapproval of the offense or incapacitate the offender.

As the victim’s statement acknowledges, when victims of sexual assaults witness a system that fails to adequately punish those guilty of such offenses, they are less likely to report them. This is especially true for sexual assaults, which are deeply personal crimes that often devolve into “he said, she said” disputes and can lead to public shaming and backlash in social media. When so many undergraduate students are already terrified of reporting sexual assaults to law enforcement for these and so many other reasons, universities, particularly those under the microscope as much as Yale, must do everything they can to ensure as few missteps as possible. Although Yale has made much progress over the past few years — indeed creating many procedures that are among the best in the country — it must now take the final steps in actually implementing policies that uphold the requirements and ideals of Title IX.

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Chris Kendall

I'm a lawyer at O'Melveny & Myers LLP. I graduated from Stanford University in 2007, having triple-majored in Art History, Classics, and Political Science. I graduated from University of Southern California Gould School of Law in 2010.

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