Sexual Assault on Campus ©2010 Center for Public Integrity 2

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THE CENTER FOR PUBLIC INTEGRITY Investigative Journalism in the Public Interest

Table of Contents

4 About the Sexual Assault Project 5 About the Survey 6 About The Center for Public Integrity 7 A Litany of Barriers… A Culture of Secrecy Sexual Assault Victims Being Re-Victimized on Campuses 9 Key Findings and Understanding the Law 1 1 Title IX of the Education Amendments of 1972 11 The Family Educational Rights and Privacy Act (FERPA) 12 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) 4 1 Sexual Assault on Campus Shrouded in Secrecy High Rates of Rape, Closed Hearings, and Confusing Laws 1 3 Barriers Curb Reporting on Campus Sexual Assault Lack of Response Discourages Victims of Rape, Other Crimes 6 4 Campus Sexual Assault Statistics Don’t Add Up Troubling Discrepancies in Clery Act Numbers 55 A Lack of Consequences for Sexual Assault Students Found “Responsible” Face Modest Penalties, while Victims are Traumatized 68 An Uncommon Outcome at Holy Cross

Go online for more about sexual assaults on campus including video interviews, audio clips, supporting documents and related stories at: http://www.publicintegrity.org/investigations/campus_assault

Table of Contents

3 7 Lax Enforcement of Title IX In Sexual Assault Cases Feeble Watchdog Leaves Students at Risk, Critics Say 5 8 ‘Undetected Rapists’ on Campus: A Troubling Plague of Repeat Offenders A Chilling Case at a Friendly School — Sexual Assault at Texas A&M 7 9 reporter’s Notebook 9 9 Clery Act Basics 100 Getting Started 102 Investigating Complaints 103 Resource Directory

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3Cover CONTENTS ABOUT the PROJECT4 Sexual Assault on Campus ©2010 Center for Public Integrity 4 The Team About the Project Eitoald ri Starting in February 2009, the Center for Public Gordon Witkin, managing editor Integrity fielded a team of reporters to lift the curtain David Donald, data editor on how colleges and universities respond to reports Reporting of sexual assault. Kristen Lombardi, Kristin Jones, staff writers Reporters Kristen Lombardi and Kristin Jones Laura Dattaro, Claritza began by surveying crisis services programs and Jimenez, Laura Cheek, reporting fellows clinics on or near college campuses across the country; 152 of these facilities completed the Fact Checking Peter Newbatt Smith, survey. The Center’s team then interviewed nearly research editor 50 current and former college students who say Web they were raped or sexually assaulted by other Cole Goins, web project students and, in some cases, professors. The manager Andrew Green, web editor journalists also interviewed students accused of Erik Lincoln, deputy web sexual assault, as well as dozens of student affairs editor; multimedia administrators, judicial hearing officers, victim Tuan Le, IT manager/ web developer advocates, sexual assault scholars, and lawyers. Top Dead Center Design, website design Three federal laws that govern the way colleges and universities respond to sexual assault Media Jeanne Brooks, outreach complaints became a topic of intense focus: Title coordinator IX, the Clery Act, and the Family Educational Rights Steve Carpinelli, media relations manager and Privacy Act, or FERPA. Through a Freedom Rachel Hamrick, {new} of Information Act request, the Center compiled partners a database of 10 years’ worth of complaints filed DIGITAL NEWSBOOK with the U.S. Department of Education against Aaron Mehta, coordinator RJI, newsbook production colleges and universities for allegedly violating www.rjionline.org Title IX, which bans sex discrimination in federally Additional Thanks funded education. The Center culled documents Bill Buzenberg, David from lawsuits filed against schools for alleged E. Kaplan, Bridget Gallagher, M.B. Pell, Josh Title IX violations, and built a second database of Israel, Caroline Jarboe, complaints filed with the Education Department Ellen McPeake, Regina Russell, Francesca Craig, against schools for allegedly violating the Clery Act, Eva Starrak which requires that schools provide key rights to

victims, and that they collect and retain statistics of crimes occurring on or near their campuses. FERPA, which protects the privacy of student education records, complicated reporting of these stories. As a practical matter, the law required that the Center obtain disclosure or privacy waivers from students in order to conduct interviews with school administrators about their cases or file successful Freedom of Information Act requests to gain access to documents related to those cases. The Campus Assault project is generously supported by grants from the Dart Society, the John S. and James L. Knight Foundation, and the NoVo Foundation. Support for this and other Center for Public Integrity projects is provided by the Carnegie Corporation of New York, the Ford Foundation, Greenlight Capital LLC Employees, the John D. and Catherine T. MacArthur Foundation, the Open Society Institute, the Park Foundation, the Rockefeller Brothers Fund, and many other generous institutional and individual donors. About the Survey The Center for Public Integrity conducted a survey of on-campus and off- campus crisis clinics and programs that service students, faculty, and staff at four-year public universities. The Center took a stratified random sample of those clinics and programs so that universities in all regions of the United States were represented. The Center received responses from August 2008 through April 2009, and conducted follow-up interviews of survey respondents from May 2009 to July 2009. Of the 260 clinics and programs in the sample, 152 completed the survey for a 58 percent response rate. Respondents were asked, among many questions, how many student sexual assault cases they serviced in the past year. To compare their answers to official numbers, the Center analyzed Education Department university crime data, which campuses are required to report under the Clery Act. The Center acquired its copy of the data from the National Institute for Computer-Assisted Reporting. For the analysis, the Center computed a five-year average of sexual assaults for universities whose on-campus and nearby off-campus clinics and

programs responded to the survey. The years 2002-2006 were used as these represented the most recent final numbers. Universities can change their initial reports as they learn more about crime on their campuses, meaning the 2007-2008 numbers were still subject to change when the analysis was done. A five-year average was used to smooth out any years with exceptionally high or low incidents. Finally, those averages were compared to the most recent numbers reported by the clinics and programs that service those campuses. About the Center The Center for Public Integrity is a nonprofit, nonpartisan, and independent digital news organization specializing in original investigative journalism and research on significant public policy issues. Since 1990, the Washington, D.C.-based Center has released more than 475 investigative reports and 17 books to provide greater transparency and accountability for government and other institutions. It has received the prestigious George Polk Award and more than 32 other national journalism awards and 18 finalist nominations from national organizations, including PEN USA, Investigative Reporters and Editors, Society of Environmental Journalists, Overseas Press Club, and National Press Foundation.

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3Cover SHOW CONTENTS COMMENTARY4 Sexual Assault on Campus ©2010 Center for Public Integrity 7 A Litany of Barriers… A Culture of Secrecy Sexuals as ault victims being re-victimized on campuses across the country Commentary by Bill Buzenberg Executive Director of the Center for Public Integrity

unde r ds study, though colleg- of thousands es themselves tend Hof American not to make such sta- teenagers enter col- tistics clear to all. lege every year and Over the course soon find themselves of a year-long inves- jumping head first tigation, the Center into a world of class- for Public Integrity es, friends, extracur- found that students ricular clubs and ac- who have been the tivities, and a host of victim of sexual as- other lifestyle chang- saults on campus face es that come with liv- a depressing litany of ing far from home. barriers that often as- While college can sure their silence and be a stressful time leave their alleged for all students, it assailants largely un- can quickly morph punished. into a nightmare for those students The majority of students who are who become victims of sexual as- sexually assaulted on campus re- sault. One out of five female stu- main silent. According to another dents can expect to be assaulted, national study, 95 percent of victims according to a Justice Department do not end up reporting the incident

to the police. Many victims do not and are a telling sign of schools’ report because they blame them- priorities. By silencing victims and selves, sometimes because drugs or turning judicial hearings into some- alcohol was involved, or they do not thing like kangaroo courts, colleges identify what happened as sexual prioritize their own reputations over assault. Friends frequently do not victims’ safety and support and turn know how to respond, and colleges their campuses into hostile environ- do not bother to ments for victims of sexual assault. Rather than teach them. The Center for Public Integri- guidance Institutional ob- ty’s study demonstrates how these and support, stacles only serve trends affect real women: nearly these victims to compound the fifty percent of the students we in- encounter problem. terviewed claimed that they unsuc- Victims who cessfully sought criminal charges, closed-door find the courage and instead had to seek justice in meetings and to pursue justice closed, school-run proceedings that stern words and closure via led to either light penalties or no about never university judi- punishment at all for their alleged telling anyone. cial proceedings assailants. Nearly a third said that must maneuver administrators discouraged them through a system shrouded in secre- from pursuing rape complaints. cy where they encounter mysterious Eleven students reported experienc- disciplinary proceedings, closed- ing extreme confidentiality edicts, mouthed school administrations, sometimes followed by threats of and off-the-record negotiations. punishment if they were to disclose Rather than guidance and support, any information about their case. these victims encounter closed-door The stories of these students meetings and stern words about make this much clear: as if being a never telling anyone. Through ev- victim of sexual assault isn’t diffi- ery step of the process, victims are cult enough, it becomes even more faced with a litany of barriers that traumatic when survivors’ schools put justice even further out of reach. become barriers to justice. Unfor- Victims’ advocates say that these tunately, these judicial proceedings institutional barriers have become often do little more than re-victim- the norm at universities nationwide, ize an already vulnerable student. n

3ABOUT CPI SHOW CONTENTS KEY FINDINGS4 Sexual Assault on Campus ©2010 Center for Public Integrity 9 Key Findings T he Center’s investigation found that existing processes have little transparency or accountability

athryn Russell said judicial system are a thoughtful and it happened in her on-cam- effective way to hold abusive stu- Kpus apartment. For Megan dents accountable, but the Center’s Wright, the venue was a residence investigation has discovered that hall. According to a report funded by “responsible” findings rarely lead to the Department of Justice, roughly tough punishment like expulsion— one in five women who attend col- even in cases involving alleged re- lege will become the victim of a rape peat offenders. or an attempted rape by the time she Research shows that repeat of- graduates. But official data from the fenders actually account for a sig- schools themselves doesn’t begin to nificant number of sexual assaults reflect the scope of the problem. And on campus, contrary to what those student victims face a depressing who adjudicate these cases on col- litany of barriers that often either as- lege campuses believe. Experts say sure their silence or leave them feel- authorities are often slow to realize ing victimized a second time, accord- they have such “undetected rapists” ing to a 12-month investigation by the in their midst. Center for Public Integrity. Critics question whether faculty, The probe reveals that students staff, and students should even ad- found “responsible” for alleged sex- judicate what amounts to a felony ual assaults on campuses often face crime. But these internal campus little or no punishment, while their proceedings grow from two feder- victims’ lives are frequently turned al laws, known as Title IX and the upside down. Many times, victims Clery Act, which require schools to drop out of school, while students respond to claims of sexual assault found culpable go on to graduate. on campus and to offer key rights to Administrators believe the sanc- victims. tions administered by the college The Education Department en-

forces both laws, yet its Office for plinary proceedings, closed-mouth Civil Rights rarely investigates alle- school administrations, and off- gations of botched school proceed- the-record negotiations. At times, ings by students, largely because school policies and practices can students don’t realize they have a lead students to drop complaints, right to complain. When cases do go or submit to gag orders—a practice forward, the civil rights office rarely deemed illegal by the Education De- rules against schools, the Center’s partment. Administrators believe probe has found, and virtually never the existing processes provide a issues sanctions fair and effective way to deal with Institutional against institu- ultra-sensitive allegations, but the barriers tions. Center’s investigation has found that compound the Many student these processes have little transpar- problem of victims don’t re- ency or accountability. silence, and port incidents The Center interviewed 50 ex- at all, because perts familiar with the college dis- few actually they blame them- ciplinary process—student affairs make it to selves, or don’t administrators, conduct hearing a campus identify what officers, assault services directors, hearing. happened as sex- and victim advocates. The inquiry ual assault. Local included a review of records in se- criminal justice authorities regularly lect cases, and examinations of 10 shy away from such cases, because years’ worth of complaints filed they are “he said, she said” disputes against institutions with the Educa- sometimes clouded by drugs or alco- tion Department under Title IX and hol. That frequently leaves students the Clery Act, as well as a survey to deal with campus judiciary proof 152 crisis services programs and cesses so shrouded in secrecy that clinics on or near college campus- they can remain mysterious even to es. The Center also interviewed 33 their participants. women who reported being sexually Institutional barriers compound assaulted by other students. n the problem of silence, and few actually make it to a campus hearing. Those who do come forward, UND ERSTANDING though, can encounter secret disci- THE LAW 8

UND ERSTANDING THE LAW Title IX of the Education Amendments of 1972 Passed by Congress in 1972, Title IX is the civil rights law that requires gender equity for males and females in every educational program or activity that receives federal funding. Title IX applies not just to K-12 schools, but to institutions of higher education as well. Title IX is familiar to most people as it applies to sports, but athletics is but one of 10 key areas addressed by the law. Under Title IX, discrimination on the basis of sex also encompasses sexual harassment, sexual assault, and rape. If a college or university is aware of, but ignores sexual harassment or assault in its programs or activities, it may be held liable under the law. A school can be held responsible in court whether the harassment is committed by faculty or staff, or by another student. In some cases, the school may be required to pay the victim mon- etary damages. As an alternative to suing in civil court, student victims can also ask the Education Department’s Office for Civil Rights to investigate a school’s response to sexual assault. The Office for Civil Rights has issued a 2001 guidance document covering harassment of students by school employees, other students, and third parties. The office mandates schools take “prompt and effective action to end harassment and prevent its recurrence.” Since its passage 35 years ago, Title IX has been amended three times, and has been the subject of a variety of reviews, Supreme Court cases, and political protest actions.

The Family Educational Rights and Privacy Act (FERPA) In November 1974, Congress passed FERPA, as it’s known, which protects the privacy of a student’s educational records. The law

grants three, basic rights to parents of minor-aged students and students aged 18 and older: the right to access educational records; to challenge the records’ contents; and to have control over disclosure of “personally identifiable information” in the records. FERPA applies to all schools receiving federal funds. FERPA is also known as the “Buckley Amendment,” after its principal sponsor, Senator James Buckley, of New York, who offered it as an amendment on the Senate floor. Congress has modi- fied FERPA nine times over the past 35 years; its most significant amendments have come from the 1990 passage of the Clery Act (see below). Interpretation of the law has long proven controversial. Con- gress never defined what constitutes an education record, so some schools have applied its provisions to cover pretty much any document that names a student — sparking charges that schools are using a broad reading of FERPA to conceal embarrassing information from the public. College administrators argue that FERPA requires closed disciplinary proceedings in a variety of matters, including allegations of sexual assault. But in promulgating its regulations, the Education Department has said that FERPA does not prevent an institution from opening disciplinary proceedings to the public, per se. Despite that declaration, confusion still exists over how colleges should apply the provisions of FERPA.

The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act) The Clery Act became law in November 1990. It grew out of the grisly rape and murder, in April 1986, of Jeanne Clery, 19, a freshman at Lehigh University. She was killed by a fellow student who had entered her campus dormitory through a door that had been propped open.

Throughout the late 1980s, Clery’s parents led a crusade to enact the original Campus Security Act, in Pennsylvania — the state law upon which the federal version would be based — after discovering that Lehigh students hadn’t been told about 38 violent crimes occurring on campus in the three years before their daughter’s death. The Clery Act requires all colleges and universities that participate in federal financial aid programs to collect, retain, and disclose information about crime on or near their campuses. The Education Department monitors compliance, and can impose penalties, up to $27,500 for each violation, against institutions. The department can also suspend institutions from participating in federal student financial aid programs — an almost unprecedented action. In its 19-year history, the law has proven notoriously difficult for college administrators to decipher and uphold partly because of the vague definitions of crimes and partly because of the large universe of school officials who must be polled when gathering annual statistics. Confusion has been compounded by a lack of clear guidance from the Educa- tion Department over the years. Not until 2005 — nearly 15 years after the law was enacted—did the department publish its Clery Act handbook explaining all the unique reporting provisions. In 1992, the act was amended to include certain basic rights that schools must provide survivors of sexual assaults on campus, particularly student-on-student assaults. Those provisions are known as the Campus Sexual Assault Victims’ Bill of Rights, and stipulate these five guarantees: schools must give the alleged victim and the alleged assailant equal opportunity for witnesses in disciplinary proceedings; and equal notification of the outcome of such proceedings; they must notify alleged victims of counseling services; of their options to go to local police; and of their options for changing classes and dormitory assignments in order to avoid their alleged assailants. n

3COMMENTARY SHOW CONTENTS FIRST ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 14 Sexual Assault on Campus Shrouded in Secrecy H igh Rates of Rape, Closed Hearings, and Confusing Laws By Kristen Lombardi Published Online | December 1, 2009

hreeo h urs into delib- decision she’d considered “my last erations by the University resort.” Tof Virginia’s Sexual Assault Russell stands among the tiny mi- Board, UVA junior Kathryn Russell nority of students who have pursued sat with her mother in a closet-like rape complaints in the college judi- room in sprawling Peabody Hall. cial system — 33 at UVA, a school of Down the corridor, two profes- 21,057 students, since 1998. She be- sors and two students were decid- came well-versed in the confidential ing her fate. Russell was replaying nature of the process as described in her mind, endlessly, details of in the school’s 2004 written proce- her allegations of rape when, she dures. Deans repeated the blanket remembers, Shamim Sisson, the stipulation to her “ad nauseam,” she board chair, stepped into the room says, throughout her three-month and delivered the order: You can’t proceeding. The school later de- talk about the verdict to anyone. fended its mandatory confidentiality That stern admonition was a re- policy before the U.S. Department minder of the silence Russell had of Education even while softening been keeping since, she says, she the language. struggled to break free from a fellow Relating the gag order back in the student’s grip in her dorm. That’s room, Sisson, Russell says, provided the account she gave local authori- a strong incentive to keep quiet: If ties, who declined to prosecute. And you talk of the verdict, you’ll face that’s what, in May 2004, she told the disciplinary charges. UVA Sexual Assault Board, whose At the time, the exchange didn’t

faze Russell, who says she did as forward can encounter mystifying told in an effort to get justice. But disciplinary proceedings, secretive five years later, she’s come to see the school administrations, and off- school’s old confidentiality policy as the-record negotiations. At times, emblematic of just how far colleges policies lead to dropped complaints and universities will go to keep se- and, in cases like Russell’s, gag or- cret cases of alleged sexual assault. ders later found to be illegal. Many And a recent ruling by the Education college administrators believe the Department against UVA for a policy existing processes provide a fair “inconsistent with the letter and spir- and effective way to deal with ultra- it” of the law has resulted in signifi- sensitive allegations, but alleged vic- cant changes there. tims say these processes leave them feeling like victims a second time. The Center has interviewed 48 ex- Silent Victims, Secretive perts familiar with the disciplinary Administrators process — student affairs admin- But an array of practices at UVA istrators, conduct hearing officers, and college campuses elsewhere assault services directors, victim continues to shroud the college ju- advocates — as well as 33 female dicial system in controversy. Indeed, students who have reported being a nine-month investigation by the raped by other students. The inquiry Center for Public Integrity has found has included a review of records in that a thick blanket of secrecy still select cases, and examinations of envelops cases involving allegations 10 years worth of complaints filed of sexual assault on campus. One against institutions with the U.S. national study reports that roughly Education Department under Title one in five women who attend col- IX and the Clery Act — two laws lege will become the victim of a rape requiring schools to respond to as- or an attempted rape by the time she sault claims and to offer key rights graduates. But while the vast major- to alleged victims. The Center has ity of students who are sexually as- also surveyed 152 crisis-services saulted remain silent — just over 95 programs and clinics on or near col- percent, according to a study funded lege campuses nationwide over the by the research arm of the U.S. Jus- past year. tice Department — those who come Just over half the students inter-

