We have no idea what happened and what is going on in this Yale case.
I think history and facts show schools do not like to expel students for sexual assault.
I don’t know why there is an assumption that higher ups in Yale pushed to get the athlete out. Maybe that happened but public knowledge on other cases suggest otherwise. Athletes are usually a protected class. Bias can go either way.
@Hanna, do you know Yale’s procedure was flawed?
Sexual assault cases are not brain surgery.
In a court of law, if the above was judged true in another case, would this be inadmissable in court in a different case?
If the above was never judged, would this be inadmissable in court in a different case?
It would likely be inadmissable under either scenario. There are pretty narrow exceptions for prior bad acts, but generally they don’t come in during the guilt phase of trial. During the sentencing phase, prior convictions are usually considered.
@Hanna You ignored this point I made about the investigator
Again, while I admit there’s room for bias when an attorney needs repeat business, I think the incentive is for the criminal attorney to conduct a thorough investigation which will stand up to scrutiny if the person who is expelled sued. Again, corporations hire outside counsel to conduct internal investigations all the time. Yes, those firms want repeat business, not only from the corporation investigated but from others. The best way to get that business is to conduct a thorough, fair investigation. (For others who may be interested…see this http://www.goodwinprocter.com/~/media/Files/Publications/Attorney%20Articles/2015/MCLE%20Internal%20Investigations%20Article.pdf ). Yale knows that it’s inevitable that eventually one of those who is expelled will sue Yale. It is also inevitable that one or more federal and state agencies will review its procedures for handling these cases. It is in Yale’s best interest for the investigation to be thorough and fair.
I’m not a judge. Nor have I ever tried a rape case. However, I do have friends and colleagues who have been ADAs who have tried rape cases. One of my closest friends used to be an ADA. One of the first cases she tried, if not the first one, was a rape case and she got a conviction. It was her first job out of law school. At least here in New York, there’s not some special panel of judges who adjudicate rape cases. Any criminal judge can do so and adjudicates them along with cases involving other crimes. Sometimes, judges are even switched in from the civil side when there’s a back up.
You say:
I think rape and bad break ups have always been in he same pot. That has more to do with human nature than the law. Sometimes, it’s a young woman who claims she was raped when the “relationship” she expected to have with the guy she had consensual sex with doesn’t happen. Sometimes it’s the guy who is angry that a woman has dumped him and rapes her after the relationship has ended. (There are a heck of a lot of women who have separated from or divorced men who are raped by those men.)
Hey, I’m not adverse to changing some procedures. But again, when outside counsel conduct internal investigations, the employees (or vendors, etc.) don’t have the right to have their attorneys cross-examine witnesses. They don’t have the right to assert the Fifth Amendment.
We don’t know what happened in the Montague case. I don’t think we should start with the presumption that the fact Jack Montague has hired an attorney to sue Yale means that his expulsion was unfair.
I’m NOT saying that the procedures were fair. I don’t know. I’m just not going to start with the attitude that Montague’s PR firms release is a fair, accurate, complete statement of what happened.
I actually think Yale’s is one of the best policies I have read. Their structure is bifurcated in that one can choose to file a “informal” or a “formal” complaint. There is no hearing with the filing of an informal complaint and the remedies include counseling, education or accommodation to schedules/housing. So there is an avenue to resolve the unwanted “pinch on the derriere” or other intrusions of a sexual nature that women might want to address. They don’t have to go “full frontal” into a formal hearing process with all that entails.
I don’t share the negative view of the ability of a trained tribunal to effectively come to a fair conclusion. Yale’s University Wide Committee is a 30 member panel that is drawn from faculty throughout the schools of the University, postdoctoral associates or fellows, students from the college and graduate schools and managerial or professional employees of the University. That’s quite a diverse group and the 5 member tribunal is drawn from that 30 member pool. The names of the 5 member panel are provided to the parties and if either feels that any member is incapable of fairly judging the matter, they can object. The UWC Chair reviews the objection and if justified they replace that person with another from the UWC pool. The new tribunal member is subject to the same “objection” rule. I too believe that these individuals would be as capable as any jury hearing a sexual assault case.
