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

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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.

  • alibama

    inappropriate contact constitutes an honor offense in any reasonable sense of the word…
    lie to me all day, cheat me occasionally, and steal if you must… but rape? different level altogether. I hope she drains them for millions… folks seem to learn after that.

    • Recent Alum

      The problem with classifying it as an honor offense is that it would be in direct violation of the Dear Colleague Letter, which requires a preponderance of evidence as the evidentiary standard. The Honor Code requires evidence Beyond a Reasonable Doubt. You could maybe have two different trials, but then you’re jumping into Double Jeopardy land. The problem with reporting only this side of the story is that it is just that – only one side of the story. The victim can talk about her own trial all she wants, but the University is legally bound to confidentiality at the risk of violating Title IX yet again. They are unable to speak to these accusations, which people take as them covering up further, when in fact they just cannot talk. It sounds fishy, I agree, and I’m glad it’s going to a real court with people who (hopefully) know what they’re doing. I just wish people would do something constructive instead of just blindly bashing something over which you have no control. Volunteer at a Women’s Center, rape crisis hotline, or some other place where you can educate men and women to try to stop this stuff before it even happens.

  • UVAcoverups

    “Botched” infers UVA messed up. The Complaint infers no such thing! The Complaint I read claims the forensic UVA nurse wrote conflicting reports (not a botch) and wrote she took photos of procedures. Those photos disappeared. Why? Then the victim was reexamined by an independent forensic nurse who provided a report that stated the victim was clearly assaulted. The victim had also gone to another Charlottesville hospital where the diagnosis was “sexual assault” and UVA redacted that finding so the SMB panel did not see it. All these issues according to the complaint were raised in an appeal filed with UVA’s JRC but the Decision was upheld. Sounds to me UVA is in the business of suppressing evidence and cover up.

    What about the conflicts? The nurse is married to the Deputy Commonwealth Attorney in Cville and was Chair of UVA’s SMB Advisory committee. Come now these are serious conflicts and does anyone actually believe they are just coincidences.

    Go read the Complaints. There were two complaints filed. One at the DoE and the other at DHHS. They are posted on: http://www.childlaw.us/

    The DHHS complaint is the more interesting one. It virtually explains why there’s never any prosecutions. UVA has its hands and influence everywhere.

    What about the 38 other cases this UVA nurse talked about between 2008-2010? Is there never enough forensic evidence? How many girls have been duped by forensic exams at UVA?

    This needs a DoJ investigation and people need to be prosecuted if there was a deliberate cover up of dozens of UVA related sexual assaults.

    Using the word “Botched” misses the point of these complaints. This suit is not for money. It is requesting a US Federal Judge to push the DoE and DHHS to make a decision on the allegations made against UVA. That UVA failed to apply the Standard of Preponderance of the Evidence, which UVA claims it used in this case. The preponderance standard basically means who is more believable. When the SMB panel stated in their Decision that the Victim was “compelling” and the accused wasn’t then it means the accused lost. The panel came to that conclusion even though the forensic evidence was suppressed. Wow! Imagine if they had seen the evidence. Now we know why no-one is ever expelled from UVA!!!!!!!!!

  • Quancho

    Why did the alleged victim not call the police (the real ones) on the morning of December 2, 2011? Rape is a matter for police and prosecutors, not deans and professors and doctors and nurses, to handle. Let’s either put Virginia state universities back in an in loco parentis role, or else get them out of the business entirely.

    • UVAcoverups

      Read the complaint. The Charlottesville Police took her to the UVA hospital. Everyone in law enforcement in Charlottesville is connected directly or indirectly to UVA. The UVA nurse was married to the deputy prosecutor. He is now a judge! Do not expect anyone to prosecute a UVA student for sexual assault on another UVA student. Not going to happen. Just like all the other colleges in this country. The details are in the complaints.

      • Quancho

        What’s in the complaint are merely the alleged victim’s contentions. The article says she “sought treatment and went to police within a week.” Why did she not call the police on the morning of December 2?

        • UVAcoverups

          Contentions? Seriously? That’s what you read? If someone stole your wallet and you reported it a week later does it really matter, especially if you have evidence? You sound so much like the very people that engage in covering up sexual assault in colleges nationwide. Why don’t you ask UVA why they have never expelled anyone for sexual assault? Can there truly be a rational explanation for it? An institution of higher education that seems so casual about sexual assault is an oxymoron. God forbid you cheat, then there’s no problem proving those “contentions” but rape, that’s fine. The mantra is that it is impossible to find anyone guilty of rape under a preponderance standard in UVA, because that is what the track record is to date. Oh by the way many victims have gone to the hospital the next morning and coincidentally there’s never enough evidence. Shucks, it’s just hard luck!

          • Quancho

            Universities are there to provide us with research and teaching, not to act as amateur police departments and kangaroo courts. Let the real policemen and real prosecutors do their jobs. College administrations are ill-suited for such things.