Former University of Virginia student Kathryn Russell reported to campus officials that she was raped by a fellow student in her on-campus apartment in February 2004. (Credit: Jim Lo Scalzo)

viewed by the Center have reported threatened with punishment if they they unsuccessfully sought criminal did not. Still other students said ad- charges and instead had to seek jus- ministrators discouraged them from tice in closed, school-run adminis- pursuing rape complaints. Survey trative proceedings that led either respondents indicated similar prob- to academic penalties or no punish- lems with the closed procedures on ment at all for their alleged assail- campuses. ants, leaving them feeling betrayed Undoubtedly, another law, the by a process they say has little trans- Family Educational Rights and Pri- parency or accountability. Some of vacy Act, complicates the issue. those students, including Russell, FERPA forbids schools from divulg- said they were ordered to keep ing students’ educational records, quiet about the proceedings and including disciplinary records. Ad-

ministrators believe it binds them see as a culture of silence that casts to silence on case details, but others doubt on the credibility of the pro- aren’t so sure. Under FERPA, col- cess. “People will think we’re run- leges can release names of students ning star chambers,” says Don Geh- found “responsible” for committing ring, founder of the Association for violent acts. But “we don’t,” con- Student Conduct Administration, cedes Rick Olshak, associate dean referring to secret, arbitrary courts of students at Illinois State Univer- in old England. “And that’s what’s sity, “and I don’t know anyone who happening now.” does, frankly.” Victim advocates contend that colleges use the law as Kathryn Russell’s a smokescreen to cover up campus Allegations crimes. “Most institutions have a strong Russell first approached the UVA interest in keeping sexual assaults administration in February 2004. as quiet as possible,” says David Li- UVA is required by Title IX regula- sak, an associate professor at the tions to respond “promptly and equi- University of Massachusetts-Boston, tably” when a student alleges sexual who has trained college administra- assault — investigating the claim tors on combating sexual violence. and taking action to eliminate harm. Typically, Lisak notes, administra- Most institutions, including UVA, tors view campus sexual assault list “sexual assault” or “sexual mis- as “a very negative piece of public- conduct” as prohibited acts in their ity,” tarnishing institutional reputa- official standards of conduct — alle- tions, and heightening fears among gations of which automatically trig- tuition-paying parents and students ger internal disciplinary processes. for whom colleges are aggressively A petite, perky student who competing. counted herself “a nerd,” Russell College administrators bristle at reported that she had been raped the idea they’re shielding rapes. But on February 13 by a fellow junior they admit they’ve wrestled with whom she’d gotten to know through confidentiality in campus assault a class and a club the year before. proceedings because of FERPA and On a campus prone to what UVA as- the Clery Act. Confusion over the sault-services director Claire Kaplan laws has reinforced what critics calls “a culture of silence around

sexual assault,” administrators say Rue, Russell charges, recommended they have strived to encourage re- mediation — an equally shrouded porting. “We try to make it clear that process in which, according to the UVA … has zero tolerance for sexual UVA procedures, “all verbal state- offenders,” says Patricia Lampkin, ments … must remain confidential,” vice president for student affairs, including “offers of apologies and “and that students need to report all concessions.” assaults.” In 2004, Russell became “I didn’t want to talk to him,” re- one of eight to recount an alleged calls Russell, of her alleged assail- rape in a UVA dorm. ant, so mediation seemed out of the Eight days after filing an incident question. She would later initiate report; after telling UVA police she her complaint in a March 19 e-mail had “unwanted sexual contact”; af- to Rue. ter informing UVA doctors of “wors- In ensuing days, the dean would ening pain” from allegedly forced informally “confront” Russell’s al- sex, Russell found herself repeating leged assailant, who claimed he’d the story to Penny Rue, then dean had consensual sex with Russell. of students. The dean gave Rus- In his March 30, 2004, statement to sell a 12-page document, entitled UVA administrators, the accused “UNIVERSITY OF VIRGINIA PRO- student portrayed Russell as a will- CEDURES FOR SEXUAL ASSAULT ing flirt at a bar who turned sexual CASES,” which outlined options for aggressor in her dorm, and who re- adjudicating complaints. It included peatedly “grabbed my genitals and this language: wanted me not to leave.” The indi- Confidentiality of the hearings vidual in question did not respond process is of great importance to all to multiple calls, e-mails, and letters involved. Identity of the reporting from the Center seeking comment. or accused student and any formal Rue now works as vice chancel- discipline resulting from the hear- lor of student affairs at the Universi- ing may not be publicly disclosed… ty of California, San Diego. In an Au- Rue didn’t dwell on the policy at gust 2005 letter addressed to UVA’s first. Instead, Russell remembers associate general counsel, obtained the dean doing what many victim by the Center for Public Integrity, advocates say is common: discour- Rue confirmed meeting Russell and aging her from pursuing a hearing. handing her the school’s written pro-

cedures. The dean said she’d been ues in which to resolve these cases careful to lay out all the options. “I are on campus. let her know that it was her deci- Internal disciplinary panels, like sion whether to pursue charges,” the UVA Sexual Assault Board, ex- Rue wrote in the letter, “and that the ist in various forms on most cam- University would support her either puses. But they’re not the only way way.” Rue declined to discuss Rus- schools handle rape allegations. sell’s case with the Center, as did For decades, informal proceedings other former and current UVA offi- run by an administrator have rep- cials familiar with it, despite a waiv- resented the most common method er from Russell granting permission to adjudicate disciplinary matters. for them to do so. Typically, an administrator meets with both students, separately, in an attempt to resolve a complaint. Informal Proceedings Occasionally, they “mediate” the in- Common cident. Officials find such adjudica- Days before filing her complaint, tion appealing in uncontested situa- Russell learned that the local dis- tions. If a dean elicits a confession, trict attorney wouldn’t press crimi- says Olshak, of Illinois State, who nal charges — a typical outcome. headed the student conduct asso- Experts say the reasons are simple: ciation in 2001, “We’ll be able to Most cases involving campus rape resolve the complaint quickly, eas- allegations come down to he-said- ily, and without the confrontation she-said accounts of sexual acts of a judicial hearing.” Resolution, that clearly occurred; they lack in- as in formal hearings, can mean dependent corroboration like phys- expulsion, suspension, probation, ical evidence or eyewitness testi- or another academic penalty, like mony. At times, alcohol and drugs an assigned research paper. By all play such a central role, students accounts, informal processes take can’t remember details. Given all place almost as frequently as for- this, says Gary Pavela, who ran ju- mal ones ; at UVA, for example, the dicial programs at the University of administration has held 16 hearings Maryland, College Park, “A pros- since 1998, as compared to 10 infor- ecutor says, ‘I’m not going to take mal meetings. this to a jury.’” Often, the only ven- And these proceedings can turn

out positively for student victims. In the Justice Department and the Ed- January 2005, Carrie Ressler, then ucation Department explicitly say a junior at Concordia University, in guidance documents that schools near Chicago, reported being raped should not encourage mediation in by a football player after attending sexual assault cases. Yet Katherine a party in his dorm. On January 19, Lawson, an attorney at the Victim within hours of the alleged assault, Rights Law Center, in Boston, says the police arrested the student ath- she’s heard one local administrator lete; by October, he’d pled guilty boast they haven’t held a full sex- to battery for “knowingly [making] ual assault hearing in years. “This physical contact of an insulting na- meant to us that they had managed ture,” court records show. to pressure students to drop a com- At Concordia, Ressler’s report plaint, mediate, or take some lesser landed on the desk of Dean of Stu- administrative route,” she explains, dents Jeffrey Hynes. The morning which kept cases quiet. At times, of the arrest, the dean summoned these proceedings even leave the her to his office. “He told me he’d victim advocates in the dark. Says be telling the perpetrator he need- one crisis-services coordinator at a ed to leave by choice,” she remem- Massachusetts university, “I don’t bers Hynes saying. “If not, he’d be have any idea what goes on in those expelled.” Within days, the athlete little [deans’] meetings.” had left Concordia. Hynes declined to comment on Ressler’s case. College Hearings: Little “The dean acted in my inter- Transparency ests,” Ressler says. She recognizes, though, that the informal adjudi- More formal proceedings are some- cation served the university’s in- times no less shrouded. College dis- terests, too. “I got the sense from ciplinary hearings, unlike courts, the dean that the school wanted to lack the trappings of transparency — keep this case hush-hush.” campus spectators. Advocates can’t Many victim advocates share attend unless serving as “advisers” to Ressler’s opinion on this. Often, students. Only integral participants these victim advocates charge, in- like board members or administra- formal proceedings serve to sweep tors have any clue when a hearing oc- campus assaults under the rug. Both curs. “They’re secret because they’re

closed,” says S. Daniel Carter, of Se- football players and recruits during curity on Campus Inc., a watchdog a beer-soaked party. They claimed group. she was a willing participant. Within Administrators see it differently, days, Simpson’s rape report made its arguing that there are important dis- way to CU’s judicial affairs director, tinctions between “secrecy” and “pri- Matthew Lopez-Phillips. During a vacy.” They can’t open up internal meeting in his office, she recalls him proceedings — formal or informal — relaying how a panel of students, fac- because that would amount to grant- ulty, and staff would adjudicate. At ing access to private educational re- the time, CU’s official conduct code cords, which FERPA prohibits, they stated that alleged victims would say. But that doesn’t mean they’re generally be expected to participate operating in secret. “Not providing in the process by “providing testi- private information to the rest of mony at the formal hearing of the ac- the world is respecting confidential- cused,” among other things. ity and respecting FERPA as a law,” But Simpson never appeared be- says Mary Beth Mackin, assistant fore a panel. No panelist interviewed dean of student life at the University her about the report, or the victim of Wisconsin-Whitewater. And while impact statement she filed. Even af- proceedings remain hidden to outsid- ter her five-year legal battle against ers, administrators maintain they’re CU over its response to her case — a conducted so students feel they’re as battle that sparked a broader investi- open as possible. gation, as well as systematic reform Lisa Simpson would probably dis- — she has no idea what transpired agree. Her allegations of rape at the before the panel, or if it actually even University of Colorado at Boulder existed. CU documents obtained by blew open a scandal of sexual assault the Center show one accused stu- allegations against football players dent underwent a formal hearing as a and recruits in 2004; three years later, result of Simpson’s report; three oth- her Title IX lawsuit brought against ers had informal, administrative pro- CU ended in a $2.85 million settle- ceedings. But some CU documents ment in her favor. Yet she found CU’s on the panel remain sealed by pro- judicial process a mystery. In Decem- tective order, and only one includes ber 2001, Simpson, then a CU sopho- a list of 17 possible panelists. Court more, alleged she was raped by five records have revealed the identity of

only one panelist. “For all I know,” and letters stamped “CONFIDEN- Simpson says, “it could have been a TIAL.” By the time the hearing oc- panel of athletic coaches.” curred, Russell had heard the stipu- Lopez-Phillips, who now works lation so often she refused to share at Sonoma State University, did not documents with her mother. Over respond to several calls and e-mails nine hours, as family and friends wait- from the Center. Meanwhile, the sole ed outside, the four-member board panelist named in court records, Car- sat in a secured conference room, los Garcia, who directs CU’s student listening to testimony. Russell and center, declined to comment, citing the alleged assailant agreed on initial “confidential” board sessions. details — they ran into each other at a bar; he ended up at her dorm; she offered him an air mattress to sleep. Adjudicating the But they painted different pictures of Russell Case what transpired next. The man, Rus- Russell’s proceedings before the sell said, grabbed her from behind, UVA Sexual Assault Board com- ignored her pleas to stop, and “used menced on May 10, 2004. Accord- [me] for his sexual need.” Russell, ing to the hearing transcript, Sisson, the man countered, “tacitly agreed to the board chair and senior associate have sex,” demanding a condom, and dean, said: “All parties are reminded never saying no. “Not all my actions these proceedings are confidential would in a day-to-day situation be …” considered kosher,” he wrote in his It had become a familiar refrain April 23, 2004 defense. “But none of for Russell. Before Russell filed her my actions broached or even swept complaint, UVA deans spelled out the near the arena of rape.” policy. In a March 1 e-mail, Rue told Sisson repeated the confidential- Russell: ity admonition 11 times during the It is perfectly okay to discuss hearing, according to the transcript. the events that occurred with any- By its end, she relayed a directive one you trust, but the fact that they that would wipe away much of the are subject to a judicial proceeding hearing record. “Leave all of your through the university must be kept materials,” she told participants, “so entirely confidential. these materials are shredded.” Reminders followed — in e-mails Russell’s mother, Susan, who had

created a website criticizing UVA’s include… violations of the rules of response to campus rape allegations, confidentiality.” But administrators claims Sisson admonished her, too, stress students have never gotten in threatening to bring Kathryn up on trouble for telling their stories. disciplinary charges if the hearing Instead, they blame their former verdict was posted on the site. policy on a longstanding confusion In a brief phone call with the Cen- within higher education over the ter, Sisson, now retired, described the scope of FERPA in sexual assault proceedings as “entirely confidential proceedings. For decades, college at the time,” and “a complicated set administrators had operated under of circumstances.” She said, “I ap- the assumption that FERPA protects proached my work and every one of all disciplinary proceedings — until these cases with the greatest profes- the Clery Act passed in 1992. The sional integrity.” Asked if she warned Clery Act makes it mandatory for Russell not to talk or threatened dis- schools to notify alleged victims of ciplinary charges, she replied, “I can- hearing results. Understanding how not comment on specifics.” FERPA intersects with Clery — two laws seemingly at odds—has been, in Eramo’s words, “difficult for admin- Going after Gag Orders istrators.” UVA administrators insist the con- That confusion, according to Cart- fidentiality policy laid out in the er, who heads public policy at Se- school’s 2004 written procedures curity on Campus Inc. has caused a was never meant to muzzle students, proliferation of disturbing practices. although they recognize students Some schools have threatened al- could “over interpret” its language. leged victims with expulsion for dis- Nor was it official practice to warn closing verdicts. Others have barred them to keep quiet — or else. “There them from viewing their proceeding was no quid pro quo here that I know,” records. Still others have required says Nicole Eramo, current chair of confidentiality pacts — all citing the UVA Sexual Assault Board. “That FERPA. The Education Department was just not part of our policy.” The found that institutions had even kept actual written policy suggests oth- alleged victims in the dark. In Sep- erwise — both old and new proce- tember 2005, the department fined dures state punishable actions “may Miami University of Ohio $27,500 for

breaking a promise to regulators to agreed, issuing a ruling against provide accurate written information Georgetown for its “impermissible about hearing results to student vic- non-disclosure agreement for Clery tims, as it had done to accused stu- Act purposes.” It ruled that Clery dents. Earlier that year, in June, the grants alleged victims a right to their department determined that Califor- proceeding outcomes, without re- nia State University, East Bay, had strictions, despite FERPA. Its final violated Title IX by not notifying al- determination letter, dated July 16, leged victims of the outcomes of sex- required Georgetown to “discontin- ual harassment investigations — re- ue its use of non-disclosure agree- quiring the school fix its policy under ments.” a resolution agreement. Carter then went after illegal gag By October 2002, Carter had peti- orders elsewhere — like one present- tioned the Department of Education ed to Alphia Morin at the University about these sorts of practices. Alleged of Central Florida. Now a former stu- victims should be allowed to disclose dent, Morin found the school’s pro- not just the hearing results, he said, cess “very hidden to me” after filing a but also names of accused students rape complaint against a scholarship and any sanctions. In March 2003, athlete. In January 2005, the then- he filed a separate complaint against freshman learned she could only par- Georgetown University, which had ticipate in the hearing before UCF’s been using gag orders in its proceed- Student Conduct Board as a “wit- ings. Like UVA, the Georgetown ad- ness” to her alleged assault. Save for ministration restricted students from her 20-minute testimony, the board divulging outcomes. Unlike UVA, it banned her from the room. Later, she refused to release those outcomes learned she could only receive the unless students signed confidential- verdict by signing a confidentiality ity agreements. Carter saw the pacts agreement. as clear violations of the Clery Act, Morin went public with her pre- which provides that “both the accus- dicament in the campus newspaper, er and the accused shall be informed prompting Carter of Security on Cam- of the outcome of any campus disci- pus Inc. to send a cautionary e-mail plinary proceeding brought alleging a to UCF President John Hitt, warning sexual assault.” that UCF’s policy sounded illegal. In July 2004, the department Four days later, UCF sent Morin a

copy of the verdict, with no written In the end, the student Russell ac- pacts attached. Carter managed to cused was found “not responsible” nullify verbal gag orders at schools for sexual assault. The board instead including the College of William and slapped him with a verbal reprimand. Mary, among others, though he and “We … believe that you used very administrators agree that written gag bad judgment,” Sisson declared. The orders have always been pretty rare. case resulted in one of nine “not- responsible” verdicts the UVA board has handed down over the past de- A Ruling against UVA cade, as compared to seven respon- Kathryn Russell didn’t think much sible ones. about her school’s policy until “You can have a bad sexual expe- things went badly. At the hearing, rience but not be sexually assaulted board members asked questions under the university’s definition and making her wonder about their standard of evidence,” says the prior training — “Did it occur to you to UVA board member. perhaps leave the room?” “Why not Russell saw it differently. “It was just shut the door [on him]?” Sourc- just a charade,” she said. es familiar with the UVA board’s In light of all those warnings about training describe it as extensive; in confidentiality, Russell thought she 2004, the school required members could tell no one what happened. But to undergo a day of preparation in November 2004, her mother filed a featuring a videotape and reading complaint against UVA with the Edu- materials, as well as sessions with cation Department, alleging viola- outside experts on campus sexual tions under the Clery Act. It centered assault. One previous board mem- on the verbal threats of punishment, ber describes Russell’s panelists as did a second complaint filed on as open-minded and thoughtful. behalf of another former UVA stu- But the panel also judged her com- dent, Annie Hylton. Hylton told the plaint using a “clear and convinc- Center she had feared repercussions ing” evidence standard, which the from UVA for going public in the local Education Department ruled, in press that same month, even though one 2004 case, is higher than Title her hearing dated to 2002. IX authorizes — and which victim “That’s one reason I decided to advocates argue is illegal. go public,” she relays. “If they were

keeping me quiet, who else were they sequences ranging from disciplin- trying to keep quiet?” ary action to not being granted a In its official response, according hearing before the Sexual Assault to case records and a written state- Board in the first place. ment from the Education Depart- The department’s UVA decision ment, UVA argued it wasn’t violating has made it clear that alleged stu- Clery so much as upholding FERPA dent victims are no longer required and limiting what it termed “improp- to keep quiet about their hearing re- er re-disclosures.” Officials contend- sults. This year, in fact, the Education ed they could enforce the confidenti- Department has amended its FERPA ality policy through “pre-conditions” regulations to specify as much. The like a verbal commitment. While new regulations have thus effectively defending its policy, UVA was also ended confidentiality requirements reviewing the 2004 procedures. By for hearing results on college cam- March 2005, UVA administrators had puses. But they have left open ques- submitted to the department a re- tions about broader secrecy require- vamped policy that would soften the ments to participate in the college language and eliminate specific se- judicial process — even on the UVA crecy requirements. The new policy campus. says the university “neither encourages nor discourages further disclo- Discretion or Lack of sure.” Accountability? In November 2008, however, the Education Department determined Inside the stately, red-brick Rotunda the school had violated the Clery at UVA, administrators say the Edu- Act. In a letter to UVA President John cation Department’s decision repre- Casteen, it stated “the University sents the byproduct of a confused le- cannot require an accuser to agree to gal environment. And they assert that abide by its non-disclosure policy, in the school had already changed its writing or otherwise.” The November confidentiality policy by the time the 3, 2008 letter added: department issued its ruling. Unlike It is … clear that several UVA stu- before, they say, the school’s current dents were persuaded that failure to procedures make plain that students adhere to the confidentiality policy can divulge their proceeding results, could have resulted in serious con- including accused students’ names

and any sanctions. The school has officials, such as UVA’s Lampkin, also taken steps to improve the pro- insist a confidential procedure en- cess: it has bolstered investigations courages reluctant alleged victims to of rape allegations; improved train- come forward in the first place — a ing for the assault board; and added a sentiment reinforced by some sur- lesser charge of “sexual misconduct” vey respondents. Others consider it to its standards of conduct. Susan crucial to ensure rights of accused Davis, assistant vice president for students. Still others argue there is student affairs, says UVA has “struck no need for outsiders to know details a good balance now.” Indeed, deans of campus rape proceedings because elsewhere have touted the current schools are deciding if a student’s UVA procedures as a national model. conduct violated institutional rules But procedures at many schools, — not criminal laws. including UVA, still stipulate a con- “I’ve yet to hear students say they fidential process — in formal hear- want a public process,” says Davis. ings, and in informal mediations. For “It’s a balance between figuring out instance, UVA administrators still how to give students a safe space,” caution students not to discuss their Lampkin adds, “and having an envi- proceedings during the process. To- ronment where both the accuser and day’s written procedures still specify accused will come forward.” that all proceeding “documents, tes- But critics say that attitude fails to timony, or other evidence … may not acknowledge a fundamental flaw in be disclosed.” Read the actual policy, the college judicial system: Without and the only confidentiality language outside scrutiny, it lacks accountabil- that has changed is the stipulation ity. “The reason for disclosure and that students can divulge their pro- public oversight is that we can’t al- ceeding results. But even that comes low educational institutions to police with a warning to, as the procedures themselves,” observes Mark Good- state, “consult with legal counsel be- man, former head of the Student fore doing so.” To critics, the silenc- Press Law Center, which has pushed ing effect of the old confidentiality for more transparency. He, like many rules still holds. But to UVA deans critics, believes the institutional reli- — and their colleagues elsewhere ance on confidentiality does more to — there is legitimacy to ensuring a protect the image of colleges than closed process as it unfolds. Some the anonymity of students. “I have

a fundamental disagreement with But Bucknell administrators de- schools over the notion that justice fend their use of the practice, which can be reached in secrecy,” he says. they now call “voluntary facilitated dialogue,” precisely because it only occurs at the request of an accus- Controversy over ing student, with the willing partici- Mediation pation of an accused student. Any Not without unintended conse- power imbalance, they argue, is quences, at least. In November evened out by the presence of two 2003, Mallory Shear-Heyman, then a administrators — one male, one fe- sophomore at Bucknell University male — guiding the conversation in Pennsylvania, underwent a con- and assuring a comfortable setting. fidential mediation after reporting “Our students have really been key being raped in her dorm by a fellow spokespeople for indicating they student. Mediations became popular want some sort of option to have this in disciplinary matters involving sex- dialogue,” says Kari Conrad, judicial ual assault earlier in the decade, and administrator for sexual miscon- remain common today — despite duct. “We feel confident in keeping controversy. In 2001, the Education this process as a responsible re- Department deemed mediations im- sponse.” proper partly because they carry no Shear-Heyman remembers Buck- punishment. And while mediation nell officials portraying the off-the- is generally considered effective for record session as an attractive way resolving interpersonal conflicts, the to confront the accused student, “as department — and many critics — if it were the best option ever.” Confi- argue that it falls short in instances dentiality, they relayed, would allow of sexual violence. The reason: an for more open and honest discus- intimidating element exists between sion. She was presented with a waiv- victims and their assailants because, er, which specified that “information like other serious assault, sexual as- first disclosed during mediation may sault is a violent act “In some cases,” not be used in any subsequent inter- the department states in its guidance nal University proceeding.” document, referring to sexual assault But Shear-Heyman wouldn’t cases, “mediation will not be appro- grasp the waiver’s implications until priate even on a voluntary basis.” the accused student, she says, impli-

