On March 31, a Manhattan-based federal court judge dismissed a gender discrimination lawsuit filed against Vassar College by an expelled student more than two years ago. The College expelled Xiaolu “Peter” Yu in March 2013 after finding him responsible for the sexual assault of a fellow student in 2012. Yu and his lawyers maintain that his expulsion violates the College’s Title IX policy regarding gender equity. In the ruling, U.S. District Judge Ronnie Abrams wrote, “[There] may well be a double standard regarding how the school considers the intoxication level of a complainant and a respondent [but] it is not biased in gender.” (Huffington Post, “Judge Dismisses Lawsuit Against Vassar College Filed By Student Expelled For Sexual Assault,” 04.15.15)
According to court filings, the incident occurred in February 2012, after a night of drinking at a bar off-campus and visiting the Mug; prior to the incident, individuals stated that they had seen the two in apparent states of intoxication. (Huffington Post) While the reporting student told College administrators that she had limited memories from the night, Yu states that he was unaware that the student was too intoxicated to give consent. (Huffington Post) The documents also show that the complainant said she had either expressly refused or failed to give verbal consent to have sex with Yu, and that, while her memories of the incident remain only partially intact, she recalls feeling unable to object to what was transpiring. (Washington Post, “Vassar ruling highlights sex-assault reporting questions,” 04.15.15) After exchanging messages in the weeks following about the incident, which included an apology and a promise to defend him against any accusations of sexual impropriety, she filed a report with the College one year later; the student did not file criminal charges against Yu for sexual assault. (Washington Post) The student subsequently stated that the communications between the two after the incident were motivated by denial and a desire to prevent the incident from impacting the interactions they had as members of the same sport on campus, occurring despite her discomfort. (Huffington Post) Yu’s attorneys argued that the communication between the two students indicates that the incident was consensual and that, while both were intoxicated, the student had assented to Yu’s request for sex. (Huffington Post)
According to the College’s “Sexual Misconduct and Interpersonal Violence Policy and Definitions,” a state of incapacitation marks a state in which an individual cannot give consent. The policy states, “Incapacitation includes sexual activity with someone who one should know to be—or based on the circumstances should be reasonably have known to be—mentally or physically incapacitated (by alcohol or other drug use, unconsciousness, or blackout).”
It continues, “The question of incapacitation is determined on a case-by-case basis that will include an analysis of whether the accused knew, or a sober, reasonable person in the position of the accused should have known, that the complainant was incapacitated.” The document goes on to state that, while the consumption of alcohol alone does not sufficiently prove incapacitation, a person becomes incapacitated and thus cannot give consent when they cannot fully grasp the details of a sexual encounter. According to Title IX Coordinator Julian Williams, “If the accused student says, ‘Well I was drunk too,’ it really doesn’t matter. What we use is the reasonable person standard, and under the reasonable person standard, the reasonable person is always sober.”
According to college regulations, when an episode is reported, the College utilizes a special team to investigate the incident so that the information may be used by the panel adjudicating the case. In its decision-making, Vassar’s method for adjudicating sexual assault cases differs significantly from criminal cases.
According to an emailed statement by Sexual Assault and Violence Prevention (SAVP) Coordinator Charlotte Strauss Swanson, “In…campus hearings, the standard of proof is the preponderance of the evidence, which essentially means that it is more likely than not that complaint occurred. This is unlike criminal proceedings, which require proof beyond a reasonable doubt.” College regulations also state, “Vassar College believes in a zero tolerance policy for gender-based sexual misconduct.”
According to The Washington Post, Yu’s attorneys argued that the panel’s decision was biased due to the fact that it only considered the incapacitation level of the female complainant and not that of Yu. The newspaper also reported that his lawyers stated that by only factoring in her intoxication level and favoring claims made by the complainant, the College’s decision violated its Title IX regulations against gender equity.
