Sexual Assault on Campus

Kristen Lombardi, Sexual Assault on Campus. The Center for Public Integrity. 1 December 2009. “Students found ‘responsible’ for sexual assaults on campus often face little or no punishment from school judicial systems, while their victims’ lives are frequently turned upside down, according to a year-long investigation by the Center for Public Integrity. Administrators believe the sanctions administered by the college judiciary system are a thoughtful way to hold abusive students accountable, but the Center’s probe has discovered that “responsible” findings rarely lead to tough punishments like expulsion — even in cases involving alleged repeat offenders.” Multi-part series of articles.

Excerpts from stories:

Sexual assault on campus shrouded in secrecy. “High rates of rape, closed hearings, and confusing laws.” 1 December 2009.

[A year-long] investigation by the Center for Public Integrity has found that a thick blanket of secrecy still envelops cases involving allegations of sexual assault on campus. One national study reports that roughly one in five women who attend college will become the victim of a rape or an attempted rape by the time she graduates. But while the vast majority of students who are sexually assaulted remain silent — just over 95 percent, according to a study funded by the research arm of the U.S. Justice Department — those who come forward can encounter mystifying disciplinary proceedings, secretive school administrations, and off-the-record negotiations. At times, policies lead to dropped complaints and…gag orders later found to be illegal. Many college administrators believe the existing processes provide a fair and effective way to deal with ultra-sensitive allegations, but alleged victims say these processes leave them feeling like victims a second time.

The Center has interviewed 48 experts familiar with the disciplinary process — student affairs administrators, conduct hearing officers, assault services directors, victim advocates — as well as 33 female students who have reported being raped by other students. The inquiry has included a review of records in select cases, and examinations of 10 years worth of complaints filed against institutions with the U.S. Education Department under Title IX and the Clery Act — two laws requiring schools to respond to assault claims and to offer key rights to alleged victims. The Center has also surveyed 152 crisis-services programs and clinics on or near college campuses nationwide over the past year.

Just over half the students interviewed by the Center have reported they unsuccessfully sought criminal charges and instead had to seek justice in closed, school-run administrative proceedings that led either to academic penalties or no punishment at all for their alleged assailants, leaving them feeling betrayed by a process they say has little transparency or accountability. Some of those students…said they were ordered to keep quiet about the proceedings and threatened with punishment if they did not. Still other students said administrators discouraged them from pursuing rape complaints. Survey respondents indicated similar problems with the closed procedures on campuses.

Undoubtedly, another law, the Family Educational Rights and Privacy Act, complicates the issue. FERPA forbids schools from divulging students’ educational records, including disciplinary records. Administrators believe it binds them to silence on case details, but others aren’t so sure. Under FERPA, colleges can release names of students found “responsible” for committing violent acts. But “we don’t,” concedes Rick Olshak, associate dean of students at Illinois State University, “and I don’t know anyone who does, frankly.” Victim advocates contend that colleges use the law as a smokescreen to cover up campus crimes….

Internal disciplinary panels, like the UVA Sexual Assault Board, exist in various forms on most campuses. But they’re not the only way schools handle rape allegations. For decades, informal proceedings run by an administrator have represented the most common method to adjudicate disciplinary matters. Typically, an administrator meets with both students, separately, in an attempt to resolve a complaint. Occasionally, they “mediate” the incident. Officials find such adjudication appealing in uncontested situations. If a dean elicits a confession, says Olshak, of Illinois State, who headed the student conduct association in 2001, “We’ll be able to resolve the complaint quickly, easily, and without the confrontation of a judicial hearing.” Resolution, as in formal hearings, can mean expulsion, suspension, probation, or another academic penalty, like an assigned research paper. By all accounts, informal processes take place almost as frequently as formal ones….

[However,] victim advocates [often] charge [that] informal proceedings serve to sweep campus assaults under the rug. Both the Justice Department and the Education Department explicitly say in guidance documents that schools should not encourage mediation in sexual assault cases….