cated himself. Buck- nell records show the student apologized to her in instant messages, admitting “b/c you got hurt, yes,” what had occurred was rape. She says he repeated the admissions before the two deans who participated in the mediation — Gerald Com- merford and Amy Badal. The waiver did not prevent Shear- Heyman from pursu- Believing that her alleged perpetrator’s ing outside remedies. admissions in mediation were off limits, Mallory But the deans, she Shear-Heyman did not immediately try to pursue says, gave her the criminal charges. (Credit: Jim Lo Scalzo.) strong impression that she couldn’t use what had oc- don’t recall any such scenario,” says curred in the session — on or off Badal. campus. When she later considered Bucknell administrators insist it pursuing criminal charges, she says, is standard practice to inform par- the deans claimed not to remember ticipants verbally and in writing that the accused student’s alleged admis- pursuing mediation won’t preclude sions. them from filing charges — on or Both Commerford and Badal told off campus. Commerford describes the Center they don’t remember himself and Badal as “sticklers about details from Shear-Heyman’s me- following the protocol.” “I cannot diation, including possible incrimi- speak for Mallory and her interpre- nating statements. And they claim tations,” he adds, “but I can tell you not to recall her later asking them that we followed the protocol to a T.” to corroborate such statements. “I One former Bucknell employee

familiar with Shear-Heyman’s me- Court for the City of Charlottesville, diation finds the practice “a problem laying out her story in a complaint. because alleged assailants can say The suit was never served on the whatever they want without any re- man and eventually was dismissed at percussions” — a criticism voiced Russell’s request, because, she says, by many victim advocates. Bucknell she could not afford an attorney. The University officials confirm that they injustice of seeing her alleged assail- wouldn’t take action against an ac- ant go unpunished has been, in her cused student who apologizes or words, “the worst thing imaginable.” confesses in mediation unless the More recently, Russell discovered victim were to file charges first — that the same student faced a second something that Shear-Heyman found rape complaint at UVA. In April 2005, pretty pointless. “After I’d realized nearly a year after Russell’s hearing, how much I got screwed with the Rebekah Hay, then a UVA junior, filed confidentiality,” she says, “I didn’t that complaint, which ended up be- want to pursue anything further with fore two assault boards because the the university.” The former employee accused appealed — the first board adds, “I absolutely think the practice returned a verdict against him; the serves the interest of the university, second did not. Hay remembers Dean not the victims.” Rue addressing the suspect’s history As for Russell, her life unraveled when she had filed her complaint. in the years after her proceeding at “She said to me, ‘I’m sorry to see this UVA. She lost weight, moved home, name come up again,’” Hay recalls. and divorced herself from friends. UVA administrators — and the al- For years, she would find herself leged assailant — have stayed silent replaying in her mind, endlessly, de- on the specifics of this complaint. tails of her proceeding. She’s long Hay has never spoken publicly about struggled to reconcile the fact that her UVA case — until now. After all, what she endured in pursuing a com- the confidentiality of those proceed- plaint had been for naught. Nothing ings was emphasized at UVA, she had happened to her alleged assail- says, “and repeated and repeated ant. “He was barely inconvenienced and repeated again.” n by having to attend the hearing,” she says. Three years ago, Russell filed Staff Writer Kristin Jones contrib- a civil lawsuit against him in Circuit uted to this article.

3KEY FINDINGS SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 31 Barriers Curb Reporting On Campus Sexual Assault L ack of Response Discourages Victims of Rape, Other Crimes By Kristin Jones Published Online | December 2, 2009

uie r d in the pages of dence life Carlyle Hicks to report the 2006 student handbook for that she had been raped by a man — BDominican College, a small or men — she could not identify. Catholic institution in the northern But Wright found cold comfort in suburbs of New York City, were five Hicks’ response. dense paragraphs about what would “He didn’t seem to have a clue,” happen if a student reported a rape. says Wright’s mother Cynthia Mc- The college would investigate. Grath, who attended the meeting. That much is required by law. Evi- Hicks didn’t mention a word about dence would be collected and pre- a campus disciplinary process, says served. And if the alleged rapist McGrath, or even ask if the shy red- were another student, campus dis- head was okay. “Just a lack of con- ciplinary proceedings would ensue, cern, like he couldn’t be bothered.” allowing both sides to speak before McGrath describes the meeting a hearing board. as the first of many discouraging The policy was tested in May encounters with Dominican College 2006, with Megan Wright, 19, a fresh- as Wright sought some sort of action man from New Jersey. After drink- from the school against the fellow ing heavily with others in a friend’s students she suspected of gang-rap- dorm room, she woke up in pain on ing her. By late summer, Wright had a Sunday morning, with blood in her withdrawn from Dominican and en- underwear. On Monday, she elbowed rolled in a local community college through a lunchtime rush of students to avoid running into her alleged to the glass office of director of resi- attackers. By late fall, the police in-

vestigation had dead-ended. And on the Justice Department found that a Saturday afternoon in December, one in five women who attend col- Wright kissed her mother on the lege will become the victim of a rape cheek, went upstairs, and suffocat- or an attempted rape by the time ed herself with a plastic bag. she graduates. But students report- McGrath is now suing Dominican ing sexual assault routinely say they College administrators, including face a host of institutional barriers Hicks, saying they refused to investi- in pursuing the on-campus remedies gate or take Wright’s complaint seri- meant to keep colleges and universi- ously. “All I wanted from the school ties safe, according to a nine-month was to know that she was going to be investigation by the Center for Pub- safe, that these guys were not going lic Integrity. The result, say experts, to be on the campus,” says McGrath. is a widespread feeling that justice Administrators at Dominican Col- isn’t being served, and may not even lege, including Hicks, would not be worth pursuing. comment for this story; their law- In conducting its probe, the Cen- yer Philip Semprevivo cited pending ter interviewed 48 experts familiar litigation. But Semprevivo denied with the college disciplinary process McGrath’s allegations and said the — lawyers, student affairs adminis- College is “aggressively defending” trators, conduct hearing officers, as- itself in court. sault services directors, and victim “No conduct [of Dominican Col- advocates. The inquiry included a re- lege] has been alleged which is in view of hundreds of pages of records any way shocking or extreme,” the in select cases, and examinations of school has previously argued in a 10 years worth of complaints filed motion to dismiss the lawsuit. How- against institutions with the Educa- ever, in late November, a judge de- tion Department under Title IX and nied the college’s motion. the Clery Act, as well as a survey of 152 crisis services programs and clinics on or near college campus- A Disappointing Response es. The Center also interviewed 33 For many college students who al- women who reported being sexually lege they’ve been raped each year, assaulted by other students. Sexual disappointment may indeed be the assault includes not only rape, but norm. One national study funded by also a variety of sexual offenses.

Crisis counselors and service pro- tion in education, and the Clery Act, viders who work with college stu- which is intended to document cam- dents described barriers as overt as pus crime. (See Overview for more a dean expressing disbelief. These on the laws that govern how col- counselors cited institutional barri- leges and universities respond to ers on campus more often than any sexual assault.) These laws require other factor as a discouragement that institutions investigate and to students pursuing complaints of take action to end sexual assault, sexual assault, according to a Cen- and mandate policies for addressing ter survey of 152 on- and off-campus complaints on campus. centers that provide direct services Together with the personal and to victims. social barriers to reporting — some Lawyers pointed out failures as of them unique to college — these subtle as an institution’s neglecting institutional hurdles help explain to provide access to a professional the silence that often envelops sex- victim’s advocate to guide students ual assault on campus. College stu- through a complicated and intimi- dents report sexual assault even less dating process. Students cited fears often than the general public does, that their friends would get in trou- a 2000 Justice Department-funded ble for drinking or drug use, or that report found. That report concluded their names would not be kept con- that more than 95 percent of stu- fidential. Many alleged victims told dents who are sexually assaulted the Center they had encountered remain silent. roadblocks from their schools. Of Mike Segawa, president of the na- those students who said they’d met tional organization Student Affairs discouragement, most transferred Administrators in Higher Education or withdrew from their schools, (NASPA), says most colleges and while their alleged attackers were universities want to be “responsive almost uniformly unpunished. and supportive” to students report- Some of the most fundamental ing sexual assaults. He says schools obstacles to students pursuing sexu- are also acting to address perceived al assault complaints are also illegal, roadblocks. say lawyers. Colleges and universi- But for rape survivors who be- ties may be flouting federal laws like lieve that their college stood in the Title IX, which bans sex discrimina- way of pursuing a sexual assault

complaint, the experience of deal- Less than half of college women ing with the school can be trauma- who are raped identify it as rape, tizing. “They feel like someone they even privately, to judge from the trusted their lives with has betrayed sample in the Justice Department them,” says S. Daniel Carter, direc- report. In Center interviews, many tor of public policy at the college alleged victims described intense safety advocacy group Security On doubt about what had happened. It Campus Inc. “It’s as life-altering — conflicted with what they thought if not more so — than the rape or they knew about violent rape — a sexual assault itself.” stereotypical image of a stranger in the bushes with a knife. The alleged assailants were, in some cases, peo- Feelings of Self-Doubt ple they considered friends. They de- Wright’s memory first failed her, scribed trying to push it to the back then it tortured her. of their minds, just wanting to get “Drinking in a dorm room w/ on with their lives. Or they blamed people I know,” Wright wrote in her themselves for drinking too much, or report to the residence life office. for failing to protect themselves. “I then do not remember what hap- Wright was by no means immune pend [sic] after 1:00 am. I do remem- to self-doubt. But she did something ber a little of the incident. I then that experts say is crucial. She told went to the hospital the next morn- a supportive friend first. ing w/ [her friend] Kelly Rocco b/c I “She kept saying, ‘It’s all my fault, knew that I was raped.” I let this happen,’” says Kelly Rocco, All she remembered of the inci- who was an 18-year-old freshman dent was being in a dorm bed, ter- when Wright pulled her out of the rified, trying to tell a man she didn’t dorm hallway to tell her she had know to get off of her. The blood in been raped. her underwear, and the pain, told Rocco drove Wright to White her the rest. Plains Hospital, stayed with her for Before a college woman who has hours while nurses administered a been sexually assaulted even gets to rape kit and forensic exam, and took a dean’s door, she often has to get her out to eat. But Rocco admits that past herself — her own self-blame, or her first reaction was disbelief. her own memory lapses, experts say. “I was trying to find questions to

prove her wrong,” says Rocco, “be- a victim’s advocate on the Twin Cit- cause I was like, this doesn’t happen.” ies campus of the University of Min- nesota, describing the concerns of students she encounters. “Or are A Lack of Support they going to split that group?” Colleges rarely spend much time ed- When Christine Carter met this ucating students on how to respond dilemma as a transfer student at appropriately to a friend who has Towson University in Baltimore, she been sexually victimized, according chose to tell the group that a new- to a follow-up Justice Department- comer — a friend of a friend — had funded report in 2002. It found that reached into her pants while she was almost 60 percent of schools provid- sleeping. To her utter mortification, ed no response training at all to stu- they laughed and said she must have dents. And when they did, they often imagined it. directed it toward students who were “I was the butt of my friends’ residence hall advisers or security of- jokes,” said Carter. “Before we’d go ficers rather than the general student out, my friends would say, ‘Oh Chris- population. (Rocco says she received tine, don’t drink too much. You’ll sex- no rape awareness or response edu- ually assault yourself.’” cation during freshman orientation; They stopped laughing at her only Dominican College’s lawyer says when the same man did it again, both she and Wright did.) Carter said, to another friend in the Away from their parents from the group. This time, Carter reported to first time, female college students police that she had been assaulted, tend to rely on the structure of a and says she encouraged her friend close-knit residence hall, a sports to do the same. The man agreed to team, or a sorority; their friends’ re- serve probation on assault charges sponse is crucial. To complicate mat- but did not plead guilty, according to ters, say on-campus advocates, ac- Maryland court records. cused and accuser may be separated As for Wright, she didn’t even by just a few degrees. know whether she was accusing “If they do go forward and make friends or strangers at first. Her fam- a report, do they lose that group be- ily would accuse both, in the end. cause of the so-called problems they Their lawsuit alleges that Terrell Hill, are creating?” says Roberta Gibbons, a Dominican College student whom

Christine Carter said her friends mocked her for nearly a year until her alleged assailant was accused of doing the same thing to another member of their social circle. (Credit: Jim lo Scalzo)

she knew, was one of two men who the surveillance video that they were physically led her from her dorm snatching high-fives from onlookers room to an all-male floor. There, the as they went. At one point, Fegins school’s hallway surveillance cam- emerged from the room holding up era catches two Dominican College a sign that read “I WANT TO HAVE students, Isaiah Lynch and Richard SEX,” signed Megan Wright — an ar- Fegins, along with Fegins’ visiting tifact the school gave to police, along cousin Kenneth Thorne — none of with part of the video, and informa- them friends of Wright’s — going in tion about the students in it. and out of the room, according to Hill says that he has been unfair- documents obtained from the Or- ly accused for being in the “wrong angetown, NY, Police Department. place and wrong time.” He strongly The lawsuit alleges that all three denies the family’s allegations that raped her, and adds the detail from he conspired in Wright’s assault.

She was a friend, he says: “My sault is some form of disciplinary or friends — and our friends — know judicial hearing process, like the one that I’m not that kind of person.” Dominican describes in its hand- Like Hill, the other three were book. The Campus Assault Victims’ never charged with a crime, and Bill of Rights, a 1992 amendment to through their lawyers, they declined the Clery Act, mandates that schools to comment for this story. In court publish policies for preventing and documents, they deny raping Wright. addressing sexual assault, including Lynch told police that he was in the “procedures for on-campus disci- dorm room surfing the Web. He says plinary action.” he left when he saw Wright kissing Schools don’t always comply. Thorne. When he returned, he says, Justice Department reviews in re- she was putting her shirt back on. sponse to 26 complaints in the past He denies having any sexual contact decade found that four institutions with her. Police dropped the investi- — Eastern Michigan University, St gation — and the Rockland County Mary’s College (Indiana), Clemson District Attorney declined to pros- University, and Salem International ecute — after a handwriting expert University (West Virginia) — violat- said that Wright’s signature was on ed the Clery Act by failing to have the sign, and her sexual assault ex- or disclose policies for sex offenses. amination showed no trace of sperm. Several other on- and off-campus Nonetheless, a nurse’s notation says service providers surveyed by the that her vagina was visibly cut, swol- Center reported that their local col- len, and red. leges had no policy for adjudicating Wright broke down when she first sexual assault on campus. saw the video, according to Oran- Victims’ advocates say these for- getown police department notes. Her malized disciplinary procedures mother says it showed her things serve as a vehicle for colleges to Wright hadn’t known, and that she remove suspected predators from began having flashbacks. their campuses, and have different standards than a criminal justice system that rarely prosecutes rape. Campus Judiciary Process A failure to have disciplinary proce- At the center of many schools’ stat- dures in place constitutes a funda- ed policy of responding to sexual as- mental barrier to justice on campus,

advocates say. viewed by the Center described en- Even so, students are unlikely to countering processes that seemed get as far as a campus hearing, even intimidating, unsympathetic, or un- at apparently well-intentioned col- likely to result in punishment for the leges. accused students. Anna Babler, a Each year the Justice Depart- former student at Arizona State Uni- ment’s Office on Violence Against versity, says a judicial affairs admin- Women awards grants to colleges istrator in 2008 urged her to “speak to combat on-campus stalking and up” against a fraternity with a history sexual and domestic violence against of rape reports, without assuring that women. Many schools use this mon- her name would be kept confidential, ey to boost reporting and improve or telling her precisely how the cam- adjudication of rape on campus, to pus process would work. (An ASU mixed results. During fall 2008, the representative said that privacy rules most recent semi-annual report- prevented it from commenting on ing period available, 26 institutions specific cases, but that it takes sex- whose progress reports the Justice ual assault reports seriously.) Mary Department provided to the Center Chico, a former student at Miami reported only 25 sexual assault cases University in Ohio, describes meet- that resulted in any finding in a cam- ing with a school official in 2001 who pus disciplinary proceeding. Another made her feel that she was at fault by 16 were dismissed before they ever asking her questions like what she reached that point, with more than was wearing when she was assault- half of the dismissals at the victim’s ed. Chico believes a dean pushed own request. The schools had a com- her to take a medical leave from the bined female student population of school, accusations the school has about 270,000 the previous year. By dismissed as “baseless.” way of comparison, if that Justice Carter, of Security On Campus Department-funded study was cor- Inc., said that colleges and universi- rect, an estimated 6,450 of these stu- ties dissipate students’ confidence dents were actually sexually victim- in their adjudication systems by fail- ized during that six-month period. ing to coordinate between offices, The reports give little clue as to or by failing to provide access to why so few on-campus resolutions a single, well-trained point person were reached. But students inter- who can lead them through the pro-

cess. “The most pervasive problem measure of the problem came in the for students victimized by sexual Center’s review of 214 investigations assault on campuses,” he says, “is in the past decade by the Education a lack of support structures for vic- Department’s Office for Civil Rights tims to come forward.” into suspected Title IX violations in- Title IX, the anti-discrimination volving sex discrimination in admis- statute, is best known for its appli- sions or grading, as well as cases of cation to women’s sports, but the harassment and assault. The Center regulations implementing it require found 16 cases involving allegations grievance procedures that provide of perceived institutional barriers to for “prompt and equitable resolu- pursuing sexual assault complaints. tion of student and employee com- According to its own published plaints.” The law leaves room for guidelines, the Office for Civil Rights interpretation, and in 2001 the Edu- avoids finding schools in violation of cation Department’s Office for Civil the statute when it can find a way to Rights issued additional guidance. If cooperate with schools to fix prob- a school knows — or even if it should lems, but it found institutions with know — of possible sexual harass- no coordinator, no clear policy for ment, including assault, it must take handling sexual assault complaints, “immediate and appropriate steps to or alleged victims who were not in- investigate or otherwise determine formed of their right to pursue disci- what occurred and take prompt and plinary complaints. effective steps reasonably calculated The roadblocks to campus justice, to end any harassment, eliminate a however, are often more subtle than hostile environment if one has been that, says Diane Rosenfeld, a Har- created, and prevent harassment vard law professor who specializes from occurring again.” It is also this in Title IX law. They can come in the guidance that mentions that schools form of a dean’s apparently innocu- must designate a coordinator for ous suggestion to get counseling, or Title IX responsibilities — the point take a semester off, rather than risk- person Carter describes. ing a campus judicial process that A school’s failures to comply with won’t succeed. Title IX can place daunting obstacles “As I see it,” she says, “that’s a in the paths of students who wish to way of silencing victims and keeping pursue disciplinary proceedings. A these cases quiet.”

