Summary of Yale’s UWC Process, Prevention & Training, & Confidentiality Policy

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Background

In 2011, Yale created the University-Wide Committee on Sexual Misconduct (UWC),
composed of faculty, staff, and students from across the University, and the UWC
heard its first formal case more than four years ago.

The UWC’s procedures were based on recommendations and guidance from the Yale
Women Faculty Forum, two committees appointed by the Provost, the Marshall
Report, and the Department of Education’s Office for Civil Rights.

The UWC’s procedures have been revised every year to take into account lessons
learned over the preceding year.

In 2015, the UWC procedures were reviewed by a faculty committee led by a Yale
Law School Professor, and the committee recommended minor changes.

Key Elements of Formal UWC Hearings

Throughout the process, each party is permitted to have an advisor, who may be an
attorney. If a party cannot identify an advisor on his or her own, the UWC will
provide a trained adviser.

The UWC Secretary recommends to the parties that they and their advisers meet with
her so that she can provide a detailed explanation of the process, and the parties agree
to meet with her in almost every case.

Facts are gathered by a trained, impartial fact-finder – usually a lawyer – who
interviews the parties and witnesses (including witnesses suggested by the parties),
and reviews relevant evidence, including, for example, text messages and electronic
building access records. The fact-finder provides a detailed report to the UWC
hearing panel and the parties.

A panel of five trained members of the UWC hears the case. Each party is allowed to
make an initial statement, and then is interviewed by the panel. During the hearing,
each party has real-time audio access to the testimony of the other party and may
submit questions for the panel to ask the other party.

The panel determines by majority vote whether it is more likely than not that Yale’s
sexual misconduct policy was violated. If they conclude that there was a violation,
they recommend a penalty. The penalty can take into account previous formal
discipline imposed on the accused student. The panel provides a written report of its
findings and conclusions to the parties and the decision maker, who, in the case of
Yale College students, is the Dean of Yale College.

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The dean decides the case and imposes a penalty. Students can appeal the dean’s
decision to the Provost.

From the fall of 2011 through the end of 2015, the UWC heard 64 formal cases
involving student and faculty respondents. Twenty percent ended with no finding
against the respondent; 19% ended with a reprimand; 19% ended with probation; 31%
ended with suspensions of varying lengths; and 11% ended in expulsion. Some of the
factors considered in imposing expulsion are the severity of the behavior, repetition of
the behavior, the damage caused to the complainant, previous formal discipline, and
precedent in prior cases of sexual misconduct.

Important Points Related to Criticism of Sexual Misconduct Procedures

One of the most controversial elements of university sexual misconduct procedures
throughout the U.S. is the “preponderance of the evidence” standard. This standard is
lower than the “clear and convincing evidence” standard previously used by many
universities and far lower than the “beyond a reasonable doubt” standard used in
criminal trials. OCR has made it clear that failure to use the preponderance of the
evidence standard is a violation of Title IX.

Another frequent criticism is that these cases belong in the criminal courts. Whether
that is true or not, OCR requires universities to offer students an internal adjudication
process. This requirement, along with the preponderance of the evidence standard,
was intended to ensure that universities could not avoid their obligation to hear and
decide difficult cases.

In many cases, there are only two witnesses to sexual misconduct – the parties. That
means that the UWC must make judgments regarding credibility, which many critics
find objectionable. In making credibility determinations, UWC panel members weigh
many factors, including contemporaneous statements, the consistency or
inconsistency of statements and behavior, and truthfulness regarding secondary
issues. Credibility determinations are difficult, but they cannot be avoided, and they
must be made according to the preponderance of the evidence standard.

Outreach and Training

The University has made enormous efforts to explain its sexual misconduct policies
to all members of the Yale community, particularly Yale College students.

As freshman, students in the class of 2016 attended workshops on the “Myth of
Miscommunication” presented by undergraduate Communication and Consent
Educators and a workshop on “Health and Sexuality” presented by undergraduate
Community Health Educators.

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As sophomores, students in the class of 2016 attended small group discussions on
bystander intervention presented by undergraduate Communication and Consent
Educators.

Athletes in the class of 2016 attended an additional presentation and discussion about
sexual misconduct.

In the fall of 2013, a set of sexual encounter scenarios were posted on the Yale
website and heavily publicized. The scenarios list the types of punishment, including
expulsion, that might be expected to result from each encounter.

In August 2014, the University posted and publicized an updated set of sexual
misconduct definitions, including specific guidance regarding sexual consent.

Respondents who are required by the UWC to undergo additional sexual misconduct
training attend three 45-minute, one-on-one sessions with a counselor that cover
topics such as gender dynamics, consent, anger and aggression management, sexual
pressure, the role of alcohol, and understanding the impact of sexual misconduct on
the other party.

Since January of 2012, the University has reported to the community semi-annually,
in both statistical and descriptive form, the cases of sexual misconduct that have come
to its attention and how those cases have been addressed.

Confidentiality

Yale expects all participants in UWC proceedings to maintain the confidentiality of
the proceedings and any information obtained for the proceedings. Yale strictly
forbids the disclosure of documents prepared by, prepared for, or received from the
UWC as part of a formal hearing.

The purpose of Yale’s confidentiality expectations and requirements is fourfold: First
and foremost, the University has an obligation to protect the privacy of students
regarding highly sensitive matters. Second, confidentiality is essential to ensure that
the process is free from undue influence. Third, if parties or witnesses fear that their
participation or testimony in a UWC proceeding could be revealed, then concerns
about reputation, social tension, or retaliation may cause them to keep silent. Fourth,
in many cases, Yale’s legal obligations under the Family Educational Rights and
Privacy Act prevent University officials from disclosing information related to UWC
cases.

While maintaining confidentiality of specific cases, the University does seek to
provide as much transparency into its proceedings as possible through the publication
of the semi-annual reports.

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