Due process denied: Judge finds against Vassar student accused of sexual assault
To those who knew him, Peter Yu was a shy young man – highly intelligent, athletic and a good student. A Chinese citizen, Yu was accepted to Vassar College in 2011 as a sophomore, having obtained enough Advanced Placement credits at his Connecticut boarding school to skip his freshman year.
Yu, who grew up in Northeastern China, joined the rowing team and excelled, becoming a varsity team member as a sophomore. He met a fellow team member, the daughter of a Vassar professor, and became friends.
In February 2012, during a team party in which both Yu and his fellow team member consumed alcohol, the two engaged in sexual intercourse. Yu lost his virginity that night.
One year later, she would accuse him of sexual assault over the incident.
Between the time of the encounter and the accusation, Yu and his accuser exchanged multiple friendly Facebook messages. One message from the accuser said: "I'm really sorry I led you on last night I should have known better then [sic] to let my self [sic] drink yet, I really don't want this to effect [sic] our team dynamic or friendship. I don't think any less of you at all I had a wonderful time last night I'm just too close to my previous relationship to be in one right now."
Another message, sent two months later, said: "Peter, I wanted to write to you to apologize for that night about two months ago, I have not been trying to avoid you since then." She again apologized d "I care about you and I never ever meafor the evening and said: "I did not treat you very well, it was disrespectful on my part to do what I did because I was drunk." She also stated that she would like to remain friends annt to hurt you and we were both drunk."
The accuser, during the investigation a year later into whether a sexual assault occurred, claimed the messages "did not correctly reflect her feelings" due to her being in a state of "shock and disbelief" about the encounter.
Yu contends that the sex was consensual and that the accuser could have left his dorm room (Yu says she initially tried to call her roommate so they could go to her dorm) when he went to the bathroom.
The accuser says she tried to avoid Yu at the team party, got too drunk to consent and that Yu initiated all of the sexual contact, even forcing her.
During the hearing, two witnesses claimed they saw the accuser drunk the night of the encounter. Yu wanted to call the accuser's roommate as a witness as to whether she missed a call that night, but she did not remember and didn't have the same phone to check her call logs. Yu's roommate, who had walked in on them during the encounter, was not called to testify because in his email to campus investigators he could not provide any evidence other than he walked in on the two and left. He thought maybe Yu was intoxicated but couldn't be sure.
Two and a half weeks after Yu was informed of the accusation against him, and more than a year after the actual event, he was expelled from Vassar. In June 2013, Yu filed a lawsuit against Vassar alleging gender bias and a lack of due process.
On Tuesday, a summary judgment was issued in favor of Vassar. The judge in the case, Ronnie Abrams, was recommended to the federal bench by Sen. Kirsten Gillibrand, D-N.Y., who has no problem labeling young men as rapists without any due process.
Abrams' dismissal of Yu's charges are based on the fact that Title IX does not require adequate due process rights to students accused of sexual assault. Thus, a school following Title IX cannot, in theory, violate a student's due process rights. In the alternative, because Vassar is a private college, due process rights do not apply.
Basically, schools can get away with branding young men as rapists (and avoiding problems from the Obama administration) for what reasonable people would not see as rape because of a flawed law.
Abrams accepted the argument that an accuser who has been drinking cannot give consent. She also noted that the accused's level of intoxication is irrelevant. But what if Yu had filed the complaint,
claiming (as the accuser hinted in her Facebook post) that she had taken advantage of his drunkenness to seduce him. This almost turns the case into a "first to file" argument, even if it is difficult to see how, in today's climate, a man who brought similar charges against a woman would have his case taken seriously.
Also, because the accuser and her witnesses claimed she was drunk that night (without any evidence of how drunk she really was), Yu was deemed less credible because he disagreed with their statements. Jamie Kelly, an assistant professor of philosophy who sat on the panel that expelled Yu, stated that Yu wasn't credible because his claims "didn't cohere with the witness testimony, [the accuser's] account and just didn't seem to fit with everything else in the case." This implies an obvious presumption that the accusation is true — guilty until proven innocent — and that the very act of staging a defense is further evidence of untrustworthiness and guilt.
The case against Yu hinged on the witness testimony and accuser's account. The subsequent Facebook messages between the two were barely weighed because, according to Kelly, the accuser's claim she sent them out of shock was simply accepted at face value.
In multiple instances, Abrams uses what a reasonable person may see as evidence that the decision to expel Yu was wrong as evidence shows that it was right.
For example, Yu cited an email from Vassar President Catharine Hill, which he categorized as having said "that when two students are drunk, only the female is considered incapable of giving consent." Abrams dismissed this email's value as evidence, noting that it actually said, "It is very scary though. Two drunk kids, both out of it. Is it always the male at risk?" The email presumably is referring to male students being at risk of being accused.
Abrams accepted Vassar's assertion that its policy is gender neutral, despite later quoting another Vassar administrator saying that investigators "are specifically trained to look at and exam[ine] the level of intoxication versus incapacitation for the complainant and not the respondent." Since most accusers are women, a policy of not considering the intoxication and the accused's ability to give consent suggests bias.
When Yu provides evidence that "no female at Vassar has ever been charged with sexual misconduct," Abrams adopts the position that this is actually evidence against Yu's claims of bias because it means he also can't prove a woman "would be subject to more lenient sanctions."
And in a footnote to the summary judgment, Abrams uses a Wall Street Journal article submitted by Yu in order to undermine his point. The article quotes Brett Sokolow, director of the Association of Title IX Administrators, saying that in many cases where both parties were drinking, "the accuser has violated the letter of the policy as much as the accused has[:] If both are intoxicated, they both did the same thing to each other … Why should only the male be charged if both students behave in ways defined as prohibited by the policy?"
Sokolow suggests a policy requiring the accuser to be incapacitated, not merely intoxicated and for the accused to reasonably know she was such. Abrams contended that this is the exact policy Vassar employed. Except the evidence appears to suggest the accuser was intoxicated, not incapacitated, since she was able to walk, remember much of the evening and remove her own clothing during the encounter.
So, to Abrams, every piece of evidence Yu submitted was actually evidence against him.
Abrams does note on several occasions that Yu did not employ a "disparate impact theory of liability." He might have been more likely to win had he argued that Vassar's policies, even if they are be gender-neutral in theory, discriminate against men in practice.
It was not Abrams' place to retry Yu, even though a reasonable person would be hard-pressed to see the former athlete with a 3.8 grade point average as the sort of monster that needs to be expelled. But her acceptance that there is no gender bias involved in campus kangaroo courts regarding sexual assault is troublesome and nearly guaranteed Yu would have an impossible task of proving he was treated unfairly.
In a statement to the Washington Examiner, Yu's attorney, Andrew Miltenberg expressed his disagreement with the court case.
"We respectfully, but vehemently disagree with the court's decision, which is deeply flawed on many levels," Miltenberg said. "We will continue our work on behalf of our clients unjustly accused of sexual assault on campus and subjected to campus tribunals in which they are presumptively guilty, deprived of the most basic due process, and victims of gender discrimination."
"Mr. Yu is innocent and has suffered a great deal," he added. "Plain and simple, the court got it wrong, and we are looking forward to our appeal."