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 40 Troubling Tale at SUNY or to the campus police, or to the New Paltz New Paltz police, or to the hospital. I wouldn’t have said a word to any- In December 2007, Elizabeth Ryan, body right from the start,” she says. who was finishing up her first semes- “It was insulting. This guy had just ter on the New Paltz campus of the raped me … and that’s her answer?” State University of New York, was Insulting or not, the dean’s re- summoned to speak to the Dean dean sponse — which Eaton does not dis- of Students students in the austere pute — may have been illegal, say Haggerty Administration Building. lawyers familiar with Title IX. “You The dean’s office had just learned never say your option is to do noth- she filed a police report alleging that ing, because the institution doesn’t she was raped by another freshman have the option of doing nothing,” at an off-campus fraternity house. says Kate Clifford, a partner in the (Elizabeth Ryan is not her real name; law firm Schuster & Clifford, LLP, she has asked to use a pseudonym to which provides training to universi- protect her privacy.) ties on compliance with the anti-dis- Ryan says she immediately knew crimination law. that what had happened to her was Investigation is the school’s first rape. The nurse who administered responsibility, regardless of whether the rape kit, and others who heard a student demands it, or whether po- her story, seemed shocked, Ryan lice are conducting a criminal inves- recalls, by the trauma that she con- tigation, according to the 2001 Office veyed, and by the bruises on her for Civil Rights guidance. breasts. But when she told the story The dean went on to list other to the dean, a veteran student affairs options, each no more satisfying to administrator named Linda Eaton, it Ryan. Dean Eaton could bring the al- was Ryan’s turn to be shocked. One leged attacker into her office, to let of her options was to “do nothing,” him know that what he had done was she says the dean told her. wrong. Or the two freshmen could Even now, Ryan, 20, has a hard participate in a mediation. time rationalizing that response. Though not illegal, mediation “If I wanted to do nothing, I would for resolving sexual assault cases have kept my mouth shut,” she says. is strongly discouraged in official “I wouldn’t have gone to my RA, recommendations from the Justice

and Education Departments. Eaton one who did this off your campus?” denies pushing mediation, citing asks Ryan. “Why would she be push- school statistics showing that no stu- ing mediation, pushing me to do dent has chosen to resolve a sexual nothing? It finally dawned on me assault case through mediation in that this was about protecting the the past decade. But the Education school’s image.” Department’s Office for Civil Rights In an interview with the Center, guidance calls it inappropriate “even Dean Eaton said she gave Ryan the on a voluntary basis.” same standard list of available op- “You never, ever, ever have any tions she gives to all alleged victims. kind of mediation in sexual assault The dean did not remember the stu- cases,” says Clifford, echoing what dent saying she wanted a campus counselors, advocates, and lawyers hearing. told the Center repeatedly, explain- “Part of not re-victimizing the vic- ing that mediation presumes an tim is to lay out all of the options that equality of power that is missing in are available to them,” says Eaton, domestic and sexual violence cases. who adds that she could not have Ryan felt discouraged from pursu- predicted Ryan’s response. By giving the two options she most wanted ing options, “you’re giving them the — campus judicial proceedings and power and the choice to make a deci- criminal charges. “She made every- sion in terms of what they would like thing I’d wanted to do seem … like a to do.” hassle,” she says, referring to Eaton, Eaton seemed unaware that Title and recalling that the dean cautioned IX obligated an investigation into her that campus hearings would be sexual assault reports, and said she difficult for her, and that they would had not been trained on the legisla- have to wait until the following se- tion. The school’s director of media mester, after winter break. The dean relations, Eric Gullickson, stresses told her to take time to think about that the school was in compliance it, and come back again the next day. with Title IX, and says that coordina- Instead, Ryan canceled their tion was left to the associate athletic meeting and withdrew from SUNY, director because “[o]ur work with convinced that her school would not Title IX has been with respect to ath- help her. letic participation by women.” “How could you not want some- New Paltz maintains that faculty

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 42 and staff did what they could to keep Overcoming Perceptions, Ryan safe, by issuing a no-contact Fighting Roadblocks order between the two students and Segawa, president of the student af- directing her to counseling, and could fairs administrators group, and dean do nothing else without her participa- of students at the University of Puget tion and her continued attendance at Sound, says that college and univer- the school. Eaton vigorously denies sity administrators are increasingly the contention that the school was aware of perceived roadblocks for more concerned with its own reputa- students reporting rape and are do- tion than with a student’s well-being. ing what they can to address them. “I get every single police report that’s initiated on this campus. I con- “Most institutions want to be very tact students. I reach out to them,” responsive and supportive, but there says Eaton. “I feel as though if I had may be reasons that perception ex- an alternative motive, I wouldn’t ists,” he says. have reached out to her.” Segawa suggested that a lack of Few of the roughly 8,000 students visibility of the available resources at SUNY New Paltz have admitted an and ignorance of the avenues avail- interest in pursuing disciplinary pro- able for students accounts for some ceedings in sex offenses, according of that perception. He disputes the to statistics the school provided to idea that it is in the interest of the the Center. Since 1998, only six stu- school to keep barriers in place in or- dents have reported a sexual assault der to keep rape statistics from going to the office responsible for initiating up. Puget Sound often reports zero those proceedings. Of those, three sex offenses, an “absurd, very low cases resulted in a campus hearing. number” he has trouble explaining Just one punishment has resulted to parents. “The reality is we know it from a sexual assault case — an ex- isn’t zero, but we don’t have another pulsion in 2002. number we can give them.” From the Justice Department- Colleges and universities’ efforts funded study, a college the size of to produce more accurate numbers SUNY New Paltz could estimate also can backfire. that more than 1,700 of its female Char Kopchick, assistant dean students were victims of rape or at- of students at Ohio University, says tempted rape in that 11-year period. that her university’s efforts at in-

creasing sexual assault reporting 2003 investigation of alleged Title IX rates several years ago achieved just violations resulted in a distinct rise in the opposite effect. The university rape reports. “If they want counsel- put in place a mandatory reporting ing or to pursue disciplinary action requirement — meaning that all fac- or criminal charges and the school ulty and staff were obligated to re- supports them, they’ll do it,” he adds. port a sexual assault to police, unless they were counselors or health Struggling with the care providers specifically bound by Aftermath privacy rules. As a result, Kopchick says, students stopped showing up. Elizabeth Ryan, who now lives back “Now they know there’s going to be at home with her mother, still strug- an investigation,” she says. “What we gles with panic attacks, and has had find with a lot of survivors, they’re not a hard time regaining her footing ready for that. … Sometimes it takes since leaving SUNY New Paltz. a person six months before they’re Her alleged attacker, meanwhile, willing to go forward. Sometimes they is back in New Paltz living the life of never want to do anything.” a typical college student. Visited by Carter, the public policy director a reporter one Thursday last fall, he of Security On Campus Inc., cau- was just getting out of bed at 3 p.m. tions schools against tipping the bal- to make himself bacon. To this day, ance too far toward either ignoring he says, he has never told his parents victims’ wishes by pushing them to or his frat brothers that New Paltz take action, or, conversely, blithely town police questioned him about assuming a victim would not wish the reported rape. The investigation to move forward with campus dis- is still officially open, but inactive. ciplinary charges without giving her Detective David Dugatkin, who was all the information needed to make assigned to the case, says that af- a decision. ter speaking to both alleged victim “If victims know they’ll be sup- and perpetrator, there were enough ported and believed, they’ll come for- “ambiguities” about the issue of con- ward,” Carter says. He points to suc- sent that he referred the case to the cesses at places like Harvard, where District Attorney’s office rather than a coordinated effort to improve re- making an immediate arrest. Ryan sponse to rape victims following a did not pursue it. Kevin Harp, the

Ulster County assistant district at- ing the impression that he would torney who spoke with Ryan, said take action. he invited her to meet with him, but As they walked out of the office that he never heard back from her. and peered into a sea of young male He says he presented her a realistic faces, Wright’s mother remembers account of the steps involved if she thinking, “Is it you? Is it you?” decided to pursue charges, and said But the lawsuit contends that in- he did nothing to discourage her. stead of investigating, the school The accused student firmly main- left the case entirely in the hands tains that sex was consensual, adding of a local police detective, a Title that he kissed Ryan goodbye at the IX violation. The family alleges that end of the night. He thinks the cops the detective, James Nawoichyk, a believed him. “At first I was nervous part-time instructor at Dominican and scared, because nothing like that College, was “hopelessly conflicted,” had ever happened to me before,” he and failed to conduct a thorough in- says. “But after I was questioned by vestigation. The police log shows the police, nobody ever contacted me that before closing the investigation about it again, and that was it.” His around the time of Wright’s death, only gripe, he says, is with the school. the detective did not question Fegins He believes it was unfair of SUNY or Thorne, who had hired lawyers, or New Paltz to issue him a no-contact inspect the dorm room where the al- order forbidding him from entering leged rape had taken place. the dorm where Ryan lived. After all, Nawoichyk declined to com- nobody from the school ever both- ment because of the pending lawsuit ered to ask him what happened. against Dominican, but Orangetown That’s a complaint his accuser Police Chief Kevin Nulty has told a shares. local newspaper, The Journal News, In Megan Wright’s case, it ap- “The department stands behind the peared initially that the school would officer and the integrity of the inves- investigate. Dean John Prescott met tigation.” her within half an hour, was polite, Never once in four meetings asked questions, and suggested that Wright’s mother had with Dean Wright receive counseling. He said Prescott over the summer did the that someone from the school would dean mention the possibility of the watch the surveillance video, leav- sort of on-campus judicial proceed-

ings outlined in the handbook and Lynch, transferred to Ramapo Col- required by law. lege, where he plays on the basket- Unable to get any comfort from ball team. her school, or assurance that she In June 2008, the New York Of- would be safe from the alleged at- fice of the Attorney General, after an tackers, Wright did not return to the investigation initiated at the urging college in the fall. On her last visit, of the family’s powerhouse lawyer says McGrath, her daughter tried to Gloria Allred, fined Dominican Col- see the college president, but was lege $20,000 for fraudulently under- told she was unavailable. “They were reporting crime statistics. Among making her feel like she wasn’t worth other things, the school had failed to it — the police, the school. The peo- take appropriate account of Wright’s ple that you think you’re going to be rape report. As part of a settlement, able to turn to, to make things right,” the college agreed to appoint a Title says McGrath. IX coordinator. The lawyer for Dominican College, By the time she learned that crimi- Semprevivo, says without elaborating nal charges would probably not pan that contrary to the allegations laid out, the light had left Wright’s eyes, out in the complaint, the school did her mother says. She had stopped investigate. He says the school can- singing around the house and goof- not comment on disciplinary action ing off like she used to. In the modest against students, because of privacy home where her daughter lived and concerns. Certainly, Wright was never died, McGrath sits beneath an out- asked to testify in any hearing. Roc- size photo of Wright as a baby, and co, Wright’s friend, says no one from beside others of her in a prom dress, the school asked her any questions. and as a kid — photos she talks to Hill, the student accused by Wright’s before bed. family of conspiring in the incident, “No wonder why so many girls says he was never questioned or dis- don’t come forward. They see what ciplined by the school. He returned to happens. They see,” says McGrath, the school the following fall before “how they are attacked all over dropping out for financial reasons. again.” n The other two Dominican Col- lege students withdrew, too, for rea- Staff writer Kristen Lombardi con- sons that are unclear. One of them, tributed to this article.

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 46 Campus Sexual Assault Statistics Don’t Add Up T roubling Discrepancies in Clery Act Numbers By Kristen Lombardi and Kristin Jones Published Online | December 3, 2009

seul x a assault pre- Integrity has found that limitations vention program document- and loopholes in the federal manda- A ed 46 sexual assaults at West tory campus crime reporting law, Virginia University in a recent aca- known as the Clery Act, are causing demic year. But those 46 incidents systematic problems in accurately didn’t show up in the university’s an- documenting the total numbers of nual security report. campus-related sexual assaults. The A counseling and victim advoca- most troubling of these loopholes cy program at the University of Iowa involves broadly applied report- served 62 students, faculty, and staff ing exemptions for counselors who who reported being raped or almost may be covered by confidentiality raped in the last fiscal year. Those protections. Confusion over defini- incidents didn’t show up, either. tions of sexual offenses, as well as A victim advocate program at the law’s comprehensive reporting Florida State University compiled provisions, have created additional statistics on 57 sexual offenses problems. “When you talk to 10 dif- both on and off campus in 2008. ferent institutions,” explains Mar- Only a fraction of those incidents lon Lynch, president of the Interna- appeared in the school’s official tional Association of Campus Law crime statistics. Enforcement Administrators, “you Across the higher education almost find 10 different ways of re- community, such discrepancies are porting under the law.” not unusual. A nine-month inves- Available data suggest that, on tigation by The Center for Public many campuses, far more sexual of-

fenses are occurring than are reflected in the official Clery numbers. A Clinics Rate Center survey of 152 crisis-services programs and clinics on or near col- Their Campuses lege campuses requested incident numbers over the past year: 58 facil- The Center asked both on- ities responded with hard statistics. and off-campus clinics and Clery totals from higher education other crisis programs to rank institutions are theoretically sup- their experience, on a scale posed to include information from of one to five (one is poor; such service providers, but confu- five is excellent), how they sion remains over exactly who must would evaluate the response report. A comparison of the survey of their local college(s) to data with the schools’ previous five- student sex-assault victims. year average of official Clery totals The average ranking of the shows that the clinic numbers are 141 responding clinics was considerably higher, suggesting a systematic problem with Clery data 3.5. collection. Responses to the Center’s survey 50 46 found that 49 out of those 58 crisis- 44 services programs and clinics recorded higher reports of sexual offenses in a recent one-year period than the average yearly figure submitted by their schools in Clery 26 25 statistics from 2002 to 2006 — the last five years for which full Clery 16 data are available. At Florida State University, for instance, those 57 9 sexual assaults logged by the victim advocacy program are more than double the university’s average 26 0 sexual offenses recorded from 2002 Rank: 1 2 3 4 5 to 2006.

Some of the discrepancies are many victim advocates, Friedrichs explainable. Many clinics record adds, “We don’t think it [the official higher statistics because they data] tells a story that is understand- serve a broader clientele than the able.” schools’ student populations or because some of the incidents oc- Clery Confusion curred elsewhere — particularly off campus. And crisis counselors say The Clery Act requires some 7,500 they routinely document reports colleges and universities — nearly from students who were sexually 4,000 of which are four-year public assaulted on spring break, raped in and private institutions — to dis- high school, or molested as children close statistics about crime on or — none of which fall under Clery near their campuses in annual secu- reporting requirements. But many rity reports. Many provisions have survey respondents affirmed asser- evolved since the law passed 19 tions from critics that colleges and years ago, but what hasn’t changed universities are ducking bad public- is Clery’s requirement that schools ity by exploiting weaknesses in the poll a wide range of “campus securi- Clery Act and ignoring their clinic ty authorities” when gathering data. numbers, thus keeping official sta- That designation includes a broad tistics low. array of campus programs, depart- “Clery, in our minds, doesn’t do ments, and centers, such as student what it was intended to do,” says health centers, women’s centers, Mary Friedrichs of the Office of Vic- and even counseling centers. The tim Assistance at the University of designation also applies to officials Colorado at Boulder. The 42 sexual who supervise students — deans, assaults documented by her pro- coaches, housing directors, judicial gram in one recent year didn’t ap- affairs officers, to name a few. Ex- pear in the university’s Clery data perts on the law say that any center because, as certified counselors or program set up by an institution with confidentiality exemptions, to respond to crime victims and to her staff doesn’t report them to the serve their needs should be desig- campus police. By comparison, CU nated a campus security authority, recorded an average of 14 sexual of- requiring Clery reporting. Only li- fenses from 2002 to 2006. Echoing censed mental-health and pastoral

counselors are explicitly exempt collecting data. Some submit only from Clery reporting requirements. reports from law-enforcement of- In theory, those stipulations ficials. In August 2004, Yale Univer- should make for comprehensive sity became the subject of a com- crime reporting. At the University plaint after it was discovered to be of Iowa, a compliance team, led doing just that. Five years later, the by the public safety department, U.S. Department of Education has collects documentation from non- yet to finish its review; a depart- police campus authorities and comment spokesperson declined to piles statistics. According to Asso- comment on the pending inquiry. ciate Dean of Students Tom Baker, Evidently, though, the complaint who oversaw the process for years, has sparked some changes. Peter the university distributes an e-mail Parker, who heads Yale’s sexual ha- letter seeking key details on sexual rassment grievance board, began assaults and other crimes reported forwarding sexual assault data to to campus authorities in a half-doz- the school’s official Clery reporter en offices and programs, including in 2007. “Before that,” he confirms, the school’s sexual misconduct re- “nobody had asked us to compile sponse coordinator. The law re- our reports.” quires schools to solicit informa- Other schools submit inaccurate tion from local police departments, sexual assault statistics — in some and Iowa’s team contacts four of cases inadvertently; in others cases, them. intentionally. Nearly half of the 25 But the data gathering isn’t al- Clery complaint investigations con- ways meticulous. In fact, a 2002 ducted by the Education Depart- study funded by the U.S. Depart- ment over the past decade deter- ment of Justice found that “only mined that schools were omitting 36.5 percent of schools reported sexual offenses collected by some crime statistics in a manner that sources or failing to report them at was fully consistent with the Clery all. In October 2007, the department Act.” A Center examination of 10 fined LaSalle University, in Philadel- years worth of complaints filed phia, $110,000 for not reporting 28 against institutions under Clery crimes, including a small number of shows that the most common prob- sexual assaults. (The university ap- lem is that schools are not properly pealed the decision and then settled

for $87,500, without admitting it campuses,” says David Bergeron of was at fault.) In April 2005, Salem the department’s Office of Postsec- International University, in West Vir- ondary Education, which monitors ginia, agreed to pay the department Clery compliance. Still, 27 colleges $200,000 in fines after never report- reported one or two non-forcible ing a sexual offense in its Clery re- sex offenses in their 2006 Clery data. ports, even though the school itself School officials and watchdog had documented such offenses. groups agree that colleges have im- There’s also been misclassifica- proved Clery reporting over the past tion of sexual assaults. Schools two decades. Dolores Stafford, po- can wrongly categorize reports of lice chief at George Washington Uni- acquaintance rape or fondling as versity and a national expert on the “non-forcible” sexual offenses — a Clery Act, has trained campus po- definition that should only apply to lice officers and administrators on incest and statutory rape. Five of the law since the late 1990s, and has the 25 Clery audits found schools seen what she calls “a sea change” in were miscoding forcible rapes as attitudes, which she attributes to im- non-forcible instead. In June 2008, proved training and guidance from Eastern Michigan University agreed the Education Department. These to pay the department $350,000 — days, she says, “There are less inten- the largest Clery fine ever — for a tional and egregious violators.” De- host of violations, including miscod- partment audits still reveal schools ing rapes. In February 2002, officials getting in trouble over their data, determined that Mount Saint Mary she explains, “but not a whole lot of College, in New York, had incor- areas where people are purposely rectly reported two sexual offenses underreporting or over-reporting.” as non-forcible; the school had to correct the error. The problem has Are the Numbers grown so prevalent that the depart- Believable? ment now calls schools whenever they submit even one report of a Indeed, today’s issues may be sub- non-forcible sexual offense. tler than that. Rape generally ranks “I don’t know anyone who’s read among the most underreported of the definitions [who] can claim there all crime statistics, experts say. are any non-forcible sex offenses on But critics point out that the huge

percentage of schools reporting no ment administrators, and other cam- incidents whatsoever indicates a pus police chiefs believe all those serious problem with Clery data col- zeros most likely reflect something lection. In 2006, in fact, 3,068 four- else: Most rape victims don’t report year colleges and universities — 77 the crime in the first place. The 2002 percent — reported zero sexual of- Justice Department-funded study fenses. Another 501 reported just has actually pegged the number of one or two. college women who report their All those miniscule totals look rapes to campus police or other of- like red flags to watchdog organiza- ficials at just under five percent. It tions. “Find any school with a zero, could be that some schools with low and you’ll find problems with Clery sexual assault statistics don’t do a reporting,” asserts Margaret Jakob- good job at encouraging student vic- son, a victims’ advocate who’s tes- tims to come forward. Or it could be tified before Congress about issues that some do — and still end up with with Clery compliance. In the late zeros. After all, one limitation of the ’90s, Jakobson, along with Security Clery Act is that statistics reflect on Campus, a watchdog group, filed “official” reports. In other words, some of the earliest Clery Act com- a victim has to tell a campus secu- plaints after identifying students rity authority for a sexual assault to who had reported being raped on count. campuses touting zeros. “We get the feeling that people “It strains believability to think would prefer that we would report that those numbers could actually a lot of sexual assaults even if we be true,” says Mark Goodman, for- were making it up,” observes Staf- mer director of the Student Press ford, the George Washington chief, Law Center, which has long lobbied “but I can only report what I know.” to close Clery loopholes. He, like Another limitation of the Clery many critics, suspects that some Act: it counts only those crimes oc- schools are intentionally misinter- curring on or near campuses, and preting their obligations under Clery in school-affiliated buildings like and weeding out reports in order fraternity houses. The initial think- to protect their reputations as safe ing behind this narrow geographic campuses. focus was that off-campus crimes But Lynch, of the law enforce- would inevitably be documented by

local police, experts say. But that Rob Porter, because certified coun- means that Clery statistics don’t in- selors make up the staff — and clude such settings as off-campus they have that privacy exemption. apartments, where most campus- Instead, the school explains in a related rapes are believed to take report footnote that the advocacy place. Last year, Jacqui Pequignot, program has its own statistics. who heads the victim advocate And that’s more than what some program at Florida State, recorded schools do with counselors’ reports. just nine sexual offenses on or near At Texas Tech University, coun- campus, as compared to 48 off cam- selors don’t track the details of an pus. Pequignot, who estimates that alleged assault — its time, its loca- 36,000 of FSU’s 42,000 students live tion — needed for Clery reporting in apartments more than a block purposes. Jack Floyd, who compiles from the university, notes that crit- the Clery data, says counselors are ics often suspect misreporting encouraged to forward information whenever they don’t see huge num- about sexual assaults and other bers of campus sexual assaults. “But crimes to campus police. But, he sometimes,” she says, “it’s really just affirms, “Nobody has returned a re- about the fact that the numbers are port form since I’ve been here,” be- greater off campus.” ginning in 2001. “Confidentiality inhibits our requirement to do so,” says Eileen Na- See No Evil than, of the Texas Tech counseling Some schools ignore the reports center, explaining why the staff do of sexual assaults they do have. not submit reports. At the University of Iowa, alleged In fact, some counselors believe victims are instructed to contact the fine print of the Clery Act en- the Rape Victim Advocacy Program courages them not to report. Under for medical and counseling ser- the law, licensed therapists and pas- vices. Housed on campus, the ad- toral counselors are the only campus vocacy program records all calls, employees excluded from reporting and categorizes incidents on or off requirements. Schools can still use campus. But these numbers don’t aggregate information — minus appear in the university’s security names and other identifying infor- report, confirms associate counsel mation — on sexual assaults from

counseling centers, experts say. And would satisfy Clery requirements. interviews with survey respondents But they don’t end up in official data, reveal that some colleges designate as per school policy, even though a center staffer as a campus author- West Virginia counts rape reports ity for Clery purposes. Others offer forwarded to campus police by non- a blanket exemption to the entire police campus authorities. counseling staff, however, fueling “It’s important to understand that, criticisms that administrators are by definition, what Deb is collecting merely exploiting a loophole to keep is survey data,” explains Bob Rob- official statistics low. Even Educa- erts, police chief at West Virginia tion Department officials suggest as University, “and we do not take sur- much. vey data because it is anonymous.” “Some institutions may try to Roberts is not a stranger to Clery stretch that [counselor] privilege,” reporting disputes; in March 2004, Bergeron says. West Virginia became the subject One of the schools that has faced of a Clery Act complaint after three controversy on that front is West whistleblower police officers al- Virginia University. Deb Beazley is leged that the university was mis- the sexual assault prevention edu- coding crimes. Last September, the cator at WVU; she is not a licensed Education Department found some counselor. Beazley helps alleged vic- problems with the way the univer- tims navigate services and heads the sity had dealt with sexual assaults countywide sexual assault response — misclassifying forcible and non- team that services the campus. She forcible offenses, and failing to in- maintains what she calls a “univer- clude sexual assault reports. In its sal reporting system” of incidents response to the department’s pre- culled from her records, as well as liminary findings, dated October from university faculty and staff. 30, 2008, the university admitted She classifies the anonymous, third- the errors and outlined recent steps party reports based on incident to bolster its record-keeping. But date, time, and location, either on counting Beazley’s anonymous re- or off campus. She even records the ports isn’t among the improvements. birth date of alleged victims to avoid “You have to compare apples to double-counting. By all accounts, apples,” contends Roberts, who now she compiles numbers in a way that trains campus officials around the

state on the finer points of the Clery every circumstance that everyone Act, “and other campuses I know of on a campus would ever encounter,” are not reporting anonymous data.” he adds. Yet some schools clearly are — But there’s little doubt that the Florida State, for one. Experts say differing interpretations of the law colleges should count numbers from are sowing confusion — with one any campus program set up for vic- school submitting sexual assault tims to report crimes and seek ser- statistics beyond what’s required vices. Stafford, the George Washing- and another the bare minimum. Ul- ton chief, collects statistics from her timately, these loopholes, coupled university’s response team, its coun- with the law’s limitations, can ren- seling center, and its health center in der Clery data almost meaningless. order to “give people a full picture Victim advocates point out that the of what’s happening on the campus.” schools they believe are reporting Still, she stresses that schools ignor- the most accurate sexual assault ing these numbers are not necessar- numbers — the 10 percent who re- ily violating the law. ported three or more rapes in 2006 “It is not clear in the [Education — now have to compete with all Department’s Clery Act] handbook those schools touting zeros. or in the law … that victim advo- “It’s almost like UMass gets pe- cates and sexual assault services co- nalized for doing it correctly,” notes ordinators are required to report,” Rebecca Lockwood, who heads rape she says. “It’s a big weakness right crisis services at the University of now.” Massachusetts Amherst, where her And one not likely to change any program numbers are gathered for time soon. According to Bergeron, Clery purposes. In 2006, UMass Am- the Education Department has to herst ranked among just 61 schools, allow some room for schools to in- or 1.5 percent, documenting campus terpret who actually constitutes a sexual assaults in the double digits. campus security authority; after all, As Lockwood sees it, “I’d like to see it has to regulate everything from a the schools that report zero be held for-profit technical school to a four- accountable.” n year university. He doubts it’s possible to write a department regula- Reporting Fellow Claritza Jimenez tion answering “every question in contributed to this article.

