I‘ve avoided commenting on the Jack Montague situation at Yale because there aren’t enough details right now to determine what happened. Many on the campus have rushed to condemn Montague, the former men’s basketball captain, as a “rapist.” Others have compared the situation to that of the men’s Duke lacrosse team in 2006 or the Rolling Stone gang-rape hoax of 2014.
I think it’s too early to tell at this point. I certainly don’t believe this has the makings of Duke or the University of Virginia (the school at the center of the Rolling Stone article) for the simple fact that in those two cases, the alleged rape didn’t occur because no sex occurred. At U.Va., the alleged rapists didn’t even exist.
At Yale, Jack Montague’s lawyers have acknowledged that he did have sex with his accuser – on four occasions – but that it was consensual. He could be telling the truth, or the accuser could be telling the truth, we just don’t know right now.
The school can’t say anything because of federal privacy laws, the accuser isn’t telling her side of the story, and Montague hasn’t officially sued the university and told his side, though a lawsuit is coming, we’re told.
Montague’s lawyer says there is no disputing that the two students had consensual sex three times before the disputed encounter. Actually, on one of those consensual encounters, the accuser seems to have initiated oral sex by waking Montague up during the night, something that is considered rape under campus affirmative consent rules.
On the fourth occasion, Montague and the accuser had sexual intercourse and then parted ways. His accuser later asked him to meet up again and returned to his room to spend the rest of the night in his dorm bed with him. This encounter occurred in the fall of 2014. One year later, she would tell a campus Title IX administrator that the sex was not consensual.
Montague’s lawyer says it was a Title IX official who filed the formal complaint against Montague, not the accuser.
Yale has said that it expels only a small number of students accused of sexual assault. Montague’s pseudo trial and expulsion was not known to his teammates until he disappeared from the team.
It wasn’t until Montague’s father told the New Haven Register that his son was expelled that the team and school learned the reason for his recent missed practices. It wasn’t until the Yale Women’s Center posted a statement that “speculate[d]” that the expulsion was for sexual misconduct that the school learned what happened for sure.
And that’s where the free speech issues come in. Montague’s teammates held a kind of protest of his expulsion by wearing T-shirts with his nickname on them and “Yale” printed backwards. Activists on campus went ballistic, claiming the team was “supporting a rapist.” The team eventually apologized in a statement that might as well have been written by the activists themselves.
The team had every right to stand by its captain and insist that he’s innocent. They have as much evidence of that as the activists have that he’s guilty.
Also, the activists’ labeling of Montague as a “rapist” shows the extreme circumstances accused students face in campus conduct hearings. The reason schools need this separate judicial system, activists say, is that the actual judicial system is failing accusers. The reason the school doesn’t need to provide due process, we’re told by activists, is that the students aren’t facing jail.
But they are facing the criminal label “rapist” without any due process. The sex may very well have been consensual, but activists, without knowing any of the facts, have labeled him a criminal. It should be noted that as of now, neither the New Haven nor the Yale police departments are investigating Montague. Neither were even informed of an alleged rape.
That leaves us with an entirely academic process, and as K.C. Johnson (who co-wrote the book on the Duke Lacrosse hoax) has pointed out, Yale’s process is far from definitive.
That means that Yale students want to use free speech to call someone a “rapist” who has not been investigated or charged with a crime, but want to deny free speech to anyone who would suggest he is innocent. The activists say they want free speech but with “sensitivity.” Fine, then they need to apply that same “sensitivity” when calling someone a “rapist” when they are not a criminal.
These same activists also claim that Montague’s lawyer’s statement was “destructive” because he said the accuser voluntarily returned to Montague’s room after an alleged assault, which they say “defies logic and common sense.”
Activists say that “The way that a person reacts to being assaulted doesn’t have to follow a formula, it doesn’t have to be logical.”
This is one of those statements currently being used to suggest that no one lies about being sexually assaulted, when college campuses are ripe for false accusations because there are no consequences for lying. The accuser was not financially or otherwise dependent on Montague. Equating casual college hookups with domestic abuse situations is where the real harm occurs, as it creates victims where there are none.
Montague’s lawsuit should shed some light on the situation. Perhaps he has text messages from his accuser after the fourth encounter saying she had a great time and wanted to come back. Perhaps he doesn’t. Activists will claim that doesn’t matter. But it does.
Labeling someone a “rapist” is a serious charge, and shouldn’t be done without evidence or due process.
Ashe Schow is a commentary writer for the Washington Examiner.