Judge Abrams rejected the validity of Yu’s claims of gender discrimination, although she questioned another potential imbalance within the College’s policy. The judge noted that Vassar’s sexual assault and reporting policies are written using gender-neutral terms, that the College provides ample education to students that they may report an incident against students of any gender and that alcohol consumption by the accused parties is not considered regardless of gender, as indicators that the College’s regulations were not biased against male students. (Huffington Post) While the decision did note the potential double standard of deeming a reporting student unable to make reasonable decisions while intoxicated not doing the same for an accused student, the judge noted that this had no relation to gender bias. (Huffington Post)
In the aftermath of the decision, those working on issues related to sexual assault and Title IX at the College have supported the court’s decision. Strauss Swanson agreed with Judge Abrams with regards to unbiased access to collegiate resources. She explained, “In regards to support services, all parties involved in investigations have access to campus resources, including professional counselors, academic deans, and health services, to name a few, and in my experience are treated fairly throughout investigations.”
Williams explained, “Mr. Yu utilized his legal right to challenge the College’s decision and the College’s policy and I’m very glad that it was upheld…I’m very pleased and was very satisfied with the outcome that it withstood the high degree of legal scrutiny because one of the things we try to situate our policies around is not only just legal compliance—which is extremely important—but also what is just the right thing to do for students?”
He continued,“I would disagree with any categorization of Vassar’s policy being somehow stacked against men or stacked against anyone.”
While the College maintains that its policies are not biased against men, it does note a difference in sexual assault figures based on gender. Williams explained, “Most of the reporting students are women and most of the responding students, or the accused students, are men. That’s just the facts of how these issues play out…I can understand why sometimes that argument is made, but when you dig deeper, what you’d find on our campus and probably most campuses is an equitable and fair policy that is trying to make a reasoned and very sound decision based on the procedures in place.”
Williams also noted his belief that this decision may serve as a positive precedent with regards to sexual assault policies like that used at Vassar. “It’s one of the first lawsuits by a responding student to be resolved in this way and I think it might be a template for additional legal guidance…I think it’s a good step forward, not just for Vassar, but, I think, for all colleges and universities that are trying to do there best to protect students, to have some policies and mechanisms, and fair policies,” he said.
This case, as well as its decision, has garnered serious attention both from the College and the mainstream media, becoming one of dozens of collegiate sexual assault adjudications questioned in courts across the country. The Washington Post reports that currently, over 50 cases are pending on the topic of collegiate adjudications of sexual assault nationwide. CEO of the National Center for Higher Education Risk Management Brett Sokolow stated, “In a way, I feel bad for the Peter Yus of the world.” (Huffington Post) Other media outlets such as The Observer, Safe Services and A Voice for Male Students have questioned Vassar’s adjudication of this case and supported claims of gender bias.
When asked about criticisms made in the media regarding the case and the College’s policy, Strauss Swanson noted the degree of inattentiveness to issues of reporting for students. She explained, “In my work with students, I would not say that survivors always feel they are believed. In fact, in many colleges and universities it is too common for survivors to face victim blaming attitudes and retaliation amongst their peers.”
On the collegiate level, Williams stated that the media scrutiny helped enrich campus discussions related to the issue of sexual assault and its adjudication. He said, “I don’t think that the lawsuit made us specifically say ‘We have to fix this’ or ‘We have to change this.’ What it did make us look at, as we were looking at already, is how can we do this better? How can we make this process, our policy, stronger, make them more equitable, more fair for students on either side?”
The decision also comes after serious criticisms of the College’s treatment of sexual assault survivors and its policies which came to a head last semester. Alterations to the College’s attitudes and policies was one of several issues relating to racial profiling and mental health provisions raised at a rally attended by hundreds of students and College employees on December 5. (The Miscellany News, “Hundreds surround, occupy Main to demand administrative changes,” 12.06.14) During the rally, Sara Cooley ’15 stated, “It’s time that Vassar started giving a shit about survivors on this campus…It’s time Vassar College proves that it cares about survivors not just as statistics, but as actual individuals.” While criticisms of the College’s policies remain, since the rally and the release of the Margolis Healy report for methods of improving campus safety, the College has hired a new SAVP coordinator and states that a new committee called Safety and Security Advisory Committee (SSAC) has been formed to better educate the campus on issues of sexual assault and violence.
After Judge Abram’s decision, Yu’s attorneys reported that Yu intends to appeal the decision, arguing that her note of the potential double standard should have translated into a different decision. No date has been set for this appeal.