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 55 A Lack of Consequences For Sexual Assault Students Found “Responsible” Face Modest Penalties, while Victims are Traumatized By Kristen Lombardi Published Online | February 24, 2010

In my opinion … IU not only ONLINE: VIDEO INTERVIEWS harbors rapists, but also completely disregards, ignores, M argaux J. and fails women. reflects on

the process nda i na University freshman Margaux J. unleashed these experienced fiery words in May 2006 after a by victims I www.publicintegrity.org/ of sexual campus judicial proceeding on her investigations/campus_ allegations of rape. It wasn’t that assault assault. the two administrators running the proceeding panel didn’t believe her. ing semester — a summer semester, In fact, they did. The panel found during which he was unlikely to at- the student she accused was “re- tend school anyway. sponsible” for “sexual contact with Hearing the decision, she rushed another person without consent.” back to her dorm to pen a letter to IU School administrators rank the dis- deans, back to the scene where, she ciplinary charge among the most says, her alleged assailant raped her serious at IU. while she passed in and out of con- It was the penalty that left Mar- sciousness from intoxication. Livid gaux sputtering with rage. The panel over the penalty, Margaux fired off a recommended suspending her al- three-page letter to IU deans, urging leged assailant only for the follow- a review. In it, she painted the 60-day

suspension as a sign of just how ca- campuses can face little or no con- sually colleges and universities treat sequence for their acts. Yet their cases of alleged sexual assault. She victims’ lives are frequently turned pleaded for harsher punishment. upside down. For them, the trau- Margaux (whose last name is ma of assault can be compounded withheld at her request) would by a lack of institutional support, eventually get her wish — but only and even disciplinary action. Many after her parents badgered the uni- times, victims drop out of school, versity to revise its penalty. And while their alleged attackers grad- only after she left Bloomington, In- uate. Administrators believe the diana, for good. sanctions commonly issued in the college judicial system provide a thoughtful and effective way to hold Disappointing culpable students accountable, but Consequences victims and advocates say the pun- A year-long investigation by the ishment rarely fits the crime. Center for Public Integrity demon- Additional data suggests that, on strates that the outcome in Mar- many campuses, abusive students gaux’s case is far from unusual. face little more than slaps on the The Center interviewed 50 experts wrist. The Center has examined familiar with the campus disciplin- what is apparently the only data- ary process, as well as 33 female base on sexual assault proceedings students who have reported be- at institutions of higher education ing sexually assaulted by other nationwide. Maintained by the U.S. students. The inquiry included a Justice Department’s Office on Vio- review of records in select cases; lence Against Women, it includes a survey of 152 crisis services pro- information on about 130 colleges grams and clinics on or near college and universities receiving federal campuses; and an examination of funds to combat sexual violence 10 years of complaints filed against from 2003-2008, the most recent institutions with the U.S. Education year available. Though limited in Department under Title IX and the scope, the database offers a win- Clery Act. The probe reveals that dow into sanctioning by school ad- students deemed “responsible” for ministrations. It shows that colleg- alleged sexual assaults on college es seldom expel men who are found

“responsible” for sexual assault; spondent summed up the sentiment indeed, these schools permanently this way: kicked out only 10 to 25 percent of Judicial hearings almost NEVER such students. result in suspension, let alone ex- Just more than half the 33 stu- pulsion. … Alleged perpetrators still dents interviewed by the Center remain on campus, in fraternities, said their alleged assailants were and on sports teams. found responsible for sexual as- By contrast, some students, in- sault in school-run proceedings. cluding Margaux, reported dropping But only four of those student vic- out because of what they considered tims said the findings led to ex- lenient discipline for their alleged pulsion of their alleged attackers perpetrators, whom they feared see- — two of them after repeat sexual ing on campus. Others said their offenses. The rest of those victims alleged attackers violated school- said discipline amounted to lesser imposed sanctions, often with little sanctions, ranging from suspension repercussion. for a year to social probation and College administrators stress that academic penalties, leaving them the sanctioning in disciplinary mat- feeling doubly assaulted. An exami- ters reflects the mission of higher nation of Title IX complaints filed education. Proceedings aren’t against institutions with the Edu- meant to punish students, but rath- cation Department revealed simi- er to teach them. “We’d like to think lar patterns: Eight students whose that we can always educate and complaints stem from reported hold accountable the student,” says acts of “sexual assault,” “rape,” Pamela Freeman, associate dean of and “sexual misconduct” objected students at Indiana University. IU to the school’s punishment of their officials defended suspending Mar- alleged perpetrators. All but one gaux’s alleged attacker as, in effect, of these eight complaints involved a teachable moment, according lesser sanctions than expulsion and to interviews with the Center and three ended in no punishment af- documents from a federal investi- ter responsible students appealed. gation into the school’s handling of Survey respondents reinforced the the case. belief that schools fail to hold abu- But victim advocates question sive students accountable. One re- this notion. “There’s no evidence to

suggest that a college campus can this day, the student, who spoke rehabilitate a sex offender,” says with the Center on condition of ano- Brett Sokolow, of the National Cen- nymity, maintains that “Margaux ter on Higher Education Risk Man- and I had consensual sex.” agement, which consults schools on Over two hours, in testimony sexual assault policies. “So why are before the panel, some details we even taking that chance?” emerged clearly: Margaux and the alleged assailant agreed they encountered each other in the hall Margaux’s Case after a late night, drinking; she Margaux, a reserved cellist whose was crying, searching for her keys, black curls frame moon-shaped when he offered help; he opened cheeks, had doubts about the pro- her door. But they gave conflicting cess even as her informal proceed- accounts of what happened next. ing took place on May 4, 2006. She The accused claimed Margaux in- reported being raped on April 6 by vited him into her room and read- a fellow freshman who lived on her ily “hooked up.” She countered he co-ed floor. Within days, she filed a followed her inside and ignored her report with IU police; then, a com- efforts to resist. “I began passing plaint with IU residence staff. Now, out,” she wrote in her official state- she sat in an office with a school ad- ment, “and when I would come to vocate, testifying by speaker phone. again he would still be on top of Nearby, the alleged assailant — a me.” taciturn, stocky athlete who had The proceeding devolved into seen IU’s disciplinary process be- what IU officials, in the federal doc- fore — faced a two-member panel uments, called “a shouting match.” in a separate conference room, his The student’s father interrupted tes- father beside him. timony, despite IU rules prohibiting Panel members — a residence “advisors” to speak, intimating the coordinator and a judicial affairs two had a one-night stand, “saying administrator — presented the that kids were being kids.” complaint to the accused student, Ultimately, they agreed on a key who one of them later described in detail: Margaux had been intoxicated. records from the federal inquiry as That stipulation became the deciding “dismissive, stating ‘whatever.’” To factor for the panel. “That means he

knew she was incapable of consent,” Indiana, it’s not rape when you have says Andrew Chadwick, the top ad- sex with someone who cannot give ministrator on the panel who then consent.” worked at IU’s Office of Student Ethics and Anti-Harassment, “yet he A College Judicial went ahead and had sex with her.” Process, Not a Court The student now disputes this fact, telling the Center, “She seemed fine Administrators stress that the col- to me, not drunk.” His father, who ad- lege judicial system is, as IU’s Free- mits speaking out at the proceeding, man, who heads the Office of Stu- says alcohol use should have cast dent Ethics, says, “not the same doubt on Margaux’s credibility. thing as a court of law.” Unlike The proceeding outcome would criminal courts, which enforce rape be muddied by the intermingling of statutes, college proceedings en- several disparate terms. Panel mem- force “conduct codes” that list pro- bers found the student responsible hibited acts like “sexual assault” for what Chadwick, according to the or “sexual contact.” Their hearing federal records, described as “sexu- boards operate under different pro- al assault (power differential).” The cedural rules and evidence stan- so-called differential: she was clear- dards. Even their mission differs ly drunk and essentially powerless; from the criminal justice system: he, while drinking, was not. Yet at Verdicts are educational, not puni- the proceeding, as one of the panel tive, opportunities. Alleged student members later described it, the find- victims may expect punishment ing was “sexual misconduct.” Offi- from campus proceedings, says cially, the charge was “sexual con- Jerry Price, vice chancellor for stu- tact.” Chadwick, now on leave from dent affairs at Chapman University, IU and working as a student affairs in California, “but there is nothing consultant, attributes this discrep- in our mission about justice.” ancy to a lack of evidence that phys- Critics say the college system is ical violence had occurred. “At IU,” ill-equipped to handle sexual assault he adds, “we considered this charge cases. Schools may designate an “in- just as severe as sexual assault.” vestigator” to assess a complaint’s Margaux saw it differently, refer- merit. But they cannot subpoena re- ring to legal statutes: “Apparently, at cords and witnesses to sort out con-

flicting testimony. Many train hearing tion. Interviews and records in these boards on policies for adjudicating cases show that other minor penal- alleged assaults, but those sessions ties include orders that perpetrators can only begin to address complexi- write a letter of apology, or make a ties. “Why would we expect universi- presentation to a campus advocacy ty judicial boards to handle [difficult group, or write a research paper on cases] right?” asks David Lisak, of sexual violence. Administrators note the University of Massachusetts-Bos- that they sometimes issue multiple ton, who has trained administrators sanctions. For instance, they may on combating sexual violence. require a no-contact order, a housing Many administrators agree they ban, and classes on sexual consent. would rather the criminal justice By contrast, the database shows that system take on cases involving cam- colleges rarely expel culpable stu- pus rape allegations — if only it dents in these cases — even though would. Prosecutors often shy away the Justice Department encourages from such cases because they are its campus grant recipients to train “he said, she said” disputes absent judicial panels to hand down “appro- definitive evidence. priate sanctions, such as expulsion.” But if determining guilt is difficult, “I find that absolutely outrageous,” college administrators say, so is the says Colby Bruno, managing attor- sanctioning process. As much as 75 ney at the Victim Rights Law Center, to 90 percent of total disciplinary in Boston, referring to such sanc- actions doled out by schools that re- tions. Bruno, who represents alleged port statistics to the Justice Depart- victims in these proceedings, has ment’s Office on Violence Against routinely seen responsible students Women amounted to minor sanc- slapped with deferred suspensions, tions, although it’s unclear from the probations, even no penalties at all. data what the nature of the “sexual “I don’t understand in what crazy uni- assault” offenses were. Among those verse rape or sexual assault doesn’t modest sanctions: reprimands, coun- warrant expulsion,” she adds. seling, suspensions, and community Administrators say such informa- service. The most common sanction can be misleading. Typically, an tioning reflected what the data calls official considers several factors in “other” restrictions — alcohol treat- sanctioning: the student’s disciplinary ment, for example, or social proba- record, the institutional precedent,

and the violation. Yet this last ele- ONLINE: AUDIO CLIPS ment can cover everything from fondling to forced penetration. Not every A riel Brown describes the sexual offense deserves the harshest punishment assessed against her penalty, they argue; not every cul- alleged assailant after Bowdoin pable student is a hardened criminal. “There’s not a one-size-fits-all in these found him responsible for “the cases,” contends Rick Olshak, associ- charge of sexual assault.” The ate dean of students at Illinois State punishment consisted mainly of University. He says schools are more “non-academic suspension.” likely to expel in cases involving pen- www.publicintegrity.org/investigations/ etration without consent, and clear campus_assault intent. ”It’s the cases in the middle” — involving miscommunication and requested that the alleged assailant mutual intoxication — “that are more be suspended. Instead, he received difficult and that will result in less “non-academic suspension” — in ef- than expulsion,” Olshak adds. fect, social probation. Records show At times, though, even seemingly he was “removed from campus for all stringent sanctions can amount to lit- non-academic pursuits” — no hous- tle. In December 2007, Ariel Brown, ing, no activities. But Brown later then a junior at Bowdoin College, learned Tim Foster, Bowdoin’s dean reported being raped by a baseball of students, had made an excep- player in her dorm after an alcohol- tion: The athlete could attend home soaked party. Two months later, the baseball games. Brown’s mother — Bowdoin Sexual Assault and Mis- a Bowdoin alumnae — remembers conduct Board deemed the student complaining to Foster, who relayed responsible for “the charge of Sexual that the student had been in his of- Assault,” case records show. For fice, crying, because of the penalty. Brown, it was little consolation: A He was allowed to march in the school investigation had already dis- May 2008 graduation; according to missed her allegations of forced anal records, though, his diploma was sex, making the finding solely for held for a year. Foster declined to “an act of oral sex.” (Ariel Brown is comment on Brown’s case, except a pseudonym to protect her identity.) to stress that “this matter did not During her proceeding, Brown involve any finding of rape.” The ac-

cused did not respond to several e- the perpetrator’s change in heart.” mails and phone calls seeking com- Holmes, who now works at North- ment. ern Illinois University, declined to “To allow someone who’s been discuss Margaux’s case. Chadwick, found responsible for sexual assault though, confirms that the alleged to continue to attend such an elite attacker’s turnaround from initially school is just awful,” seethes Brown, combative to a “‘what have I done?’ who transferred to Wellesley College. moment” gave them pause. “In student affairs parlance, he’s had a crit- ical moment in his life,” Chadwick Leniency in Exchange says. He defends their sanction as for Remorse “appropriate,” since they also issued In Margaux’s case, explanations of a no-contact order, and mandated the sanction by the panel’s top ad- alcohol classes and counseling. Ear- ministrator, Chadwick, did nothing lier, the student had been banned to temper her outrage. The official, from the dorm. “Those are pretty se- she remembers, painted a contrite rious sanctions for an 18- or 19-year- portrait of the alleged assailant, re- old person,” he adds. laying that he had, as one official The alleged perpetrator, for his later put it to the federal investiga- part, recalls panel members pres- tor, “showed remorse and admitted suring him to confess to Margaux’s that he had an alcohol problem.” account of the incident, “pushing me In an e-mail to the IU deans who into a corner.” Chadwick, he claims, oversee the judicial process, in- wanted him to admit to having a cluding Freeman, Chadwick cited drinking problem, though he says he this “break” as reason for limit- doesn’t. He relented because, in his ing the suspension to the summer. words, “I saw where they were go- “Through his self-discovery today,” ing.” He suggests that he was unlike- the administrator wrote, “I believe ly to go to summer school anyway. he still has hope.” Chadwick and By then, the student was well the residence coordinator, Molly known to IU disciplinary officials. Holmes, had intended to suspend The university had deemed him the student until January 2007, but responsible for two other previ- lessened the term, as Holmes stated ous violations — drinking alcohol in the federal records, “because of in his dorm, and punching another

student in a fight also investigated ter’s letter to IU’s board of trustees, by campus police for criminal bat- along with his own incensed letter. tery charges. Meanwhile, another His wife, Eva — an IU alumna, along IU dorm resident sent an e-mail to with nine of her relatives — called Margaux informally accusing the the governor’s office, as well as state same alleged perpetrator of sexual and federal politicians. “That IU assault. The woman claimed the ac- would give a slap on the wrist and a cused “has come into my room on suspension is outrageous,” Eva says. two occasions and forced himself “People go to jail for these crimes in upon me” and she offered, in the e- the real world.” mail to Margaux, to “back you up.” Days later, IU’s McKaig informed After her proceeding, Margaux Margaux that he had extended the sat in her dorm, penning that irate suspension for another two semes- letter to IU deans. Documents show ters. Her alleged assailant could re- she had objected to Chadwick that turn to campus in May 2007 — two the suspension was “not severe years before her scheduled gradua- enough.” That her alleged attacker tion. In the federal records, McKaig, would be allowed to return in the who has recently retired, stated that fall left her feeling “as if my assault he did not believe “a one-summer had been swept under the rug,” Mar- suspension was sufficient in this in- gaux recalls. But in her view, it also stance.” IU told federal investigators seemed to ignore his record — and that it did not receive Margaux’s let- the alleged attempted assault. The ter until after McKaig had made his second woman’s e-mail message had decision. McKaig did not respond to made its way to Chadwick, who did several calls and e-mails from the not factor her claims into sanction- Center seeking comment. ing because, he says, “it hadn’t been By the time Margaux received the a formal case.” news, though, she had already de- Hearing the decision, Margaux’s cided to drop out. parents immediately pressed the university for expulsion. Her father, Philosophy is ‘Not to Expel’ Michael, repeatedly contacted Rich- ard McKaig, IU’s dean of students, To IU deans — and their colleagues and urged the dean to do “the right elsewhere — the outcome in Mar- thing.” He forwarded his daugh- gaux’s case shows the college pro-

cess works; it ended in what Free- dents,” charges Bruno, of the Vic- man calls “a very strong sanction.” tim Rights Law Center, referring to Expulsion at many schools, includ- Lisak’s research. “Giving someone ing IU, seems anathema. For in- a deferred suspension is like giv- stance, IU officials have expelled ing someone carte blanche to do it only one of 12 students found re- again.” sponsible for alleged sexual assaults Some victim advocates argue that in the past four years, as compared anything less than expulsion — or to seven suspensions and four pro- a years-long suspension — violates bations or reprimands. “Our basic the Title IX federal law banning sex philosophy is not to expel,” con- discrimination in education. Under firms Freeman. The university will Title IX, schools must meet three re- kick out a student believed to be a quirements if they find a sexual as- threat, she says, yet “that does not sault has occurred: end a so-called mean that every single person found “hostile environment”; prevent its responsible for sexual assault gets future occurrence; and restore vic- expelled. They’re not all predators.” tims’ lives. “None of that says you But critics say that attitude fails to have to educate the offender,” says recognize a disturbing reality about Sokolow, of the Higher Education campus rape: Many incidents go be- Risk Management Center. And when yond “miscommunication” among punishment fails to fulfill these ob- two drunk students — a common ligations, adds Sokolow, who trains characterization among school offi- schools on the law, “That has the po- cials — to predatory acts. Lisak, the tential to violate Title IX.” U-Mass professor, has studied what Administrators note that the law he terms “undetected rapists” on col- does not require expulsion in sexual lege campuses. His research suggests assault cases or specify any punish- that over half of student rapists are ment. For them, the practice of com- likely repeat offenders who rape an bining penalties makes for effective average of six times. Yet administra- and legal sanctioning without jeop- tors, Lisak observes, “think of serial ardizing the educational mission. rapists as the guy who wears a ski But lawyers contend that colleges mask and jumps out of the bushes.” and universities are missing the “Schools that overlook this para- broader legal point: By not punish- digm are failing their female stu- ing culpable students, schools are