More formal proceedings are sometimes no less shrouded. College disciplinary hearings, unlike courts, lack the trappings of transparency — campus spectators. Advocates can’t attend unless serving as “advisers” to students. Only integral participants like board members or administrators have any clue when a hearing occurs….

Campus sexual assault statistics don’t add up. “Troubling discrepancies in Clery Act numbers.” 2 December 2009.

A [year-long] investigation by The Center for Public Integrity has found that limitations and loopholes in the federal mandatory campus crime reporting law, known as the Clery Act, are causing systematic problems in accurately documenting the total numbers of campus-related sexual assaults. The most troubling of these loopholes involves broadly applied reporting exemptions for counselors who may be covered by confidentiality protections. Confusion over definitions of sexual offenses, as well as the law’s comprehensive reporting provisions, have created additional problems. “When you talk to 10 different institutions,” explains Marlon Lynch, president of the International Association of Campus Law Enforcement Administrators, “you almost find 10 different ways of reporting under the law.”

Available data suggest that, on many campuses, far more sexual offenses are occurring than are reflected in the official Clery numbers….

The Clery Act requires some 7,500 colleges and universities — nearly 4,000 of which are four-year public and private institutions — to disclose statistics about crime on or near their campuses in annual security reports. Many provisions have evolved since the law passed 19 years ago, but what hasn’t changed is Clery’s requirement that schools poll a wide range of “campus security authorities” when gathering data. That designation includes a broad array of campus programs, departments, and centers, such as student health centers, women’s centers, and even counseling centers. The designation also applies to officials who supervise students — deans, coaches, housing directors, judicial affairs officers, to name a few. Experts on the law say that any center or program set up by an institution to respond to crime victims and to serve their needs should be designated a campus security authority, requiring Clery reporting. Only licensed mental-health and pastoral counselors are explicitly exempt from Clery reporting requirements.

In theory, those stipulations should make for comprehensive crime reporting….

But the data gathering isn’t always meticulous. In fact, a 2002 study funded by the U.S. Department of Justice found that “only 36.5 percent of schools reported crime statistics in a manner that was fully consistent with the Clery Act.” A Center examination of 10 years worth of complaints filed against institutions under Clery shows that the most common problem is that schools are not properly collecting data. Some submit only reports from law-enforcement officials….

Other schools submit inaccurate sexual assault statistics — in some cases inadvertently; in others cases, intentionally. Nearly half of the 25 Clery complaint investigations conducted by the Education Department over the past decade determined that schools were omitting sexual offenses collected by some sources or failing to report them at all….

Rape generally ranks among the most underreported of all crime statistics, experts say. But critics point out that the huge percentage of schools reporting no incidents whatsoever indicates a serious problem with Clery data collection. In 2006, in fact, 3,068 two- and four-year colleges and universities — 77 percent — reported zero sexual offenses. Another 501 reported just one or two.

All those miniscule totals look like red flags to watchdog organizations….

Another limitation of the Clery Act: it counts only those crimes occurring on or near campuses, and in school-affiliated buildings like fraternity houses. The initial thinking behind this narrow geographic focus was that off-campus crimes would inevitably be documented by local police, experts say. But that means that Clery statistics don’t include such settings as off-campus apartments, where most campus-related rapes are believed to take place….

Under the law, licensed therapists and pastoral counselors are the only campus employees excluded from reporting requirements. Schools can still use aggregate information — minus names and other identifying information — on sexual assaults from counseling centers, experts say. And interviews with survey respondents reveal that some colleges designate a center staffer as a campus authority for Clery purposes. Others offer a blanket exemption to the entire counseling staff, however, fueling criticisms that administrators are merely exploiting a loophole to keep official statistics low. Even Education Department officials suggest as much….

