Allegations of a botched UVA rape investigation at center of a challenge to the Campus SaVE Act

The University of Virginia. Photo:  Dan Addison/UVA Public Affairs The University of Virginia. Photo: Dan Addison/UVA Public Affairs

A month ago this week, UVA President Teresa Sullivan sat at a long table in Newcomb Hall, one of six college leaders on a panel addressing sexual assault on college campuses around the country. The discussion was part of a two-day national conference billed as a proactive effort to solve what Sullivan called “one of the most vexing problems I’ve seen since becoming a president.”

What didn’t make it into the news stories on the dialogue was that UVA was about to take a more central and less welcome role in the debate over how to stop college sexual assault.

Last week, a Jane Doe who claims UVA botched the investigation of her own reported 2011 rape at the University filed a lawsuit to force a resolution in a long-running investigation into the University’s sexual misconduct policy.

Filed in federal court in Washington, D.C. on March 6, the suit is intended as a landmark civil rights action that could derail the controversial Campus Sexual Violence Elimination (SaVE) Act, according to Doe’s attorney James Marsh. Touted as a major reform turning point by supporters, SaVE pushes more responsibility for preventing sexual assault onto colleges. The new federal law gets some things right, Marsh said—particularly education initiatives aimed at students—but it seriously undermines recent federal efforts to force schools to take a harder line on sexual assault cases.

And without the stick of tough federal laws behind them, colleges and universities won’t crack down on sexual violence, said Marsh. There’s just not enough incentive. “The victims’ lobby pales in comparison to the university presidents’ lobby,” he said. “This is our legal recourse.”

The details of the suit lay bare the accusations at the heart of Doe’s case. Her 30-page complaint against UVA, attached as background to the civil suit, was initially filed with the U.S. Department of Education’s Office of Civil Rights in June of 2012, then folded into a broader DOE compliance review of the University’s sexual misconduct policy. It not only details her alleged drugging and violent rape at the hands of a fellow student, but also accuses UVA health professionals, administrators, and the University’s Sexual Misconduct Board of essentially burying her case.

According to Doe’s complaint, a fellow student slipped into the seat next to her at a debate club meeting at Jefferson Hall on December 1, 2011, touched her thigh and her breast against her will, and handed her a beer.

She drank it and became “substantially incapacitated,” the complaint says, and remembers only parts of what happened next: He took her to his apartment, “raped her, pulled her hair in an effort to penetrate her mouth, and ejaculated on her chest and hair,” it reads, claiming she awoke later naked and in pain, with her bra hanging off her body.

She sought treatment and went to police within a week, but according to the complaint, key information gathered by UVA forensic nurse Kathryn Laughon was never presented to the University’s Sexual Misconduct Board when Doe’s case went before them months later. Missing were descriptions of symptoms of drugging and photos of the interior of her vagina described in one of Laughon’s earlier reports, the complaint says. Marsh said it was his understanding that the ultimate lack of forensic evidence also scuttled any hopes of prosecution in the case.

The complaint goes on to say the male student confirmed much of what Doe remembered to the board, including digitally penetrating her, despite acknowledging her having said no to any sexual contact.

There are more allegations in the complaint: That the accused got to review and control which parts of his taped police testimony were shown to the Sexual Misconduct Board while Doe didn’t; that he was allowed to question her “directly and aggressively,” in violation of UVA policy; that his differing statements indicated he lied about giving her beer and taking off her clothes.

He was eventually cleared of all but one count, it says—touching her at the debate club meeting. That was despite the board finding in its final decision that the accuser was “very compelling and believable” and the accused “disrespectful” and “offensive,” according to the complaint.

And there, according to Marsh, was the sticking point, and the proof that UVA wasn’t following its own rules.

In April 2011, the Department of Education issued a “Dear Colleague” letter to administrators across the country, detailing a policy update that made failure to adequately combat sexual assault a violation of Title IX, the 1972 gender inequality law. A key component of the change was the requirement that college discipline boards adopt a more relaxed burden of proof when weighing internal sexual assault complaints. Like many other elite institutions, UVA had adhered to a “clear and convincing” standard; the memo demanded a switch to a preponderance standard, meaning that to find in favor of an alleged victim, it must simply be more likely than not that an assault took place.

The University updated its sexual misconduct policy in the summer of 2011 to bring it into line with the new guidelines. But Doe’s complaint calls into question whether UVA followed those guidelines when it came to her case. How could it call her credible, the complaint asks, but find in favor of her alleged rapist?

Last month, a year and a half after she filed the complaint, the federal government still hadn’t answered her. The implementation of the Campus SaVE Act loomed, said Marsh, a piece of legislation he said looks like reform, but actually masks big backwards steps in combating college sexual assault—most notably, by eliminating the preponderance standard set forth three years ago by the DOE. It also removes the time limit for colleges to resolve sexual assault cases.

So his client is petitioning a judge to force a resolution in the long-stalled federal investigation of UVA’s policy, demanding, in essence, that both the government and the courts square the contradictory regulations now on the books.

“We’re trying to make these issues public, get them discussed, to have the Department of Education indicate how they’re going to be proceeding in these cases,” Marsh said. “This is really a test case.”

UVA spokesman McGregor McCance said the University is committed to confidentiality when it comes to issues of sexual misconduct, so “we must decline to make any remarks relative to the former student’s case that was adjudicated last spring or to the federal suit regarding the Campus SaVE Act.”

Of the specific allegations in Jane Doe’s complaint, he said only that the University “has investigated those claims.”

But UVA takes sexual misconduct seriously, said McCance. “We are committed to enhancing understanding and raising awareness of this important matter, including contributing to the national discussion about strengthening how universities are addressing this issue,” he said.

Marsh said his client’s case—and her long wait for an answer from the government—is evidence that it’s going to take more than that to stop sexual violence on college campuses. The suit is leverage, he said in a fight to push UVA and schools like it to protect women.

Without clear rules for handling rape cases, “what can happen is you have a long, slow, wide, and disparate watering down of women’s rights,” said Marsh.