Also just for clarity, the “independent investigator” under Yale’s policy does not reach conclusions as to whether the circumstances constitute a violation of the University’s policy. They conduct interviews and review relevant documents or other communications between the parties. They also interview witnesses. The investigator’s report to the tribunal describes the facts/circumstances of the matter and addresses the credibility of witnesses.
They may not have the right to have their attorneys cross-examine witnesses, but they sure have a right not to cooperate, and not to give self-incriminating testimony. Maybe they can be fired for that, but it beats going to jail. No one with a significant role in whatever happened should be talking to an outside attorney conducting an internal investigation without the benefit of counsel. Also – these people are not 20.
In a corporate internal investigation, usually the real audience is a regulator or the local U.S. Attorney. Everyone generally understands the incentives going in – it’s in the company’s interest to identify some scapegoats, make an example of them, adopt some “best practices” to make certain it doesn’t happen again, etc. There’s no question, none whatsoever, that from the standpoint of an individual employee the investigators are hostile – they are effectively there to plea-bargain with the government for the good of the corporation. That’s not quite the situation with a college disciplinary adjudication, although in the case of sexual assault with the Department of Education’s civil rights office holding hundreds of Title IX investigations open to some extent it is.
Re judges. Hanna wasn’t arguing that judges have to be rape specialists; she was arguing that they are judging specialists who generally have decades of full-time experience in litigation before they become judges. And, at least around here, rookie judges don’t preside over serious criminal cases if anyone can help it. That won’t be true everywhere, of course. But it’s a very different skill and experience set from that of professors, and a few hours of training doesn’t change anything major. (Of course, from the standpoint of the legal system, getting kicked out of college isn’t a very serious penalty, so maybe it doesn’t need judges who know what they are doing.)
Yale was completely in a no-win situation here, as events have proved. I’m sure people recognized that early on. A serious accusation against a senior athlete, captain of a team in a high-profile sport having its best season in 60+ years? If he were treated leniently, what is the likelihood of that blowing up in the university’s face? Probably the best reason to think the investigator was unbiased is that Yale was screwed whatever the outcome.
In this case, as I understand it, the woman playing the role of the victim didn’t necessarily want to do either. An administrator invoked the formal complaint process. And maybe that’s appropriate if she, but not the woman involved, knew that there was a pattern of prior similar situations – but we don’t know if that’s true or not. I could believe this is an associate dean with an agenda forcing the university’s hand, or I could believe this is a diligent administrator doing exactly what we would want her to do, aggregating information to understand that what to the woman may have been an isolated, private event was not isolated or private, really, at all.
Just for information’s sake, where does it say that Yale hired an experienced criminal lawyer to work as the fact finder? I hadn’t seen that, and Yale’s policy doesn’t indicate this would necessarily be so. I also think that the right to consult an attorney point is empty. The policy says that a student’s “advisor” can not offer evidence or examine witnesses so I am not entirely sure what good having a lawyer does, other than to keep a guilty individual from incriminating himself.
Well, I think what we have seen so far is that if the cases which have been filed to get past the summary dismissal stage, the investigations under taken have been horrendous across the board. Maybe that means that we only see the really bad cases, and maybe that means that the process is flawed. That is really the heart of the argument that many of us are making. There simply are no procedural protections in this system. You are apparently completely at the mercy of the single investigator, who seems to exercise virtually universal control over what material is presented to the panel. Not generally a model many have followed if you are looking for fair and repeatable results.
And speaking from experience, the best way to get repeat business as someone who conducts internal employee investigations is to conduct investigations in such a manner as to keep the EEOC, OSHA, OCR, etc off the company’s back. I doubt very seriously that Yale’s motivation is any different. I mean really, do you think it is merely coincidence that Yale developed this policy while being investigated by the OCR?
1)The single investigator model is inherently unstable, because you are dependent on that individual’s own perceptions of the evidence and impressions of the witnesses.
2)There is no information about how much “training” each of the 30 members of the “Yale community” receive before being asked to sit on the committee and adjudicate these cases.
3)There is no information on how the members of the committee are chosen, so there are obvious questions of selection bias.