[T]here’s little doubt that the differing interpretations of the law are sowing confusion — with one school submitting sexual assault statistics beyond what’s required and another the bare minimum. Ultimately, these loopholes, coupled with the law’s limitations, can render Clery data almost meaningless. Victim advocates point out that the schools they believe are reporting the most accurate sexual assault numbers — the 10 percent who reported three or more rapes in 2006 — now have to compete with all those schools touting zeros.

Barriers curb reporting on campus sexual assault. “Lack of response discourages victims of rape, other crimes.” 2 December 2009.

[S]tudents reporting sexual assault routinely say they face a host of institutional barriers in pursuing the on-campus remedies meant to keep colleges and universities safe, according to a [year-long] investigation by the Center for Public Integrity. The result, say experts, is a widespread feeling that justice isn’t being served, and may not even be worth pursuing.

In conducting its probe, the Center interviewed 48 experts familiar with the college disciplinary process — lawyers, student affairs administrators, conduct hearing officers, assault services directors, and victim advocates. The inquiry included a review of hundreds of pages of records in select cases, and examinations of 10 years worth of complaints filed against institutions with the Education Department under Title IX and the Clery Act, as well as a survey of 152 crisis services programs and clinics on or near college campuses. The Center also interviewed 33 women who reported being sexually assaulted by other students. Sexual assault includes not only rape, but also a variety of sexual offenses.

Crisis counselors and service providers who work with college students described barriers as overt as a dean expressing disbelief. These counselors cited institutional barriers on campus more often than any other factor as a discouragement to students pursuing complaints of sexual assault, according to a Center survey of 152 on- and off-campus centers that provide direct services to victims.

Lawyers pointed out failures as subtle as an institution’s neglecting to provide access to a professional victim’s advocate to guide students through a complicated and intimidating process. Students cited fears that their friends would get in trouble for drinking or drug use, or that their names would not be kept confidential. Many alleged victims told the Center they had encountered roadblocks from their schools. Of those students who said they’d met discouragement, most transferred or withdrew from their schools, while their alleged attackers were almost uniformly unpunished.

Some of the most fundamental obstacles to students pursuing sexual assault complaints are also illegal, say lawyers. Colleges and universities may be flouting federal laws like Title IX, which bans sex discrimination in education, and the Clery Act, which is intended to document campus crime. (See our companion story for more on the laws that govern how colleges and universities respond to sexual assault.) These laws require that institutions investigate and take action to end sexual assault, and mandate policies for addressing complaints on campus.

Together with the personal and social barriers to reporting — some of them unique to college — these institutional hurdles help explain the silence that often envelops sexual assault on campus. College students report sexual assault even less often than the general public does, a 2000 Justice Department-funded report found. That report concluded that more than 95 percent of students who are sexually assaulted remain silent….

[F]or rape survivors who believe that their college stood in the way of pursuing a sexual assault complaint, the experience of dealing with the school can be traumatizing. “They feel like someone they trusted their lives with has betrayed them,” says S. Daniel Carter, director of public policy at the college safety advocacy group Security On Campus Inc. “It’s as life-altering — if not more so — than the rape or sexual assault itself.”…

[S. Daniel] Carter, of Security On Campus Inc. [a college safety watchdog group], said that colleges and universities dissipate students’ confidence in their adjudication systems by failing to coordinate between offices, or by failing to provide access to a single, well-trained point person who can lead them through the process. “The most pervasive problem for students victimized by sexual assault on campuses,” he says, “is a lack of support structures for victims to come forward.”

Title IX, the anti-discrimination statute, is best known for its application to women’s sports, but the regulations implementing it require grievance procedures that provide for “prompt and equitable resolution of student and employee complaints.” The law leaves room for interpretation, and in 2001 the Education Department’s Office of Civil Rights issued additional guidance. If a school knows — or even if it should know — of possible sexual harassment, including assault, it must take “immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.” It is also this guidance that mentions that schools must designate a coordinator for Title IX responsibilities — the point person Carter describes.