setting up student victims for years istrators found him responsible for of anguish because they have to en- “nonconsensual oral sex” and “non- counter their alleged assailants over consensual intercourse.” She re- and over. members Joe Puzycki, assistant vice “It’s really a question of entitle- president for student affairs, calling ment to education,” says Diane to inform her that the accused had, Rosenfeld, a Harvard law professor as records show, “accepted respon- who specializes in Title IX. Often, sibility.” But Tezak also learned that she notes, student victims become the school intended to sanction the deprived of this legal guarantee be- student, a senior, simply by delaying cause they choose to leave school his degree for a year, in what Penn rather than have to face their al- State records describe as “tempo- leged attackers, even accidentally. rary expulsion.” Days later, Tezak “Expulsion should be a given under ingested “a big handful” of sleeping Title IX,” Rosenfeld adds. She, like pills, landing in the hospital for five many critics, wonders how leaving days. Penn State records show she an alleged perpetrator on campus never attended a final meeting with would not perpetuate a hostile envi- Puzycki because of her hospital ronment. stay. Tezak says administrators nev- Certainly, the lives of alleged er gave her a chance to request or victims are upended. In April 2006, appeal the sanction. She ended up Angela Tezak, a former student at dropping out, and eventually trans- Pennsylvania State University, par- ferred. ticipated in an informal proceeding The alleged assailant, for his part, after reporting being raped in an off- remembers several meetings with campus apartment by a fellow stu- Puzycki, who, he says in an e-mail, dent. At the time, she struggled with “coerced me against my will to sign depression, and lived in fear of see- a document accepting sanctions ing her alleged attacker, rarely leav- even though I’m 100 percent inno- ing her apartment. “What he did recent.” The administrator, he claims, ally devastated me,” Tezak confides. explained that he could appeal Her proceeding proved equally Tezak’s complaint—which he calls devastating. Tezak expected the al- “baseless and wholly untrue”—yet leged assailant to face serious con- portrayed a formal hearing as futile, sequences after Penn State admin- and virtually guaranteed to end in

permanent expulsion. Rather than had been “an emotional wreck,” face such a prospect, the accused battling nightmares, barely sleep- says, he chose to “negotiate lesser ing. Friends of her alleged assailant sanctions.” He offered to do coun- harassed her in the dorm. “I was seling, for instance, in exchange for having all this trouble,” she recalls, being able to walk in his May 2006 “and here he got suspended.” Things convocation. would get worse when IU officials “The way I saw it,” he relays, “I took disciplinary action against her. was between a rock and a hard Weeks after her proceeding, Holmes, place and my choice was, ‘Which is the panel’s residence coordinator, the two lesser evils?’” Puzycki, he sent Margaux a letter charging her claims, told him the temporary ex- with alleged alcohol violations for pulsion would appear as “a black hosting dorm guests who had been mark” on his transcript for up to five drinking. The accusation turned out years. It has not prevented him from to be unwarranted; a roommate had landing several jobs since. forged Margaux’s name on guest Puzycki declined to discuss passes. By July, IU deans had dis- Tezak’s case, referring a list of ques- missed the charge. tions to Peggy Lorah, director of That summer, in June 2006, Mar- Penn State’s Center for Women Stu- gaux and her parents filed a com- dents. Lorah, who served as Tezak’s plaint against IU with the Education advocate, insists the university fol- Department, alleging violations un- lowed standard procedures, includ- der Title IX. It centered on the cam- ing that final meeting with alleged pus punishment. The family argued victims to approve punishment. Told that IU had “failed to properly dis- that records show otherwise, Lorah cipline” Margaux’s alleged attacker replied: “The actions that were tak- and, thus, had “fostered a hostile en- en were in accord with what the vic- vironment.” Later, they filed another tim wanted at that time.” complaint saying the university’s charge of alcohol violations amounted to “retaliation” against Margaux. An Appeal to the In its official response, accord- Education Department ing to case records, IU stressed Margaux still bristles over what she that panel members handed down calls a “false sense of justice.” She “sanction recommendations only,”

and that Dean McKaig had the final Instead, they used her allegations say. “Should the Dean decide that as leverage to reach a plea bargain the recommendation of his judicial agreement with her alleged perpe- officers is inappropriate for any rea- trator in the pending felony battery son, the Dean will make the final de- case. He accepted a deal guarantee- cision,” stated IU’s response to the ing he would not face charges for department. “That is what happened sexual assault, served six months’ in this case.” Officials dismissed the house arrest for pleading guilty to retaliation claim as an innocent, al- misdemeanor battery, and paid res- beit insensitive, mistake. “I don’t titution to the IU student whose jaw think we did anything wrong,” re- he had broken. His probation ex- plies Freeman today. Last April, pired in January 2009. the Education Department essen- In the June 26, 2006 plea agree- tially agreed, concluding there was ment, prosecutors promised to “file “insufficient evidence” IU violated no charges against the defendant Title IX. Asked about sanctioning in based on any information known to sexual assault proceedings, Russ- or received by the State,” including lynn Ali, the department’s assistant “allegations by Margaux J. … of im- secretary for civil rights, promised proper sexual activity.” He now at- the Education Department will issue tends DePaul University, seemingly new guidance for schools, including unimpeded by the “permanent disci- “remedies … that comport with the plinary record” on his transcript that spirit and intent of Title IX.” IU’s Freeman says came from the Margaux and her parents viewed suspension in Margaux’s case. the complaints as their last hope for Now, all Margaux has left is that accountability in her case. Indeed, punishment handed down in her her alleged assailant has not re- IU proceeding — or, as she puts it, turned to IU — he calls the year-long the “kangaroo trial with a kangaroo suspension “too severe,” although sanction.” n he never filed an appeal. But the campus sanction would become the least of his worries. Not long after Ano Unc mmon dropping out, Margaux learned that local prosecutors would not seek Outcome at criminal charges for her rape report. Holy Cross 8

Ano Unc mmon Outcome at Holy Cross

By Kristin Jones

The way Melandy saw it, there wasn’t enough room for both of them. The College of the Holy Cross has fewer than 3,000 students. Months after she says she was raped by another student, Jordan, in a men’s bathroom on campus, Melandy feared running into him on the paths of the Worcester, Mass. college, at parties, and at the din- ing hall where he worked. The sight of him would make her shake, cry, and lose her appetite. “I was tired of having to change my whole life,” said Melandy, a slight, soft-spoken psychology major. (She asked that only her first name be used to protect her privacy; Jordan is a pseudonym.) So when she undertook the often painful process of filing disciplinary charges against the other student, Melandy knew that one of two things would happen. Either he would be expelled, or she would leave the school. In the end, it was his life that would be upended. The college hearing board found Jordan responsible for the school’s most serious charge of “sexual misconduct” — sex without consent — in December 2008. The school dismissed him immediately, revoking his full-tuition scholarship and derailing his academic career and plan to study in Europe, he says. He went back to his native Jamaica, feeling betrayed by his former friend, and “traumatized,” his mother says, by the knowledge that college officials did not believe him. Expulsion rarely results from college disciplinary actions in sexual assault cases, making the Holy Cross case a notable exception. In

interviews the Center for Public Integrity conducted with 33 students who reported being sexually assaulted by another student, four said their alleged attackers were expelled — two of them only after multiple accusations of sexual misconduct. It was far more common for the alleged victim to drop out or transfer, while the accused student remained on campus. Melandy credits her faith in God, among other “The school things, for the outcome in her case. But she also had a policy, relied heavily on the school’s unusually detailed they enforced sexual assault policy and its comprehensive set of the policy, procedures for responding to sexual assault. they found her In preparing her testimony, she frequently credible and consulted a peer advocate at the school, as well they expelled as Colby Bruno, an attorney at the Boston-based the guy.” Victim Rights Law Center. And both Melandy and — Colby Bruno the accused student cite the role of the college’s public safety officers as key players in the case outcome — particularly their description of the dark bathroom where the incident occurred. That image seemed to resonate, Melandy recalls, with the hearing board members. “The school had a policy, they enforced the policy, they found her credible and they expelled the guy,” said Bruno, who advised Melandy free of charge. She added that the outcome was unusual even among other cases she had seen at Holy Cross. “That’s the way it should work.” College administrators sometimes cite the difficulty of acquaintance rape accusations as a reason that so few disciplinary hearings result in tough penalties. But this case was every bit as complex as many other college rape reports: The two students were friends, they were drinking, and the victim waited months to tell the col-

lege. It happened on a night in May 2008 when they were hanging out in a group. She says she was a virgin, was drunk for the first time, and was too unaware to resist when he led her, she says, to a public bathroom for the purpose of raping her — locking the door and turning off the light behind them. He says he was also drunk, that she never said no, and that she seemed upset only that he had a girlfriend. It wasn’t until the fall semester that she reported the alleged assault to Holy Cross public safety officers at the urging of a counselor. There was no rape kit performed, and no obvious physical injuries. At many other schools, similar reports were ignored or dismissed for lack of evidence. Instead, Melandy’s case ended up before a Holy Cross hearing board. Brett Sokolow, a well-known consultant to college administrators, was commissioned to help Holy Cross overhaul its sexual assault policy a decade ago. He recommends “Holy Cross that schools frame sexual assault as an offense is one of the without consent, rather than an offense against schools that the will of the victim. The difference, he says, gets it right, shifts the responsibility from the victim having to as far as I’m prove refusal to consent, and requires the initiator concerned.” of the sexual activity to demonstrate that consent — Brett Sokolow was given. He recommends too, that colleges be specific about what constitutes incapacitation by alcohol, a common factor in college rape cases. “Holy Cross is one of the schools that gets it right, as far as I’m concerned,” Sokolow says, noting in particular the college’s thor- oughness in implementing its own policy. It trained residence hall staff, public safety officers, faculty, and anyone else who might come in contact with victims. Members of campus judicial panels also

receive about three hours of training on sexual assault, according to the dean of student conduct. In preparing her testimony against Jordan, Melandy highlighted the parts of the policy that seemed to back her up: [I]t is the responsibility of the initiator … to make sure that he/ she has the consent from his/her partner(s). Consent may never be given … by one who Holy Cross is incapacitated as a result of alcohol. proved to be Silence … may not … be taken to imply an exception; consent. the two public Too uncomfortable to tell a professor about safety officers the accusation against him, Jordan did not bring — trained in a faculty advisor to the hearing in mid-December sexual assault 2008. On the other side of a partition, Melandy investigation sat beside a trusted statistics professor, as well — testified as the dean of student conduct and two public about what safety officers. A male friend of Melandy’s told the they found. campus panel that he could see how intoxicated she was on the night in question. Colleges are obligated to conduct their own investigations into sexual assault reports. But they often don’t. Here, again, Holy Cross proved to be an exception; the two public safety officers — trained in sexual assault investigation — testified about what they found. Jordan had said the bathroom was not that dark, but the officers said that with the light switched off, it would have been pitch black. Their testimony also differed from his on the size of the bathroom. “At that point, I said, OK, wow, I know I’m going to lose,” said Jordan. Holy Cross did not provide records of the outcomes in previous sexual assault cases. Bruno, the victim rights attorney, said

that other cases she had seen at Holy Cross resulted in findings of “not responsible.” An administrator said expulsion was the most common outcome when students are found responsible for rape, reflecting a philosophy that the school has an obligation to protect its community. “I think there’s certain conduct on a college campus that’s just not acceptable,” says Paul Irish, dean of student conduct and community standards. “And if someone does it, they can’t be a community member any more. Period.” After the hearing, Jordan finished his finals and packed his bags, leaving behind what he couldn’t fit in two suitcases. He believes it was unfair that the school exacted such a punishment without giving him the due process that a criminal trial would have afforded. “The whole process is fundamentally flawed,” and “ri- diculous,” says Jordan, now a law student in Kingston. In a letter to the Holy Cross president, he appealed the board’s “I think there’s decision, saying that Melandy initiated the sexual certain conduct contact. The appeal was denied. on a college The school defends its process, saying that campus attendance at Holy Cross is a privilege, not a that’s just not right. acceptable,” The campus panel’s decision to expel Jordan brought Melandy to tears — of joy and relief, this — Paul Irish time. A year later, she was preparing to graduate from Holy Cross, and studying for the GRE. “I guess you never really forget — not just the rape, but you don’t forget the process, either,” she says. “But I feel like I’m at peace right now, and that’s what I wanted.” Staff writer Kristen Lombardi and reporting fellow Claritza Jiménez contributed to this article.

Lax Enforcement of Title IX In Sexual Assault Cases F eeble Watchdog Leaves Students at Risk, Critics Say By Kristin Jones Published Online | February 25, 2010

took t nine months in student, who said Dunn willingly par- 2005 and 2006 for the Univer- ticipated in sexual activity. Isity of Wisconsin at Madison to Unsatisfied with the school’s re- contemplate, then reject filing disci- sponse, Dunn hoped to find an ally in plinary charges against a crew team the U.S. Department of Education’s member accused of rape. Office for Civil Rights. The office, Enough time for the accused stu- referred to as OCR, enforces a fed- dent to start his fourth year at the eral law requiring “prompt and equi- university, compete in another row- table” action in response to reports ing season, and glide into another like Dunn’s. The statute is intended spring as a celebrated college athlete. to protect students’ right to an edu- Enough time, too, for an enraged cation without the hostility of sexual encounter with his accuser, Lau- harassment or assault. But in a de- ra Dunn, at a fraternity party. “He cision that left her feeling betrayed started threatening me,” said Dunn. again, the enforcement agency said “When he hit the wall, he used his it found “insufficient evidence” that whole forearm, and just slammed the University of Wisconsin had been within inches of my head.” less than prompt. The university said a police inves- The university’s explanation for tigation and the alleged victim’s ob- taking nine months was “reasonable” jections to one of her investigating and it took “interim steps” including officers accounted for the delay. The a no-contact order “to protect and criminal investigation, too, ended prevent harassment” of Dunn, OCR without charges against the accused found. The school ultimately cited a

lack of eyewitnesses and the role of to scare schools straight with a few alcohol in deciding not to file disci- well-placed words. By law, OCR has plinary charges against the accused few tools for intermediate sanctions; student. it can’t issue fines, for instance. It can “I really expected for an organi- refer cases to the Justice Department zation that puts civil rights in their for litigation, but hasn’t needed to, name to understand,” said Dunn. “It officials have said, because schools was pretty devastating.” naturally fall into line once they are OCR is the primary office over- investigated. But critics see it differ- seeing colleges’ response to rape ently. They say OCR’s enforcement and other forms of sexual assault, of how schools handle Title IX cas- but in reality, it does not investigate es involving alleged sexual assaults many cases like Dunn’s. Too few stu- is overly friendly, which ultimately dents know they have the right to lets colleges — and rapists — off the complain, say advocates for alleged hook. assault victims. A Freedom of In- The Office does not routinely formation Act request filed with the make public its investigations into Department of Education yielded at colleges and universities accused of least 24 fully resolved investigations mishandling sexual assault reports. between 1998 and 2008 into allega- Through a FOIA request, the Cen- tions that colleges and universities ter for Public Integrity received the botched sexual assault cases. That’s results of 210 Title IX campus sex about two a year, on average. And vi- discrimination investigations, which olations of Title IX were found in just included allegations of other forms five cases in 11 years. None of the of sexual harassment, like inappro- schools were punished, however — priate comments or touching by pro- even when OCR found that colleges fessors, and grade discrimination, as had acted indifferently or even retali- well as sexual assault. The Depart- ated against students who reported ment of Education provided findings that they had been raped or other- only for cases in which investiga- wise sexually assaulted on campus. tions and any follow-up monitoring OCR officials have said punishing were complete. schools is unnecessary and impracti- Russlynn Ali, who was appointed cal; an ultimate potential penalty of last year to head OCR, painted its rescinding federal funds is enough modest enforcement history as a

remnant of policies pushed by the after the alleged rape by two team- Bush administration, and said that mates, she said, made the already- the Obama administration would be slender athlete lose weight and more aggressive in enforcing Title IX sleep. But even as her crew career in sexual assault cases. fell apart, she didn’t report anything “I certainly can’t speak to the de- to campus authorities for more than cisions made in the past,” said Ali. a year. Many so-called acquaintance “I can, though, commit to you that rape victims are slow to identify where universities or school systems what happened as assault despite don’t comply with civil rights laws, profound personal consequences, where they are unwilling to look to and Dunn says she was one of them. find a resolution … we will use all of At the root of Dunn’s OCR case the tools at our disposal including re- was anger at the way the university referring to Justice or withholding fed- sponded to her report. Her teammates eral funds or going to adjudication assaulted her, she said, while she to ensure that women are free from drifted in and out of consciousness sexual violence.” after drinking heavily at a crew party Critics contend that until now, the in April 2004. (The second alleged at- message to college administrators tacker had already graduated by July has been a starkly different one. 2005, when she reported the assault.) “A smart and savvy attorney tells The two accused men, who did not them, ‘You don’t have to do jack respond to the Center’s calls for com- squat,’ ” said Sarah Dunne, legal di- ment, told a campus police investiga- rector of the American Civil Liberties tor that she was flirting with them, Union in Washington state, and a for- and initiated a sexual threesome. mer attorney for the Civil Rights Divi- The first student affairs dean as- sion of the Department of Justice. “ signed to look into her report left the ‘They’re not going to go after you.’ ” job; the second one was reassigned after Dunn expressed concerns about her methods. It wasn’t until At Lit le-Known Application April 2006 that Assistant Dean of Stu- of a Familiar Law dent Affairs Suzanne Jones, the third Laura Dunn was a rower, too, during investigating officer, made the final her freshman year at the University decision not to pursue disciplinary of Wisconsin. She left the next year charges against the remaining stu-

dent. She never formally interviewed ties, and in 1980 was put under the either of the two men, or read the oversight of the newly created Edu- police file in the case before decid- cation Department’s Office for Civil ing not to take any action against Rights. The law is widely associated the fourth-year athlete, according to with disputes over gender equality OCR’s investigation. in athletics. It makes no mention of Jones said “she was not pursuing sexual assault. But its regulations the matter because there were no eye- call for grievance procedures provid- witnesses other than [the three stu- ing “prompt and equitable resolution dents involved],” according to a let- of student and employee complaints” ter documenting OCR’s findings. She of discrimination on the basis of sex. added that the two students still at- A 1999 Supreme Court decision tending the university “were not clear established that a school could be on what happened … and that alcohol held liable under Title IX for failing played a part in their lack of clarity.” to address student-on-student sex- When contacted by the Center, ual harassment, including assault. Jones declined to say more than The decision underscored the rights “a lot of it is totally incorrect.” She of students who believed that their would not clarify what she meant. rape reports had been mishandled, To Dunn, it seemed that the school causing them to drop out of school had just run down the clock on her or otherwise miss out on educational case, waiting until the end of the year opportunities. to drop it without a thorough inves- But little has been done to make tigation. students aware that they have these Seeing no other avenue for re- rights, say advocates. The option to course, Dunn took her story to a file a federal civil rights complaint local newspaper. That was how S. after a college allegedly fumbles Daniel Carter, public policy director a rape report, said Carter, “is not of Security On Campus, Inc., a safe- widely known among the victims. It ty advocacy organization, learned of is also not known among rape crisis the incident, and he e-mailed Dunn advocates, and it is also not known about her rights. by lawyers.” And the window of 180 Title IX was passed in 1972 to pro- days OCR gives students to file a hibit discrimination based on sex in complaint often passes before they federally funded educational activi- find out about it.

