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If you seek justice for victims of sexual assault, then you have to support a system of justice that is, at its heart, just. It must be based not on expediency or its ability to easily deliver a pound of flesh, but one that protects both the accuser and the accused.
This isn’t just some high-minded concept; it’s pragmatic. Anything less struggles to stand up to time and protest, losing its credibility, leaving verdicts debased and disbelieved and causing harm to the victim. Soon enough there is no system at all for future complainants.
The Yale University basketball team will appear in the NCAA tournament on Thursday for the first time since 1962. It will do so without its captain, Jack Montague, who was expelled on Feb. 10 after a disciplinary panel determined he had unconsented sex with a fellow student.
On Monday, Montague fought back with a public-relations offensive, issuing a statement from his lawyer detailing some of the facts of the case. It was designed to call into question the actions of the woman and the system that found him guilty. He also vowed to sue the university.
It is a reminder why colleges and universities should work to change federal government and get out of the business of trying to handle complex cases involving what is otherwise criminal conduct, such as sexual assault. No matter how noble the goal, they aren’t equipped for it.
If a murder occurred on campus, would anyone think a panel of provosts and deans should handle it in abridged fashion?
Is Montague guilty? Is Montague innocent? I have no idea. I am not arguing either thing and couldn’t at this point, although many others are convinced one way or the other. This is especially on the Yale campus, which descended into division – players backed their old teammate with T-shirts while protestors posted flyers denouncing them for supporting a “rape culture.” Tensions are high. At this point, the team is just trying to make the most of its tournament game against Baylor.
“This has been going on the better part of a month, five or six weeks,” coach James Jones said. “We feel like we’re doing a good job. We’re trying to focus on playing a basketball game.”
Due to the private nature of the procedures, only limited facts have been made public, all via Montague’s lawyer, Max Price. Who knows what he didn’t include?
The problem is: he didn’t need to tell everything on Monday. Because of the system’s inherent deficiencies, Price was able to piggyback off the media attention for the NCAA tournament to turn Montague into a martyr for the wrongly convicted and attack campus political correctness while leaving the woman to deal with stories that suggest she was dishonest. For Montague, it was a smart play.
To rebut this requires the woman to step forward publicly or hire her own counsel, just the kind of acts that can cause a chilling effect for future reporting. This should outrage fair-minded people, especially at Yale. Not that Montague defended himself, that’s his right and he may be right. It’s that the system is so bad, his “conviction” is still open to debate. It all but forced him to take this course of action.
It’s a mess. And it’s a mess Yale, and federal law, created.
And it’s a mess lots of schools are dealing with nationally. In 2015, 124 were under investigation by the Department of Education’s Office for Civil Rights over how they investigated sexual assaults involving students. Basketball is shining the spotlight on Yale now, but there are 23 schools in the NCAA tournament – more than one-third of the entire field – dealing with Department of Education Title IX investigations. Kansas. North Carolina. SUNY-Buffalo. Hawaii. Iowa. It’s everywhere.
While the knee-jerk reaction is to say college administrators are incompetent or uncaring, the problem is this is widespread and it's overdue to consider whether this is something schools should be attempting.
Running pre-emptive educational programs, creating a positive work and living environment, maintaining a hard line on safety, separating, as best possible, the accuser and accused after an incident? Absolutely.
Playing Law and Order? No.
Only two people know for certain what happened the night in question in 2014: Montague and the woman. It's possible, or even likely, each maintains honest but conflicting versions.
That’s why these cases are so challenging, even for professionals across the legal system who possess years of training, experience and broad investigative powers. Even then, they work within a construct of checks, balances, appeals, statues of limitations, scientific testing and rationale judicial hearings to flush out the closest version of the truth possible.
Sexual assault cases requiring precise and patient investigating, not to mention months of preliminary and evidentiary hearings even before they arrive in front of a jury.
If this is a test for cops and courts, then a college panel, no matter how well intended, working on a rocket-fast timetable is a terribly inadequate way to protect all parties, not to mention the truth.
There’s a reason the term “proper authorities” exists.
In this case, there was never an investigation by the proper authorities. The woman never contacted the police and accused Montague of sexual assault. As such, police collected no evidence at the time. No rape kit was performed. No statements were recorded nor interviews performed by law enforcement. Seasoned detectives and district attorneys never analyzed the case and made a decision on whether to proceed.
It doesn’t mean it didn’t happen. It just limits the available information to determine what did.
What came next almost defies belief.
A year later a complaint was filed, starting a process as spelled out in the Yale Code of Conduct. An independent attorney is hired as an “impartial fact-finder.” That person interviews both parties and tries to gather “any pertinent documents and interview any relevant witnesses.” The fact-finder has a brief 21 days to complete the work.
The attorney’s findings are then given to a five-person panel. Within five days a hearing is held. That’s the extent of “trial prep.”