According to its own published guidelines, the Office of Civil Rights avoids finding schools in violation of the statute when it can find a way to cooperate with schools to fix problems, but it found institutions with no coordinator, no clear policy for handling sexual assault complaints, or alleged victims who were not informed of their right to pursue disciplinary complaints….

The roadblocks to campus justice, however, are often more subtle than that, says Diane Rosenfeld, a Harvard law professor who specializes in Title IX law. They can come in the form of a dean’s apparently innocuous suggestion to get counseling, or take a semester off, rather than risking a campus judicial process that won’t succeed.

“As I see it,” she says, “that’s a way of silencing victims and keeping these cases quiet.”

A lack of consequences for sexual assault. “Students found ‘responsible’ face modest penalties, while victims are traumatized.” 24 February 2010.

[The year-long investigation by The Center for Public Integrity] reveals that students deemed “responsible” for alleged sexual assaults on college campuses can face little or no consequence for their acts. Yet their victims’ lives are frequently turned upside down. For them, the trauma of assault can be compounded by a lack of institutional support, and even disciplinary action. Many times, victims drop out of school, while their alleged attackers graduate. Administrators believe the sanctions commonly issued in the college judicial system provide a thoughtful and effective way to hold culpable students accountable, but victims and advocates say the punishment rarely fits the crime.

Additional data suggests that, on many campuses, abusive students face little more than slaps on the wrist…

College administrators stress that the sanctioning in disciplinary matters reflects the mission of higher education. Proceedings aren’t meant to punish students, but rather to teach them. “We’d like to think that we can always educate and hold accountable the student,” says Pamela Freeman, associate dean of students at Indiana University…. But victim advocates question this notion. “There’s no evidence to suggest that a college campus can rehabilitate a sex offender,” says Brett Sokolow, of the National Center on Higher Education Risk Management, which consults schools on sexual assault policies. “So why are we even taking that chance?”…

Administrators stress that the college judicial system is, as IU’s [Pamela] Freeman [associate dean of students at Indiana University], who heads the Office of Student Ethics, says, “not the same thing as a court of law.” Unlike criminal courts, which enforce rape statutes, college proceedings enforce “conduct codes” that list prohibited acts like “sexual assault” or “sexual contact.” Their hearing boards operate under different procedural rules and evidence standards. Even their mission differs from the criminal justice system: Verdicts are educational, not punitive, opportunities….

Critics say the college system is ill-equipped to handle sexual assault cases. Schools may designate an “investigator” to assess a complaint’s merit. But they cannot subpoena records and witnesses to sort out conflicting testimony. Many train hearing boards on policies for adjudicating alleged assaults, but those sessions can only begin to address complexities. “Why would we expect university judicial boards to handle [difficult cases] right?” asks David Lisak, of the University of Massachusetts-Boston, who has trained administrators on combating sexual violence.

Many administrators agree they would rather the criminal justice system take on cases involving campus rape allegations — if only it would. Prosecutors often shy away from such cases because they are “he said, she said” disputes absent definitive evidence….

Colby Bruno, managing attorney at the Victim Rights Law Center, in Boston…has routinely seen responsible students slapped with deferred suspensions, probations, even no penalties at all. “I don’t understand in what crazy universe rape or sexual assault doesn’t warrant expulsion,” she adds….

Some victim advocates argue that anything less than expulsion — or a years-long suspension — violates the Title IX federal law banning sex discrimination in education. Under Title IX, schools must meet three requirements if they find a sexual assault has occurred: end a so-called “hostile environment”; prevent its future occurrence; and restore victims’ lives. “None of that says you have to educate the offender,” says Sokolow, of the Higher Education Risk Management Center. And when punishment fails to fulfill these obligations, adds Sokolow, who trains schools on the law, “That has the potential to violate Title IX.”