As a result, the number of inves- Chicago regional office in August tigations into sexual assault-related 2006. The office initially declined to cases is “shockingly low” said Di- investigate, saying it wasn’t within ane Rosenfeld, who teaches a class OCR’s jurisdiction because the al- on Title IX at Harvard Law School, leged rape took place off campus. especially considering the hefty esti- She appealed with the help of Secu- mated percentage of female students rity On Campus, Inc. — one in five, according to a Justice “UW … acted with deliberate in- Department-funded study — whose difference,” wrote former Security college educations are disrupted by On Campus, Inc. legal advocate Al- rape or attempted rape. ice Purple. “The harassment that Ms. Still, OCR investigations have Dunn was forced to undergo was so catalyzed policy changes on sev- severe, pervasive and objectively of- eral campuses, including some di- fensive that it deprived her of edu- rectly related to Title IX’s require- cational benefits by forcing her to ment that colleges be “prompt” in quit the crew team and causing her responding to sexual assault — grades to fall.” Dunn’s major complaint. When the regional office finally In 2006, OCR’s New York office agreed in March 2007 to take up the found that the Metropolitan College complaint, Dunn was optimistic that of New York violated Title IX’s re- OCR would agree with her. After all, quirement for “prompt” resolution nine months was equivalent to an en- because of a one-month delay in tire academic year: How could that investigating a rape report. In 2004 possibly be prompt? and 2007, other regional offices cited Oklahoma State University and Tem- Few Violations ple University, respectively, for failing to designate any time frame for But a review of 11 years’ of completed investigation of sexual assault. OCR investigations shows findings of All agreed to overhaul their poli- violations to be the exception rather cies to comply with Title IX. Temple than the rule in cases alleging mis- University also promised to provide handling of sexual assault reports. counseling and other services to the Some of OCR’s findings paint a student who had complained. portrait of college processes gone Dunn filed her complaint with the badly awry, with what seem to be

devastating consequences for al- regulation, has few tools for punish- leged victims. But no Title IX viola- ment short of stripping a college of tions are identified. In 2003 for ex- funding. The lack of available pen- ample, OCR’s Boston office found it alties isn’t lost on the office itself; “troubling” that Boston University in its 2000 strategic plan, OCR iden- had distributed a press packet with tified a long-term goal of develop- information about an alleged rape ing “proposals for remedial powers victim, noting that she was fined for other than complete de-funding of “disorderly conduct” and drinking al- recipients.” Ten years later, its en- cohol on the night she was allegedly forcement method has remained the raped. But OCR stopped short of call- same; it works with colleges to find a ing the school’s actions retaliatory. resolution to grievances. Even the few Title IX violations Ali, who now heads OCR, said she OCR found in sexual assault cases believes it has sufficient powers — did not bring penalties. Instead, they positive as well as punitive — to en- prompted written agreements from force Title IX. colleges to change their ways, or oc- “Historically, and we are seeing it casionally to provide additional ser- now, universities come to the table vices to an alleged victim. ready to do something about this,” For instance, the Washington, she said. OCR wants to expand rem- D.C. office of OCR found that Chris- edies beyond the procedural ones tian Brothers University had commit- favored by the last administration, ted a litany of errors in responding Ali said, adding she would work with to a student who reported a rape, colleges to come up with solutions from initially dismissing the case that might include new student ori- simply because the accused student entation activities, expanded coun- denied it, to refusing to investigate seling, and additional collaboration the alleged victim’s reports that she between faculty, staff and students was being harassed on campus. OCR to eradicate sexual violence. asked that the university make a “Where there is recalcitrance,” number of policy changes, and stop she added, and a school refuses to its apparent retaliation against the al- collaborate with OCR or make the leged victim. But there was no pun- changes it has agreed to, “we will ag- ishment for its mistakes. gressively enforce.” This is partly because OCR, by Critics say that by going easy on

colleges, OCR has traditionally failed es, they said, and by working quietly victims of sexual assault. with schools once investigations are “Schools are routinely not up to initiated. snuff and face very little action from C. Todd Jones, a high-level official the federal government to change at OCR for more than four years of their ways,” said Security on Cam- President George W. Bush’s adminis- pus’s Carter. “You want enough en- tration, said that when pushing col- forcement so that schools are pres- leges to change their policies, taking sured to take sexual assault and rape an adversarial stance could be coun- more seriously. They don’t now.” ter-productive. Carter believes that it is up to “One of the ways to avoid being Congress to ask OCR to strictly en- stonewalled is to act collaboratively force Title IX. Other advocates said with [schools],” said Jones, who that the office already has the tools served as OCR’s deputy assistant sec- it needs to address sexual assault. It retary for enforcement, among other can refer cases for litigation by the roles. “To work with them, to say, Justice Department, for instance. But ‘Yes, your change is a good thing.’” it never has. Rosenfeld calls that position “ir- “They have this power and they’re responsible law enforcement,” liken- not using it,” said Rosenfeld, the Har- ing it to a cop who avoids making an vard law professor. She believes Title arrest for fear of what the person in IX is vital to ensuring gender equity in handcuffs may think. education, and has been inadequately Critics said that OCR’s preference enforced in sexual assault cases. “Re- for working behind the scenes takes scinding federal funds is a huge stick away yet another stick. that OCR could use against schools, “When a school doesn’t fear get- and instead they use this very soft ap- ting sanctions, it fears embarrass- proach.” ment or shame,” said victims rights Former OCR officials countered lawyer Wendy Murphy. But schools that investigations themselves are don’t fear anything from OCR, she onerous and costly for colleges, pro- said. “They don’t write their rulings viding a strong incentive to avoid as if there’s even shame to be had.” them. The office works most effec- Murphy filed a complaint against tively through positive means like Harvard in 2002 that led to a change educational seminars and conferenc- in its sexual assault policy, but there

was no finding of a violation by OCR cepted that answer, though its own — a result she said sent the wrong guidance, issued in the waning days message to other administrators. “If of the Clinton administration, stated you were a school,” she asked. “Why that “police investigations or reports would you treat a victim fairly?” … do not relieve the school of its duty to respond promptly and effectively.” A Months-Long Process In this case, a campus police de- The University of Wisconsin at Madi- tective asked to do the initial inter- son did not grant interviews with any view with the alleged attacker still of the administrators involved in in- enrolled at the university — then vestigating or responding to Dunn’s took two months to do it. Another de- civil rights complaint. lay arose when the dean assigned by Kevin Helmkamp, the current as- the university to investigate Dunn’s sociate dean of students, was the case was replaced twice — once af- only university staff member who ter Dunn complained that the dean’s was made available for an interview accusatory manner pushed her to — but not about the case. He bristled tears and caused her to fail an exam. at the idea sometimes espoused by (The school disputed that, saying the advocates that simply being inves- dean was simply doing her job as an tigated by OCR was an indication investigator.) that the school had done something All the while, the alleged attacker, wrong. “OCR’s letter to the university a religious and classical studies ma- identified no required changes to our jor, continued to row on the crew process nor any wrongdoing on the team that Dunn had felt forced to university’s part,” he added in an e- leave. mail. “My parents are Harvard attor- Indeed, the OCR letter finds that neys,” Dunn said he told her at a No- the nine-month process was justified. vember 2005 party. “You won’t win.” First, a criminal investigation The athlete’s aggression toward stood in the way, the letter notes. A his alleged victim at that party led university dean told OCR that “it was its hosts to discuss asking him to not unusual … to delay their inter- leave, one of them recalled years views when a student also elected to later. The accused student’s belliger- file a criminal complaint.” OCR ac- ence seemed to Dunn to clearly be

a reaction to her report. But OCR fundamental requirements. In a foot- found that since Dunn had initiated note on page 14 of its finding letter, the contact at that party (a point she OCR recommended a policy revi- disputes), there was “insufficient evi- sion, and stated that it had provided dence to establish that the University the university with “technical assis- subjected [her] to a sexually hostile tance” in order to achieve it. environment.” Technical assistance is OCR’s term Dunn disputed many of the points for seminars, classes, conferences, made by university staff members — private phone calls and other efforts everything from dates she says they intended to train educators on their had wrong to conversations they may civil rights responsibilities. These have misinterpreted or failed to men- programs depend on the good will of tion. Her version of events, including university administrators. Even OCR promises from staff members that critics agree that they can be an ex- the investigation would soon con- tremely effective tool. clude, appears to be corroborated But by OCR’s own account, tech- by many of the e-mails she provided nical assistance — along with its abil- to the Center. But OCR consistently ity to investigate complaints — has took the university’s word over hers. taken a hit in the last decade, as the Purple, the former Security On Office’s budget has been stretched. Campus, Inc. advocate who wrote In fiscal year 2009, OCR had 582 Dunn’s appeal, said she was sur- full-time staffers — fewer than at prised by OCR’s findings in the case. any time since its creation. And it re- The lengthy delay in investigating ceived 6,364 complaints, an increase Dunn’s report, she added, seemed to of 27 percent since 2002. be an obvious violation of Title IX re- “OCR is challenged in its ability to quirements that schools respond in a execute its law enforcement activi- reasonable timeframe. “I don’t think ties,” said an administration budget they were really justified in coming request last year. Investigations were to that conclusion,” she said. taking longer, it noted. And the Of- OCR’s sole concession to Dunn’s fice’s “capacity to deliver technical complaint was a determination that assistance, which is labor intensive the University of Wisconsin had no but the best means of preventing civil established timeline for a prompt rights violations, is at risk.” investigation, one of Title IX’s most The Obama administration has

promised to give OCR a boost, and sued its most recent sexual harass- the president’s fiscal year 2011 bud- ment guidance, a single document get request calls for full-time staff to with specific recommendations on inch up to 614 by next year. “In re- how best to prevent and respond to cent years, this office has not been as sexual harassment and assault in ed- aggressive as it should be,” Secretary ucational settings. It is that guidance of Education Arne Duncan said in a that says, for instance, police investi- speech in January. “But that is about gations do not relieve a school of its to change.” obligation to investigate. Ali said her Office will direct more But C. Todd Jones, the former attention toward technical assis- Bush administration OCR official, tance and outreach to universities on said the guidance lacked an adequate the issue of sexual assault, despite a public comment period and was budget that remains tight. shelved immediately after the 2001 Back at the University of Wiscon- inauguration. He called it “not more sin at Madison, though, it is unclear official than a brochure,” citing “legal whether the “technical assistance” analysis errors” and “unsubstanti- referred to in OCR’s letter ever took ated conclusions.” Practitioners in place. the field, though, said they were un- To date, the university’s policy aware the guidance was not in effect. makes no mention of any time frame To Carter, the campus safety ad- for investigations — for good reason, vocate, the ex-Bush administration Helmkamp said. “It is very difficult to official’s statement confirms a long- predict how long it would take, par- held suspicion that OCR was not ap- ticularly with complex cases,” he said. plying its own published guidance in “And we do want to be thorough.” its analysis of complaints. But it does Without instruction from OCR nothing to clarify confusion over staffers, colleges depend more heav- what OCR actually recommends. ily on public guidance and on private “OCR does not tell the schools consultants to decipher signals from what’s expected of them,” said Cart- court cases and OCR determinations. er. “There are not clear-cut instruc- But critics say these signals are often tions … of exactly what they have to confusing. do in a sexual assault case. And that On Jan.19, 2001, the last day of is essential.” the Clinton administration, OCR is- The Office plans to issue new guid-

ance on schools’ Title IX responsibili- put colleges on notice in a way that ties as they relate to sexual violence, government enforcement has not, say said Ali, in coming months. lawyers and scholars. “Whether or not schools care when the Office for Civil Rights calls,” said Ariela Migdal, an at- Something to Fear: torney at the ACLU Women’s Rights Private Lawsuits Project, which wrote an amicus brief Colleges have another good reason in the CU case, “if I were a school ad- to look to OCR for more guidance: ministrator, I would care if someone Some courts have taken an increas- like Baine Kerr were to call me.” ingly aggressive stance against insti- Some argue that civil lawsuits tutions which ignore acts of sexual have effectively negated the need for violence on their campuses. much government enforcement of Since the Supreme Court’s 1999 Title IX in rape cases. “If a woman’s decision that schools could be held been raped, and the allegation is liable for sexual assault by students, that the university violated Title IX, a number of landmark cases filed by there’s no reason to spend your time alleged victims have resulted in huge filing an OCR complaint,” said Jones, settlements. the former OCR official. “Go down to In December 2007, the University the federal courthouse, file a lawsuit of Colorado paid $2.85 million to and get money. Why waste your time settle a high-profile lawsuit filed by with OCR?” two students who alleged they were But advocates like Carter — who raped by football players and re- has helped students do both — vehe- cruits. The university’s coaches and mently disagree, arguing that the ex- administrators were accused of fa- pense of lawsuits is simply not within cilitating a culture of sexual violence the grasp of most students. by athletes. And Supreme Court decisions in Baine Kerr, the lawyer who repre- the late 1990s set the bar for private sented CU student Lisa Simpson in action in a Title IX case at an ex- that case, took on Arizona State Uni- plicitly higher level than in agency versity in a similar case. In January enforcement. To win damages in a 2009, the Arizona Board of Regents private lawsuit, a student must prove paid $850,000 to settle the lawsuit. that a college had actual knowledge Private lawsuits like these have of sexual harassment or assault, and

showed “deliberate indifference.” al counsel to make more of its inves- That makes civil actions appropri- tigations publicly accessible, Ali said, ate in only the most egregious situa- adding that it is now concluding two tions — a case of a serial rapist who reviews into universities’ handling is known but ignored by a university, of sexual assault. OCR launched the for instance, or a college that has no two investigations during the Bush sexual assault policy at all. administration, she said, without an “That’s a far cry from most cases, underlying complaint, and it plans where there is some process, but it’s to initiate more reviews in coming flawed,” says Carter. years. She said the office will also educate colleges on their responsibilities to give students the means to A New Role for OCR? complain. OCR’s enforcement of Title IX in sex- Dunn, for her part, didn’t even ual assault cases has long been weak, read OCR’s decision for months af- say victim rights advocates. Some ter she received it. It was enough to are hoping the Obama administration know the office had decided against will encourage OCR to more force- her. Later, she read through it and fully take colleges and universities to marked all the times that the OCR in- task in cases like Dunn’s — a role Ali vestigator had, in her view, taken the said her office is ready to adopt. school’s word over hers. The experi- “Sadly, I have heard those same ence left Dunn, now a schoolteacher kinds of stories and anecdotes,” said in Chicago, pessimistic about the Ali, when told of complaints that her prospects for future victims — at the office simply signs off on universi- University of Wisconsin and at other ties’ decisions. “What I can commit colleges. to as a newly appointed assistant sec- “The message they are sending to retary for civil rights is that we are a victims,” Dunn said, “is that sexual rubber stamp for no one.” assault is not something they take Calling sexual violence an “epi- seriously.” n demic” in the nation’s schools, Ali said that the Department of Educa- Staff writer Kristen Lombardi and tion would partner with other agen- reporting fellows Laura Dattaro cies to address it. and Claritza Jiménez contributed OCR is also working with its gener- to this story.”

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 85 ‘ Undetected Rapists’ On Campus: a Troubling Plague of Repeat Offenders A Chilling Case at a Friendly School — SExual Assault at Texas A&M By Jennifer Peebles and Kristen Lombardi Published Online | February 26, 2010

OLLEGE STATION, Texas— Elton Yarbrough was a young Cman seemingly on his way up: An economics major at Texas A&M University; a member of the university’s military cadet corps; a musi- cian in the marching band; the pride of little Palestine, Texas; and soon to be an officer in the U.S. Air Force. But police say he was also one other thing: A serial rapist. The one-time Texas A&M senior is now sitting in a Texas prison until at least 2015 for felony sexual assault. Five women, including four female Elton Yarbrough is serving an 18 A&M students, testified Yarbrough year sentence in the Ferguson Unit raped or sexually assaulted them of the Texas Department of Criminal between 2003 and 2006, although he Justice, shown above in January 2010, after he was convicted of Jennifer Peebles is a reporter with sexual assault in 2006. (Credit: Texas Watchdog. Jennifer Peebles/Texas Watchdog)

was only tried on one assault charge. pears as impeccable as Elton’s, then Yarbrough says he is innocent. who can we really trust in life?” Yarbrough is one of six alleged se- The number of serial offenders did rial offenders at colleges across the not surprise psychologist David Lisak, country the Center for Public Integ- a University of Massachusetts-Boston rity found during its year-long inves- expert on campus sexual assault. tigation of sexual assault on college “This is the norm,” said Lisak, campuses. The six were accused of who co-authored a 2002 study of assaulting multiple women in court nearly 1,900 college men published records, cam- in the academic journal Violence Records show pus records or and Victims. “The vast majority of that Texas A&M other public rapes are perpetrated by serial of- administrators documents. fenders who, on average, have six H o w e v e r , victims. So, this is who’s doing it.” were not students who Yarbrough’s story, and those of aware of Elton reported being the women who accused him, share Yarbrough’s raped by fellow several commonalities with cases arrest on a sexual students told of other alleged repeat rapists. For assault charge the Center of at example, records show that Texas until more than a least five other A&M, the nation’s seventh-largest men whom they university, was slow to realize it had week after it had suspected of, or a possible repeat rapist on campus. happened or that had heard of, Administrators were not aware of he was possibly assaulting other Yarbrough’s arrest on a sexual as- a repeat rapist. women. Those sault charge until more than a week men probably after it had happened and by then look a lot like Yarbrough did to police considered him a suspect in Texas A&M administrators and to another attack months earlier. Once his fellow students: A promising those women came forward, the uni- young student with an outstand- versity eventually became aware of ing resume of achievements. As one two other women who said they had of his accusers would later write in a been assaulted by him. One told the statement read at a university judicial Center for Public Integrity that she proceeding, “If you cannot trust an- had reported the assault a year be- other student with a record which ap- fore to A&M’s student health center

and, after getting little support from ficial university greeting is “How- the university, transferred to anoth- dy,” and every A&M student — still er school. called an “Aggie” even though the Likewise, all five women testified “A&M” no longer stands for “Ag- the assaults occurred after they had ricultural and Mechanical” — is been drinking heavily, which blurred famously required to swear to the their memories. And the university code of honor: “Aggies do not lie, responded by pitting one victim cheat, or steal, nor do they tolerate against Yarbrough in a he said, she those who do.” Aggies have a repu- said “student life conduct” hearing tation for being community-minded. that was surrounded in secrecy and And once you’re an Aggie, you’re left both the woman and Yarbrough always an Aggie. Fallen Aggies are disappointed with the procedure remembered each year at an event and its outcome. called the Aggie Muster that is ob- But Yarbrough’s tale — and the served around the world by groups fact that he’s now in prison — also of former students. Included in the bucks a trend. The Center’s re- “roll call” at the 2000 Muster were search, and Lisak’s as well, shows the names of the dozen students that many prosecutors are hesitant killed the previous November in the to deal with campus sexual assault collapse of a giant bonfire tower cases. Police and prosecutors in the built of logs. middle-sized city of College Station, Despite that welcoming culture, Texas, charged Yarbrough, put him sexual violence does occur. Twenty- on trial, and convinced a jury to sen- two “forcible sex offenses” were re- tence him to 18 years in prison, of ported at A&M in the three-year peri- which he must serve at least nine. od ending with the 2007-08 academic year, according to the university’s most recent annual campus security Shock at Texas A&M report. Still, the Aggieland commu- With 48,000-plus students on the nity was shocked by news reports campus near College Station, out- that an A&M student — and a senior siders might think a school the size member of the cadet Corps — was of Texas A&M would be impersonal arrested in early December 2004 and and unwelcoming. charged with raping another student. But this is a place where the of- By the time it was over, there

would be a total of five women, all down to sleep in the same bed. testifying they were assaulted by The exchange student testified Yarbrough in the same circumstanc- she woke up to find him on top es: After drinking heavily, each said of her, having sex with her. She she passed out or fell asleep and screamed and demanded he leave, woke to find Yarbrough having sex and he did. Her roommate called with her or touching her sexually. 911, and at the prompting of police, “He would pick the most intoxi- she called Yarbrough two days later cated female, whether he’d be at a and confronted her assailant on the bar or at a party,” recalled Lt. Bran- phone — while police recorded the dy Norris, the lead investigator on conversation. the case for College Station police. Some excerpts from the tape that “He’s a serial rapist. He was smart were read to the jury: enough to know he didn’t have to Victim: “I was passed out, Elton, hide in the bushes and grab them as and you knew it. I don’t care if you they were walking by.” were drunk. I was out cold. Why Yarbrough disagreed. “I don’t would you do that? Had you planned believe it. I know for a fact it’s not it, or was it just something that came true,” he said in an interview at Fer- to you spontaneously? What?” guson Unit, a Texas prison about two Yarbrough: “No, I didn’t plan it. I hours north of Houston. “My family don’t know. I don’t know what hap- knows it’s not true. My friends know pened.” it’s not true.” Victim: “Why did you do it?” An Irish foreign exchange student, the first woman to accuse Yar- Yarbrough: “I don’t know why ... brough by name, had been a friend Look, I’m sorry.” of a friend of his. The two had Victim: “You made me feel so chatted on what police would call sick, so violated, so helpless ...” “The Facebook” and played pool to- Yarbrough: “I don’t really — I gether at a local nightspot. During don’t even know what to say. It was the 2004 Thanksgiving break at her my fault. It’s no excuse but I was off-campus apartment, she and her drunk. Sorry for making you feel roommate couldn’t get Yarbrough that way.” to take the hint to go home after The tape became a key piece of a night of drinking and they all lay evidence that helped put Yarbrough

in prison. And news of his arrest while, she told only three people would lead three other women to about what happened. Her grades testify that Yarbrough had assaulted dropped because of it, and she left them prior to the foreign exchange A&M and later graduated from an- student. other university. “I haven’t been able to really trust anybody since then,” she said. Other Alleged Victims Another woman who would tes- Speak Out tify against Yarbrough was a high One of the three women was a school pal of one of his friends. She hometown friend of Yarbrough’s had just arrived on campus for her from Palestine who followed him freshman year in 2004. After getting to A&M. They had sex once during “extremely drunk” on Long Island her college freshman year while she iced teas at Hurricane Harry’s in was drunk. She told jurors that on College Station, she later testified, another occasion, one night before she passed out at Yarbrough’s off- playing drinking games together in campus fraternity house, Chi Phi, his dorm over the 2003 Thanksgiv- and awoke to find him performing ing break, she said she told him she oral sex on her. did not want to have sex with him. A month later, according to trial She passed out, she would later testimony, he raped another woman testify, and when she came to, she at the fraternity house. She was a found him assaulting her. friend of the girlfriend of one of Yar- The next day, she recalled for the brough’s fraternity brothers. After Center for Public Integrity, she went drinking “trash can punch” — tra- to the A&M student health center. ditionally made with pure grain al- “When I went and I did my rape kit, cohol — and beer, she testified that the lady said, ‘Well, were you drunk?’ she laid down to sleep with friends — like, ‘It’s your fault because you in a common room. She woke up, were drinking.’ It made me feel bad. she said, to find a dark-skinned man She gave me a pamphlet, and she having sex with her. said, ‘You can go talk to a counselor “I said, ‘Who are you?’ And they” on campus about this.’” — her assailant — “stood up and That was the last she heard from they walked out of the room,” the Texas A&M about it, she said. Mean- victim testified.