Neither party can question the fact-finder directly for clarity or confusion. Written responses to the fact-finder's report aren't allowed. Additional documents or evidence in response to the fact-finder's report aren't allowed. In this case, the “cop” is all-powerful.
There is no right to discovery. There is no right to know of exculpatory evidence. There is no statute of limitations. There is no right for the defendant to confront his or her accuser. The “complainant and the respondent” do not appear together.
Each side can speak for just 10 minutes. Neither is allowed to call any witnesses – only the panel can do that and if it does, only the panel can ask them questions.
After that, the five-person panel determines guilt on a mere “preponderance of the evidence” something akin to a civil trial. Essentially, you are 50.1 percent sure something happened. The charge involved, sexual assault, is generally a criminal act, which requires a far higher standard of “beyond a reasonable doubt.”
While this wasn’t a criminal case with a prison term hanging in the balance, it's extremely high stakes for Montague. He faced not just expulsion during the second semester of his senior year, but as a basketball captain, the inevitable publicity about a sexual assault that would likely haunt his reputation forever.
The panel votes via secret ballot. Majority wins. No explanation is required.
This, perhaps, is a good, quick way for a university to decipher cases of plagiarism or which freshman owned the six-pack of beer in a dorm refrigerator. For something as significant and often nuanced as a sexual assault case, it’s mind-numbing. Rape is rarely about some creep hiding in the bushes. Witnesses are uncommon. Figuring out the truth is complicated.
Stopping this crime is too important to be handled this way.
It’s not just Montague who was at risk with such a system. It was the woman. She was led into a trap where Montague was inevitably going to fight back in the court of public opinion because the charge is so explosive he had to defend his reputation.
That day came Monday and it caused a big stir, mainly because of what Price, the lawyer, says the independent fact-finder discovered in the investigation:
“The two students developed a relationship that led to them sleeping together in Jack’s room on four occasions in the fall of 2014.
• On the first occasion, the woman joined Jack in bed and stayed the night.
• On the second occasion, she entered his bed voluntarily, removed all of her clothes and, during the night, woke him to perform oral sex.
• On the third occasion, she joined him in bed, voluntarily took off all her clothing, and they had sexual intercourse by consent.
• On the fourth occasion, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him.
"The sole dispute is as to the sexual intercourse in the fourth episode. She stated that she did not consent to it. He said that she did.”
Are these undisputed facts in the case? There’s no way of knowing right now because unlike the judicial system, nothing else is public. This is one side’s story. It may all be true. It may not. It has received all the publicity this week though.
It’s worth remembering the panel made up of administrators not only found against Montague, but also hit him with its harshest sanction, expulsion, which occurs in just 10 percent of cases according to Yale. There is almost certainly more to know. None of it has been put out though, so none of it helps the woman right now.
In this case the system either failed Montague originally with an undue expulsion or it is currently failing the woman who is open to post-verdict attack because the system is so poorly conceived.
Either way, everyone lost. Even far from New Haven.
False allegations of rape are rare, falling in single-digit percentages, according to the FBI. Nothing is more damaging to future sexual assault cases than the public believing they are common. There’s a reason so few assaults are reported at all. Yet here is another high-profile campus incident where it is being suggested, without rebuttal, because of a campus judicial system trying to comply with federal law.
The system makes this disaster predictable. Montague is neither the first nor the last. He’s just the latest, even when it comes to college basketball.
Last year’s NCAA tournament featured Maryland star Dez Wells, who in 2012 was expelled from Xavier after he was accused of sexual assaulting a female student. Wells denied it. The local prosecutor investigated the case and not only declined to charge Wells but declared the allegation "didn't reach anything close to a standard of proof" and "should never have gotten to the point where someone's reputation is ruined." A grand jury also refused to indict.
Xavier had its own hearing though and expelled Wells. He transferred to Maryland and filed a federal suit against his old school, arguing the failures of the process.
In 2014, Xavier settled. Its campus judicial system wasn’t worthy of defending in an actual court.
You could say Wells won and Xavier lost, but the person who suffered the most may have been the next woman at Xavier who wanted to turn to that same system and found it weakened by bad publicity and doubted by others on campus.
Or it’s the next woman at Yale. Or it’s the next woman anywhere else.
It shouldn’t just be Montague’s teammates crying foul here. Those dedicated to supporting the victims of sexual assault should be demanding better systems of justice. Hyper-focusing on convicting a basketball captain like he’s a trophy is missing the big picture.
Having colleges pretend they can handle this stuff like they are police and prosecutors, and thus operating an unfair process even if it generates easy convictions isn’t, in the long run, advancing the admirable and ultimate goal of women’s safety.
It’s undermining it.
- Crime & Justice
- Society & Culture
- sexual assault
- Yale University