          • UVAcoverups

            So you switched subjects but in some ways I find myself agreeing with you that the University does oversee kangeroo courts and is unable to be objective.
            Interestingly, you fail to address the fact that UVA students somehow never get prosecuted for sexual assault in Charlottesville. WHY? Are you saying the police in Charlottesville are amateurs too because they NEVER arrest a UVA student accused of rape? Is the Commonwealth Attorney not a real prosecutor? He is after all UVA college and law school educated and seems to have no trouble prosecuting non UVA students for sexual assault. As my granny used to say the proof is in the pudding. The numbers are so bad that there is no doubt that something is seriously amiss. It’s also interesting that the good folk in Charlottesville are not troubled by any of these statistics. They are concerned enough to have a Human Rights Commission but not when it is applied to the women students at the University. The real problem in Cville is that somehow the same “College Administrators” you refer to as being “ill-suited for such things” spills over to law enforcement. I wonder how on earth that connection is even possible? So many public servants working for the good of UVA would partially explain it. I’ve heard from some that UVA is a law onto itself and locals are told to butt out. All of the leadership in Cville law enforcement are imported from outside and have strong ties to UVA So your sound advice that a victim should “let the real policemen and real prosecutors do their jobs” is very flawed. So suck it up UVA students. When you get raped you stand ZERO chance of any justice. How many victims have been trashed in the local media over the years? The Hook is no longer in business so there has been an eerie silence for several years. Oh I forgot to mention that Giant of a Leader, President Sullivan, changed the SMB rules and solved the entire problem. End of….

          • sensoria

            The Human Rights Commission is one of the biggest farces around. Don’t forget two of our City Councilors also have very strong ties to UVA so don’t expect them to empower it to say or do anything about the rape problem at the University any time soon.

          • Quancho

            “Human rights” commissions should stick to “human rights,” whatever those are, and leave criminal prosecutions to police and prosecutors.

          • Quancho

            The most likely explanation is the simplest one: that real student-on-student rapes are as rare as white tigers.

          • UVAcoverups

            LOL – You belong in the Dean of Students Office. Remember, things have a way of boomeranging. That statement will come back to haunt you one day and only you will know. I learned a long time ago not to judge. Clearly you still have to learn that lesson. Some call it devine justice or Murphy’s law and others KARMA. :)

          • Anonymous Sleuth

            I was reading your posts and initially thought of you as a devil’s advocate, but your white tiger statement is very egregious. Calling you misogynous would be an understatement. It took your real prosecutor 20 years to prosecute Liz Securo’s rapist, who confessed to his crime and even then no-one followed up on the other two perps who he could have named. Then the rapist was freed early due to a paperwork error. There was another case where a UVA perp was prosecuted 10 years ago because he too confessed to sodomizing a fellow student when she was passed out drunk in a toilet. He got 3 months!!!! The big surprise was that UVA suspended him and he then went on to attend law school in Richmond. What you want everyone to believe is the 1 in 4 number, that is an FBI number is false. The college industry also accepts the number is about 1 in 4 or 5 of which 5% report. That’s not as rare as white tigers. What you actually should have said is the number of perps who get expelled or prosecuted is as rare as white tigers. It would be cute if this wasn’t a serious subject.

          • Quancho

            It’s not a serious subject; it’s more of a feminist hobby horse.

          • UVAcoverups

            Sleuth, you’re wasting your time. There’s an army of Quanchos in UVA. Its the number one party school in the country. They think screwing drunk girls or drugging them is “consensual sex” or as the VP of Students up until last year referred to it as “regret sex” in public emails (http://www.washingtoncitypaper.com/blogs/sexist/2010/04/26/the-university-of-virginia-excells-in-rape-euphemism/). The Alumni come down to the school for the parties. It’s a really sick place. They know when they come to party in their “homeland” they can do it with impunity. The Frats and the Alumni will stop their donations if the boys can’t have their fun. Anyone reading now understands that misogynists like Quancho are alive, well and thriving at UVA.

            Rape is a feminist hobby horse, must be watching too much Game of Thrones!

        • patricia gala
  • UVAcoverups

    Why is there no mention of this Federal case that involves UVA in the Cavalier Daily? um…..

  • Susan Russell

    1984 …. 2004 … 2014 … Nothing Changes except the calendar date. Mrs Sullivan, where are you??????

    http://www.uvavictimsofrape.com

  • UVAcoverups

    What is shocking about this is that there is no outrage! No mention of it on grounds nor in Charlottesville. How safe are women in Charlottesville when law enforcement turns a blind eye to student victims? Is there no rule of law in Charlottesville? The Commonwealth Attorney should be ashamed of himself!!!!! Where is the Attorney General of Virginia? Where is the Attorney General of the United States?

    You can cover it up as much as you want but one day this will come back to bite you. It took 10 years to get Sandusky. Your turn will come and you will hopefully be perp walked out of your offices. You can justify so much under “he said, she said” but when you go that extra mile to cover up felonies, its a CRIME.

    How can any woman stand by, watch this go on and then help cover it up? The sad part is all of the people involved in this case are women, even though the latter is not an apt description.

    As for President Sullivan, she is in hiding!!!!!!

  • patricia gala

    Sullivan, our University president recently closed “Dialoge at UVA Sexual Misconduct among College Students ” conference a few short months ago with this statement:
    “We learned that although administration can set an institutional tone,
    students need to talk to each other,”….. and added “We need to make the
    conversation about sexual assault an integral part of the student
    experience.” REALLY???

    That where the problem begins, it flows directly into the UVA Womens Center, police, deans, intil it reaches the protected class of legacy students, athletes, scholarship recipients…. and the problem will get worse until we make a change.

  • patricia gala
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