Administrators note that the law does not require expulsion in sexual assault cases or specify any punishment. For them, the practice of combining penalties makes for effective and legal sanctioning without jeopardizing the educational mission. But lawyers contend that colleges and universities are missing the broader legal point: By not punishing culpable students, schools are setting up student victims for years of anguish because they have to encounter their alleged assailants over and over.

“It’s really a question of entitlement to education,” says Diane Rosenfeld, a Harvard law professor who specializes in Title IX. Often, she notes, student victims become deprived of this legal guarantee because they choose to leave school rather than have to face their alleged attackers, even accidentally. “Expulsion should be a given under Title IX,” Rosenfeld adds. She, like many critics, wonders how leaving an alleged perpetrator on campus would not perpetuate a hostile environment.

‘Undetected rapists’ on campus: A troubling plague of repeat offenders. “A chilling case at a friendly school–sexual assault at Texas A&M.” 26 February 2010.

[Elton] Yarbrough is one of six alleged serial offenders at colleges across the country the Center for Public Integrity found during its year-long investigation of sexual assault on college campuses. The six were accused of assaulting multiple women in court records, campus records or other public documents.

However, students who reported being raped by fellow students told the Center of at least five other men whom they suspected of, or had heard of, assaulting other women. Those men probably look a lot like Yarbrough did to Texas A&M administrators and to his fellow students: A promising young student with an outstanding resume of achievements. As one of his accusers would later write in a statement read at a university judicial proceeding, “If you cannot trust another student with a record which appears as impeccable as Elton’s, then who can we really trust in life?”

The number of serial offenders did not surprise psychologist David Lisak, a University of Massachusetts-Boston expert on campus sexual assault.

“This is the norm,” said Lisak, who co-authored a 2002 study of nearly 1,900 college men published in the academic journal Violence and Victims. “The vast majority of rapes are perpetrated by serial offenders who, on average, have six victims. So, this is who’s doing it.”

Yarbrough’s story, and those of the women who accused him, share several commonalities with cases of other alleged repeat rapists. For example, records show that Texas A&M, the nation’s seventh-largest university, was slow to realize it had a possible repeat rapist on campus. Administrators were not aware of Yarbrough’s arrest on a sexual assault charge until more than a week after it had happened and by then police considered him a suspect in another attack months earlier. Once those women came forward, the university eventually became aware of two other women who said they had been assaulted by him. One told the Center for Public Integrity that she had reported the assault a year before to A&M’s student health center and, after getting little support from the university, transferred to another school….

Yarbrough’s tale — and the fact that he’s now in prison — … bucks a trend. The Center’s research, and Lisak’s as well, shows that many prosecutors are hesitant to deal with campus sexual assault cases. Police and prosecutors in the middle-sized city of College Station, Texas, charged Yarbrough, put him on trial, and convinced a jury to sentence him to 18 years in prison, of which he must serve at least nine….

Research by Lisak, an associate professor of psychology at the University of Massachusetts at Boston, showed that 58 percent of male college students who admitted in a survey to actions that amounted to rape or attempted rape also reported having multiple victims. And those serial rapists committed 91 percent of the rapes reported by the survey group. Lisak and his collaborator, Brown University’s Paul M. Miller, referred to the phenomenon as that of “undetected rapists.”…

When campus rapes are reported to police, local prosecutors “aren’t doing a very aggressive job” prosecuting these cases, Lisak said. Alcohol is often involved. “Very often the prosecuting office drops the case because they feel that they can’t prove it, they can’t get a jury to convict. So the vast majority of these rapists never face a trial.”