She later realized her panties and against him are untrue. Speaking tampon were missing — and her with a reporter in the drafty prison friends said they found Yarbrough’s interview room, he says he had con- cellphone, with its cracked display, sensual sex with four of the five where her attacker had lain. One of women. In the case of the one whose Yarbrough’s fraternity brothers tes- underwear went missing, he said he tified that Yarbrough showed off a wasn’t in that part of the fraternity pair of women’s underwear the fol- house that night. lowing morning. “I was pretty promiscuous in col- The fifth, and last, woman to ac- lege. I don’t know too many people cuse him said she was raped after who weren’t. I guess when you com- Yarbrough was charged with assault bine a lot of drinking and partying in and was out of jail on bail. The wom- college you’re going to have a lot of” an was a co-worker of Yarbrough’s sex going on, he said. at a local restaurant and attended And when people drink, their a party at his apartment. She testi- inhibitions are lowered — and, he fied that after playing eight rounds said, sometimes they have sex with of “beer pong,” she passed out on a people with whom they wouldn’t sofa and regained consciousness to normally. “It’s college. You walk find Yarbrough assaulting her. around Northgate,” he said, speak- “For a person like Elton, it ap- ing of one of College Station’s most pears that a university campus is popular bar areas, “you’re going see like a playground, where he goes a lot of drunk men and women. And to parties or to bars and chooses then, at the end of the night, you’re his victim for the night,” the foreign going to see a lot of drunk men and exchange student would say in a women going home together.” statement read on her behalf at the But he says he never forced any- university judicial proceeding. “… one to have sex, and says the four He knew he could not have me with women with whom he admits to my consent, so for him I suppose it having sex were willing participants. was enough to have me while I slept, He recalled one having participated just a limp body laying there, obvi- in foreplay before intercourse, and ously a playground for him to satisfy another came into his bedroom his sick pleasures.” and initiated sex with him, he said. Yarbrough says the allegations His childhood friend testifying he’d

raped her was “a big shock,” in par- “It seems that if I were the serial ticular, he said. rapist they claim I am, they would “Pretty much all of them said have been trying me on everything they were too drunk to remember they could possibly try me on, to get the details of that night, but the only me as much time [in prison] as they details they could remember were could,” he said. the details that were incriminating Prosecutors held on to the charge against me,” he observed. “They regarding the assault of the res- didn’t remember any of that other taurant co-worker and would have stuff that happened.” sought to try Yarbrough on it if he As for why they might lie about had won a new trial during his recent it, he has some theories, he said. For appeal, said Danny Smith, the assis- one, they were white women who tant district attorney who prosecut- drunkenly had sex with a black man ed the case. As for why they didn’t and may have regretted it the morn- seek to prosecute him on charges of ing after. College Station, Texas, is assaulting the other three women, still an overwhelmingly white town, Smith said they “went forward with and at least one of the women testi- the strongest” of the cases, that of fied her parents had forbidden her the foreign exchange student. from dating Yarbrough because of his race. The foreign exchange student’s ‘Undetected Rapists’ father is an executive with a multi- national company who, Yarbrough Repeat offenders may have struck thinks, may have influence. And the several college campuses in recent system, he said, is just more inclined years. to believe the girl, and not the guy. In one of the initial stories pub- He also questioned why pros- lished as part of the Center for ecutors only tried him on a single Public Integrity’s investigation, for- charge — assaulting the foreign ex- mer University of Virginia student change student. He was indicted on Kathryn Russell recounted that she a charge of assaulting the restaurant was assaulted and that the univer- co-worker but was never tried on it, sity found her alleged assailant not and he was never charged criminal- responsible for sexual assault, is- ly with assaulting any of the other suing him a verbal reprimand for three women. using bad judgment. The following

year, Russell recounted, she learned tims of the same man came forward her alleged assailant was accused after she began speaking out at of raping another woman. For the rallies against rape and sexual vio- second complaint, he was found re- lence. Jane Doe settled in 2008 for sponsible, but that finding was over- an undisclosed amount of money turned after he appealed. under a confidentiality agreement. Russell has described additional Interviews with student victims alleged victims of the same man and reviews of records in select identifying themselves to her after cases identified alleged repeat of- she went public with her descrip- fenders at Indiana University, Tow- tion of how the university offered son University, and the University of her little support and shrouded the Colorado at Boulder. campus judicial process in secrecy. Research by Lisak, an associate In Ohio, a woman known pub- professor of psychology at the Uni- licly only as Jane Doe, who settled versity of Massachusetts at Boston, a lawsuit with Ohio State University showed that 58 percent of male col- in 2008, alleged in court records that lege students who admitted in a sur- the male student who raped her in vey to actions that amounted to rape her dorm had raped another female or attempted rape also reported hav- student less than three weeks ear- ing multiple victims. And those se- lier. According to the records, the rial rapists committed 91 percent previous victim had reported the of the rapes reported by the survey assault to the university’s residen- group. Lisak and his collaborator, tial staff, who punished the alleged Brown University’s Paul M. Miller, attacker by merely moving him to a referred to the phenomenon as that new dorm. of “undetected rapists.” Ohio State found the male stu- In Yarbrough’s case, the women dent responsible for Jane Doe’s rape who say they were his first two allegation and expelled him. He was victims reported the assaults only then charged criminally with rape after Yarbrough was charged with stemming from her allegations. He assaulting the foreign exchange pleaded guilty in a plea bargain to student. His childhood friend from misdemeanor assault. In interviews, Palestine had transferred to another the woman told the Center for Pub- university by then; aside from telling lic Integrity that other alleged vic- three friends and the student health

center nurses, she kept the secret arrested two months later on the from even her parents.. charge of assaulting the foreign ex- “I was like, ‘I don’t want to get change student. my friend in trouble,’” she recalled. When campus rapes are reported “In retrospect, I know I should have to police, local prosecutors “aren’t said something to the police. I know doing a very aggressive job” prose- that I should have gone forward — cuting these cases, Lisak said. Alco- regardless of if he was my friend hol is often involved. “Very often the or not, no means no. It is what is. prosecuting office drops the case I’m older and I’m smarter now. But because they feel that they can’t back then I was 18. I was young and prove it, they can’t get a jury to con- dumb, I guess.” vict. So the vast majority of these Another woman testified that she rapists never face a trial.” didn’t tell police or the university for Seated around a conference table months about the assault because in the Brazos County district attor- she had hoped to pursue a roman- ney’s office in Bryan, just minutes tic relationship with a friend of Yar- from the Texas A&M campus, Nor- brough. ris, the lead investigator, and Smith, Experts say it’s common for rape the assistant DA, were asked why victims not to come forward because they pursued criminal charges in the they feel fear or humiliation. The ma- assault of the foreign exchange stu- jority of rapes are never reported to dent. law enforcement, Lisak and Miller Norris had an immediate answer: wrote. One in five college women “The victim. She made a world of will become the victim of a rape or difference.” an attempted rape by the time she Smith interjected: “The strength graduates, according to a study fund- of the case. We also had the ‘sneaky ed by the Justice Department. tape’ [of the recorded phone conver- The woman whose underwear sation]. Part of it was, we actually went missing did call police in had his own words. ... We still had neighboring Bryan, Texas, where him apologizing to her on a phone the fraternity house is located. Re- call.” cords show investigators there were Norris continued: “It’s not easy working the case, and considered to make a phone call to the person Yarbrough a suspect, when he was who’s just assaulted you and con-

front them. It’s not an easy thing to of A&M’s own internal judicial pro- do. … She was just a very strong ceeding, known as a “Student Life person who was able to do what Conduct Conference.” needed to be done.” The available public records shed The prosecutor went on: “I have little light on how the university been presented with cases ... involv- reached out to the exchange student ing alcohol and allegations of sexual and what services or support she assault, where it’s not necessarily was offered prior to the university’s that I don’t believe that it happened, proceeding, held about six weeks it’s just that there’s not enough after the assault. Ann Goodman, the proof. And this case was different in A&M administrator who police re- that regard — frankly, one, because cords say represented the victim at the night that it happened was the the university’s judicial hearing, and night that she called police. Often Carol Binzer, the university’s current time where we see things is days, if director of student life, declined to not weeks, later.” comment on the case, citing federal When they drew up the arrest war- laws intended to keep private stu- rant for Yarbrough, they suspected dents’ educational records. Texas him of only one assault. Within days A&M has cited the same law in de- of his arrest on Dec. 1, 2004, Nor- nying requests for access to records ris and a police detective in Bryan of Yarbrough’s case. had compared notes and attributed The campus proceeding at Cain three assaults to Yarbrough. Hall wasn’t a court or a trial and the hearing panel was made up of three A&M administrators, including an Texas A&M Responds assistant Corps commandant. After turning himself in on Dec. 1, According to police records, Yar- Yarbrough was booked on a charge brough described to the panel in of assaulting the foreign exchange detail fondling and penetrating the student, posted bond and was woman with his penis but said the freed. Nine days went by, police sexual contact was consensual. He records indicate, before the univer- was allowed to directly question the sity learned of the criminal charge woman, who was participating via against him and banned him from conference call from overseas, and the campus pending the outcome Yarbrough recalled one administra-

tor objecting to the detailed nature Yarbrough described it in similar of the questions he posed to her. terms: “She told her story, I told my Yarbrough’s lawyer was also present story, and whoever they believed, but could not ask questions. that’s what they went with.” He re- Goodman, the A&M administra- called being told that the standard tor -- who is trained in crisis man- for the university panel wasn’t “guilt agement -- read the victim’s state- beyond a reasonable doubt” but the ment out loud to the panel: “What lighter “preponderance of evidence” probably hurts me the most ... is that benchmark. “If they believe her I know I am not the only girl which 51 percent and me 49 percent, I’m he has preyed upon,” the woman guilty.” wrote. She denounced him as “a dis- The public record does not ad- grace to the Corps and to Aggies as dress how the university dealt with a whole,” telling him, “You do not the other women once they came exemplify the Aggie spirit.” forward. One had already trans- Yarbrough was found “responsi- ferred to another school, but two ble” for breaking three student con- were still students at A&M when duct rules, including sexual assault Yarbrough went on trial in Septem- and conduct unbecoming a Corps ber 2006. Neither of those women member: “The hearing panel felt responded to messages requesting that it was more likely than not the interviews for this story. The for- victim in the incident was not able eign exchange student spoke to the to give consent to any intimate rela- Center for Public Integrity on back- tionship during the incident, there- ground only, confirming much of fore, the student will be responsible what is in the public record. for the charges pending.” The panel After the arrest, Yarbrough’s fra- suspended him for a year and as- ternity also held an internal meeting signed him 150 hours of community regarding the allegations that he had service, records show. assaulted one of the women — the “Universities are not equipped to woman whose panties went missing do an appropriate investigation of a — at the off-campus fraternity house. rape case,” Lisak said. “She says he Evan Dews, a Chi Phi member who did it and he says he didn’t, and they was friends with three of Yarbrough’s throw up their hands and say, ‘How victims, testified in court that he at- are we supposed to figure this out?’” tended the chapter meeting and

didn’t buy Yarbrough’s alibi for the although Yarbrough’s name was underwear he’d displayed the morn- still on the chapter website’s “dis- ing after the alleged attack. tinguished alumni” listing as of this Dews, now an A&M graduate month. Michael Azarian, executive working overseas in the construc- director of Georgia-based Chi Phi’s tion industry, said via e-mail that the national office, said he believed Yar- meeting led to Yarbrough being sus- brough was expelled from the A&M pended by the fraternity and tem- chapter, but that he remains a mem- porarily banned from the fraternity ber of the national fraternity. house pending the outcome of the At Ferguson Unit, Yarbrough is criminal case against him. now inmate No. 1397217. He rises by At his criminal trial, Yarbrough’s 6:30 each morning and is at work in lawyer sought to persuade jurors the prison kitchen by 7 a.m., except that the foreign exchange student for Tuesdays and Thursdays, which consented to the sex. He also tried are his days off, and Fridays, when to portray some of the victims as he attends business speech class. By sexually active, if not promiscuous 11:45 a.m. on weekdays, he’s head- — by playing “strip pool” with male ing to a cabinetmaking class that and female friends — and said they lasts until 6 p.m. made poor choices by drinking too Some friends and fellow Corps much and having premarital sex. members shunned him, but other Jurors deliberated less than two friendships have grown stronger hours before returning a guilty ver- while he’s been in prison, Yarbrough dict. Court records show the jury said. His family has stood by him, in- asked the judge for, and received, a cluding his mother, a veteran guard compact disc player so they could supervisor at another Texas prison. re-hear the audio recording of the When he gets out, he dreams of ob- phone conversation between Yar- taining a commercial truck driver’s brough and the exchange student. license or owning a small fleet of He was sentenced to 18 years, of trucks. And he hopes to go back to which he will have to serve at least A&M to complete his degree. n nine. The Air Force cancelled its offer to commission him as an offi- Kristin Jones, staff writer for the cer. The A&M chapter of Chi Phi ex- Center for Public Integrity, con- pelled him permanently, Dews said, tributed to this story.

REPORTER’S TOOLKIT Investigating Sexual Assault Cases on Your Campus

A PROJECT BY THE CENTER FOR PUBLIC INTEGRITY

he Center for Public Integrity has reached some troubling conclusions about how certain institutions collect and report Tsexual assault statistics, and how sexual assault cases are adjudicated in campus judicial systems. As a student journalist, you are in a unique position to report on how your school deals with sexual assault allegations. Here’s a guide to how you might proceed. Knowing the Law • The Family Education Rights ° Since Congress never defined and Privacy Act (FERPA) what constitutes an education ° Passed in November, 1974, FER- record, some schools have PA is a federal law that protects applied FERPA’s provisions to the privacy of student education cover pretty much any docu- records. It applies to all schools ment that names a student. receiving federal funds. ° Some college administrators ° The law grants three basic rights argue that FERPA requires to parents of minor-aged stu- closed disciplinary proceedings dents and students aged 18 and in a variety of matters, including older: allegations of sexual assault. In i. the right to access educational promulgating regulations, the records; Education Department has stat- i. to challenge the records’ con- ed that “FERPA does not [per tents; se] prevent an institution from i. to have control over disclo- opening disciplinary proceed- sure of “personally identifiable ings to the public,” but confu- information” in the records. sion remains over how institu-

tions of higher learning should they have the option of chang- apply FERPA’s provisions. ing classes and dormitory ° More info: www.ed.gov/policy/ assignments in order to avoid gen/guid/fpco/ferpa/index.html their alleged assailants. ° More info: “The Handbook for • The Jeanne Clery Disclosure Campus Crime Reporting” of Campus Security Policy and Campus Crime Statistics Act • Title IX of the Education (Clery Act) Amendments of 1972 (Title IX) ° The Clery Act, passed in Novem- ° Title IX is a civil rights law that ber 1990, requires that higher prohibits sex-based discrimina- education institutions whose tion in educational programs students receive federal finan- or activities at institutions that cial aid collect and report crime receive federal funding. data to the U.S. Department of ° Under Title IX, discrimination Education. on the basis of sex can also ° A 1992 amendment to the Clery encompass sexual harassment, Act established the Campus sexual assault, and rape. Sexual Assault Victims’ Bill of ° If a college or university is Rights, requiring schools to aware of but ignores sexual provide certain basic rights to harassment or assault in its survivors of sexual assaults on programs or activities, it may campus, including: be held liable under the law. A i. Giving the alleged victim and school can be held responsible the alleged assailant equal op- in court whether the harassment portunity to have others pres- is committed by faculty or staff, ent in disciplinary proceedings or by another student. and equal notification of the ° The Education Department’s outcome of such proceedings; 2001 guidance mandates that i. Notifying alleged victims of schools take “prompt and the availability of counseling effective action to end [serious] services, and of their right to harassment and prevent its pursue remedies through local occurrence.” police; ° More info: www.ed.gov/about/ i. Notifying alleged victims that offices/list/ocr/docs/interath.html

CeryAt l c Basics

To Comply with the Clery Act, • The Clery Act exempts Schools Are Required To: pastoral and professional • Publish and distribute a counselors from acting as a security report annually by CSA. October 1st that includes crime statistics for the past Eax mples of Clery Act three years and summaries of Violations: campus security policies, • Misclassifying crimes. For • Provide timely warnings to example, not properly the campus community on differentiating between crimes that pose a serious or forcible rape and non-forcible continuing threat, rape as defined by the Clery • Keep a public daily crime log, Act; if the institution maintains • Changing crime statistics a campus police or security reported from one annual department. campus security report to a subsequent campus security CSampus ecurity Authority: report, in regard to the same • The Clery Act defines a Cam- year; pus Security Authority (CSA) • Failure to collect crime as including any person or reports from a Campus body with significant responsi- Security Authority such as bility for student and campus a dean, athletic coach, or activities, as well as campus residence hall adviser. police and security staff. • CSAs are required to report allegations of crime to campus or local police even if the victim chooses not to file a report with law enforcement or press charges.

GttingS e tarted

A Few FiRST Steps as You Begin • Find out how Clery Act crime Your Reporting: data is collected around • Look for the school’s annual campus. campus security report on the ° Compare the school’s collec- university website or request tion process against what it is a print copy from the univer- required under the Clery Act. sity. • File a Freedom of Information • The U.S. Department of Edu- Act request with the U.S. cation also maintains a data- Department of Education to base of Clery Act statistics see if the school has ever been provided by schools: the subject of a Clery Act http://ope.ed.gov/security/ complaint. ° Compare sexual assault num- ° If there is a complaint, who origi- bers provided to the U.S. De- nated the complaint and why? partment of Education against ° What was the Department’s the numbers published in the response to the Clery Act com- school’s annual security report. plaint? Findings? Conclusions? Sometimes the numbers are different and those differences F iling a reedom of Informa- are red flags for Clery Act violation Act Request (FOIA): tions. • FOIA allows requests for • Collect numbers for sexual public records, which may not assaults from on-campus and otherwise be readily available. off-campus rape crisis centers Some institutions are hesitant and/or student counseling cen- to offer easy access to records ters for the last three years. that are, in theory, public. ° Compare those numbers to • A FOIA request to the U.S. De- Clery Act statistics submitted to partment of Education might the Education Department, as be needed to obtain records well as those published in the of Clery Act complaints filed annual campus security report. against a school.

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 101 • A FOIA request would also • You could also consider send- come in handy to gain access ing an e-mail query on a wide- to records of Clery Act inves- ly read campus listserv ex- tigations conducted by the plaining that you are looking U.S. Department of Education. to talk with students who’ve • Check out the open-records gone through sexual assault letter generator on the Student proceedings on campus. Press Law Center website for help on filing a FOIA request: FERPA — A Potential www.splc.org/foiletter.asp Roadblock: • Schools often incorrectly W ho to Talk To: cite FERPA as a way to block • The campus police department access to judicial records on and the local police depart- sexual assault cases involving ment, and the campus official a “responsible” finding. in charge of putting together • A campus official might re- the annual campus security fuse to turn over records on a report. sexual assault case by arguing • Campus Security Authori- that a student’s identity must ties such as a dean, athletic be protected. However, as long coach, or student activities as the records do not identify coordinator. a student the school should • Advocates for sexual assault not use FERPA as a valid victims at on-campus health reason for turning down your clinics and student counsel- records request. ing centers, nearby rape crisis centers, or an on-campus women’s center.

Ieifd nt ying Sexual Assault Victims to Talk To: • Victim advocates might be willing to introduce you to alleged sexual assault victims.

I nVESTIGATING Complaints • Under Title IX, sex-based dis- • One way to approach victims crimination can include sexual who have filed a Title IX harassment, rape, and sexual complaint with OCR or a Title assault. IX lawsuit is to contact the at- • The U.S. Department of Educa- torneys who have represented tion’s Office for Civil Rights them in their cases. Victim ad- (OCR) monitors Title IX vocates are also a good source compliance: www.ed.gov/about/ to identify students who have offices/list/ocr/index.html filed Title IX complaints with OCR. Find Out if a Title IX Complaint has Been Filed Against Any School in Your State: • For a fee, you could search court records online via PACER, the federal court system’s website: www.pacer.psc.uscourts.gov • You might also try searching for case information through your state court system’s website. This is usually free. ° Key search terms: “Title IX,” “sexual assault,” “sexual harassment,” “rape,” and the name of your school. • File a FOIA request with OCR asking for any and all Title IX complaints involving schools in your state over a certain period of time.

Rsourcee DIRECTORY • The Center for Public for Title IX complaints and Integrity’s series on lawsuits filed against schools. Sexual Assault on Campus: ° Victim Rights Law Center www.publicintegrity.org/ often files Title IX complaints investigations/campus_assault/ on behalf of students and • Investigative Reporters and represents them in proceedings: Editors (IRE): www.ire.org www.victimrights.org/ ° Search the site for tip sheets ° Dart Center for Journalism and and previous stories on campus Trauma: www.dartcenter.org/ sexual assault for ideas on how • Office of Postsecondary Edu- to do your own reporting. Also, cation in the U. S. Department a good resource on FOIA. of Education • Student Press Law Center: ° Runs a database with Clery Act www.splc.org crime data reported by schools: ° SPLC has recently published http://ope.ed.gov/security/ a new edition of “Covering • The Office of Violence against Campus Crime: A Handbook for Women Campus Grants Pro- Journalists.” gram: www.ovw.usdoj.gov/ ° SPLC’s “Student Media Guide • Office for Civil Rights at the to the Clery Act” www.splc.org/ U.S. Department of Education; legalresearch.asp?id=19 monitors Title IX compliance: ° For help with filing FOIA re- www.ed.gov/about/ offices/list/ quests, SPLC provides an open- ocr/index.html records letter generator on its • Handbook for Campus Crime site: www.splc.org/foiletter.asp Reporting Policy Regarding ° Security on Campus: Sexual Assault Statistics: www.securityoncampus.org www.ed.gov/admins/lead/ • Good sources for understand- safety/campus.html#handbook ing how the Clery Act works • International Association of and how schools can violate Campus Law Enforcement Ad- the law; also a valuable source ministrators: www.iaclea.org/

3P REVIOUS ARTICLE SHOW CONTENTS NEXT ARTICLE4 Sexual Assault on Campus ©2010 Center for Public Integrity 104 ° Good source for how campus ° V-Day: A resource for activ- security personnel are trained ism, fundraising and awareness in regard to the Clery Act. about assaults both on and off • Campus Accountability Project: campuses. www.vday.org http://safercampus.org/cam- ° “Take Back the Night”: pus-accountability-project www.takebackthenight.org ° A project maintained by SAFER ° RAINN (Rape, Abuse & Incest and V-Day, which houses National Network): a central database where www.rainn.org students can enter information ° Men Can Stop Rape: about the sexual assault www.mencanstoprape.org policies at their schools: ° The Leila Grace Program: www.safercampus.org/policies www.leilagrace.org • Sexual assault activist groups on and off campus: ° SAFER (Students Active for Ending Rape): A nonprofit organization that focuses on student-led campaigns to reform college sexual assault policies. www.safercampus.org/

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