4)There are only five days provided to respond to a formal complaint.
5)There is no ability to face your accuser, or cross examine witnesses.
6)Character witnesses are out right excluded from the process, and the accused has no right to have his witnesses heard at all.
7)No abstentions are allowed when deciding whether a violation has occurred, which means that persons who are genuinely unsure are compelled to a vote.
8)The committee can decide to punish the accused for something other than what has been alleged in the complaint.
9)You have two days to object to a panel member hearing your case, but the decision to allow or disallow the objection is wholly discretionary.
10)While the single investigator is not supposed to reach conclusions about the facts at hand, that individual is given the ability to expound on credibility, which is effectively the same thing.
If this is one of the best policies out there, I’d say we are quite far afield from any normal adjudicatory process that I am familiar with.
Who knows if this kid is guilty or not. I’d say he’s probably guilty since he received Yale’s maximum punishment, which common sense tells me is not handed out lightly. My guess is that this was not the first complaint against the kid. But who really knows?
This is the problem with these Title IX tribunals. They are not true courts of law with procedural due process protections in place, and they leave open the argument that somebody got railroaded - or conversely that a victim’s complaints were not taken seriously enough. I suspect error, and unfair results, happen on both sides of the equation. And, where personal resources are not an issue, they lead to further lawsuits by the aggrieved party.
I wish colleges had the option of declining to adjudicate criminal matters. Minor disciplinary matters, sure, but allegations of crime are best left to our criminal courts. Even a college with an immense endowment such as Yale does not have the resources to truly and effectively duplicate our public legal system.
Not in court but, for a school, or a business, or a non profit, I am ok with number 8.
@Ohio in your #46 you are comparing the procedures of a college tribunal to those of the criminal justice system. That comparison simply does not work. Everyone seems to forget in these discussions that the tribunal system decriminalizes sexual assault. That is a huge concession for a victim who is likely very aware that the chances of her case actually finding it’s way to a prosecutor in the criminal justice system is slim to none.
So I guess without the tribunals that would leave her nowhere. Is that ok with you?
Back in ancient times, the bright line was a ring. :)>-
Tribunals can, in theory, do all sorts of things, and often we’re not completely clear on what they are supposed to do. Are they supposed to punish the malefactor? To compensate the victim? To protect others? To resolve a difference of opinion between friends? To establish The Truth? To heal the victim? To restore harmony to the community? (Anyone who has read any of Tony Hillerman’s Leaphorn/Chee mysteries has plumbed ad nauseam Hillerman’s idea of the difference between Anglo and Navaho justice.) None of those things is exactly the same as any of the others.
With criminal sentencing, any civics student knows the difference among the four major theories of criminal punishment: rehabilitation, retribution, general deterrence, and specific deterrence. (Not to mention the fifth – getting the DA and sometimes the judge elected to higher office.) We are not consistent on any of them.
With college sex-crimes tribunals, the basis of what they are doing is practically unexplored. There is fairly universal agreement on a vague objective: making college a safe, comfortable place for women, except we have to say “everybody,” by reducing the risk of sexual assault. But the relationship of what the tribunals are doing and that objective is very, very murky. There seems to be a notion that retribution and general deterrence are important (although general deterrence and confidentiality cannot coexist for long), but lots of times tribunals, administrators, and victims use the language of specific deterrence. And sometimes, especially with offenses deemed minor, rehabilitation seems to be the objective. Compensation and harmony, specific or general, are completely disregarded. A lot of lip service is paid to The Truth, but no one is getting sodium pentothal or anything . . .
As I have said in many other threads, there are a lot of different agendas and odd coalitions in play here, and it pretty much completely mucks up any possibility of consistency and comprehensibility in the way these cases are dealt with.
This is both off topic and on topic.
A lot of these arguments are about fairness and about being treated correctly. We forget that society does not treat people fairly; although treating people fairly is a great goal.
My wife just came home. She works with people with government jobs. The one person she has dealt with who has integrity, the one person was was extremely competent, was just fired. The guy was interested in doing the correct things. He had zero interest in politics. He was above politics. So he was fired because he would not play the political game. This man who was fired is like an angel. He adopts special needs kids.