Additional information:

Sheila Coronel, Steve Coll, and Derek Kravitz, Rolling Stone’s investigation: ‘A failure that was avoidable.’ Columbia Journalism Review, 5 April 2015,  and How Columbia Journalism School Conducted this investigation, 5 April 2015: This report is intended as a work of journalism about a failure of journalism. Last November, Rolling Stone published “A Rape on Campus” by Sabrina Rubin Erdely. Its principal narrative recounted a horrible gang rape at a University of Virginia fraternity. Early in December, Rolling Stone effectively retracted that narrative. Several weeks later, the magazine contacted the Columbia University Graduate School of Journalism about conducting an investigation of what had gone wrong. Rolling Stone provided access to Erdely’s reporting records as well as drafts of the story. The authors enjoyed the freedom to investigate and write about any subject related to “A Rape on Campus” that they judged to be germane and in the public interest. The magazine agreed to publish Columbia’s review in full on its website, after a legal review, but without editing. Rolling Stone also pledged to publish mutually agreed excerpts in its print magazine.”

Excerpts from Rolling Stone’s investigation: “A failure that was avoidable.’

In late 2009, the Center for Public Integrity began to publish a series of articles that helped inspire…stricter federal guidelines [for colleges to manage sexual misconduct]. The articles bared problems with the first generation of campus response: botched investigations by untrained staff members; adjudication processes shrouded in secrecy; and sanctions so lacking that they sometimes allowed rapists, including repeat offenders, to remain on campus while their victims fled school.

The Obama administration took up the cause. It pressured colleges to adopt more rigorous systems, and it required a lower threshold of guilt to convict a student before school tribunals. The new pressure caused confusion, however, and, in some cases, charges of injustice. Last October [2014], a group of Harvard Law School professors wrote that its university’s revised sexual misconduct policy was “jettisoning balance and fairness in the rush to appease certain federal administrative officials.”…

Balancing sensitivity to victims and the demands of verification. Over the years, trauma counselors and survivor support groups have helped journalists understand the shame attached to rape and the powerlessness and self-blame that can overwhelm victims, particularly young ones. Because questioning a victim’s account can be traumatic, counselors have cautioned journalists to allow survivors some control over their own stories. This is good advice. Yet it does survivors no good if reporters documenting their cases avoid rigorous practices of verification. That may only subject the victim to greater scrutiny and skepticism.

Problems arise when the terms of the compact between survivor and journalist are not spelled out. Kristen Lombardi, who spent a year and a half reporting the Center for Public Integrity’s series on campus sexual assault, said she made it explicit to the women she interviewed that the reporting process required her to obtain documents, collect evidence and talk to as many people involved in the case as possible, including the accused. She prefaced her interviews by assuring the women that she believed in them but that it was in their best interest to make sure there were no questions about the veracity of their accounts. She also allowed victims some control, including determining the time, place and pace of their interviews.

If a woman was not ready for such a process, Lombardi said, she was prepared to walk away.

Corroborating survivor accounts. Walt Bogdanich, a Pulitzer Prize-winning investigative reporter for The New York Times who has spent the past two years reporting on campus rape, said he tries to track down every available shred of corroborating evidence – hospital records, 911 calls, text messages or emails that have been sent immediately after the assault. In some cases, it can be possible to obtain video, either from security cameras or from cellphones….

Victims often interact with administrators, counselors and residence hall staff members. “I’ve always found that the people most willing to talk are these front-line staff,” said Lombardi, who said she phoned or visited potential sources at home and talked to them on background because of their concerns about student privacy.

FERPA [Family Educational Rights and Privacy Act] restrictions are severe, yet the law allows students to access their own school records. Students at public universities can also sign privacy waivers that would allow reporters to obtain their records, including case files and reports.

Moreover, there’s a FERPA exception: In sexual assault cases that have reached final disposition and a student has been found responsible, campus authorities can release the name of the student, the violation committed and any sanction imposed. (The Student Press Law Center provides good advice on navigating FERPA.)

Holding institutions to account. Given the difficulties, journalists are rarely in a position to prove guilt or innocence in rape. “The real value of what we do as journalists is analyzing the response of the institutions to the accusation,” Bogdanich said. This approach can also make it easier to persuade both victims and perpetrators to talk. Lombardi said the women she interviewed were willing to help because the story was about how the system worked or didn’t work. The accused, on the other hand, was often open to talking about perceived failings of the adjudication process.