I am mad.
Society is very imperfect. Society can do better but society is always going to be imperfect. The court system is far from perfect and so are tribunals. As a society, we should strive to make things better. I would expect Yale and other schools to keep tweaking what they do to do better while failing at perfection.
@Ohiodad51 Here’s a link to my source for my statement that Yale uses criminal attorneys as fact finders. . http://www.newsweek.com/yale-basketball-star-expelled-vows-sue-436560
I just read that there are no other investigations from Yale or the New Haven Police into Montague … so what I don’t understand is why are there no criminal charges being investigated if his conduct was found to be sexual assault worthy of expulsion?
This is key. Some people think expulsion isn’t that big of a deal. They think it would be far worse to suffer a criminal trial than simply slip away from campus. Others feel that expulsion is a huge deal - a big financial hit to the family, the potential to be socially classified and sometimes called a rapist despite never being criminally accused of being a rapist and the inability to enroll in an equal educational institution. This guy was 3 months from graduation…where does that leave him and where does that leave his family who made the investment? Probably in court. The college will have needed to dot every i and cross every t and have plenty of evidence that they did the right thing legally with regard for this one to stick. This is why I’m firmly in the camp of legal representation immediately if ever accused. Sounds like this guy’s family is in that camp and we can speculate all we want, but if they file, their side will be public and the college will need to respond.
Their lawyer may have spun some preemptive PR strike but I guarantee that the kernals of his press release are probably true, that they had an existing relationship and that she returned to his bed the night of the alleged assault and indisputable and the basis of what the lawyer said will form where this goes for his side. No doubt there’s an investigation going on behind the scenes, too, especially if the speculation about "other earlier allegations’ is true. There are now enough existing cases that went both ways to formulate this case. Most interesting will be if the woman involved will play a part since it was not her who made the charge…it was a university employee.
@dstark We don’t always give these protections to people in a civil court context. We usually don’t in regulatory proceedings.
1, I think there are some wholly valid reasons why someone who is accused of sexually assaulting someone ought not to be given the right to cross-examine the alleged victim. Heck, even in criminal cases, some limitations are sometimes placed on this right. Elizabeth Smart, for example, didn’t have to look at her rapist during his trial. If I recall correctly, he was kept in a different room where he could hear but not see her and she couldn’t see or hear him. He was shackled to his chair.
Now, personally, I would be willing to have some sort of procedure whereby an accused could submit questions he wanted the alleged victim to answer to the tribunal and have the tribunal ask those questions. But if my D were sexually assaulted, I wouldn’t want the guy who did it a few inches away asking her questions. Plus, even in criminal cases, there are usually limits on the types of questions a victim of a sex crime can be asked. I wouldn’t expect the accused to know those rules. However, I wouldn’t want him to be able to ask the alleged victim about her sexual history.
Look, I agree these are tough cases. However, there is a reason for the confidentiality. As I said above, in Steubenville, the Owen Labrie case, and the Vanderbilt rape case, the names of the victims were leaked. They endured truly horrific harassment and when their names are googled this information will continue to come up.
Maybe this particular case was a kangaroo court. I DON"T KNOW. How many times can I say that? However, I’m not going to assume that it was because his dad and lawyer say so or because the young woman didn’t file a criminal complaint.
The interesting thing about this case is it was not the person who claimed that she was assaulted who started the process according to reports, it was someone she told she was assaulted. If I were a defense lawyer, I’d be peeling that banana.
@jonri, Thanks for the explanation. I appreciate your post.
The public, which includes us, gets very little information about a case.
I listened to Serial about Adnan. I watched Making a Murderer. Then I read the transcripts of the actual trials. Looked at some of the evidence. We were told so little in these shows. I think we were duped but that is ok. 
I find it hard to believe, with Yale kicking out 11 percent of the accused, that the attorney for the athlete’s story is why the athlete got kicked out. There has to be more. If there isn’t more, then Yale’s intellectual essence leaves a lot to be desired. Why would anybody want to go to Yale?
The attorney for the athlete is going to say whatever makes his client look good. Yale can’t respond.
We are not really on a fact finding mission right now