Burden of proof: UVA’s sexual assault policy under fire

Boston attorney Wendy Murphy filed a complaint against UVA with the Department of Educations Office of Civil Rights in June, claiming the school isn’t following its own sexual misconduct policy. The agency was already conducting its own investigation of UVA’s policy. Photo by Elise Amendola. Boston attorney Wendy Murphy filed a complaint against UVA with the Department of Educations Office of Civil Rights in June, claiming the school isn’t following its own sexual misconduct policy. The agency was already conducting its own investigation of UVA’s policy. Photo by Elise Amendola.

On September 23, a UVA student was forced into a bathroom at an off-campus party and raped. Five days later, a second student was shoved against a wall near Monroe Hall and sexually assaulted. Last week came details of a violent attempted abduction and rape on Stadium Road. Each incident drew attention: brief reports in the papers; heightened vigilance.

But rape at UVA was already under scrutiny at the start of the semester. It’s easier to deal with the outside menace than it is to confront the murkier and far more common problem of sexual assault between people who know each other, and that’s where a prominent women’s rights attorney says the University is falling short. The fact that UVA’s sexual misconduct policy is under investigation by the Department of Education indicates she’s not the only one.

Wendy Murphy, an adjunct professor at the New England School of Law and a frequent media commentator on issues of women’s rights, has a reputation as a firebrand. “I’m an activist with my feet in the courts,” she said. Her battle cry is blunt: “The law is designed to facilitate and perpetuate violence against women and children,” she said.

Murphy has been using litigation to push schools to take a tougher stance on sexual violence for years. Now, she says, federal guidelines are catching up.

On April 4, 2011, the U.S. Department of Education’s Office of Civil Rights (OCR) issued a “Dear Colleague” letter, a 19-page policy memo that landed on the desks of deans and administrators across the country and laid out colleges’ responsibilities when it comes to preventing and addressing sexual harassment and assault under Title IX, the 1972 gender equity law.

Most notable was a clear directive about the standard of proof for sexual misconduct. For decades, many schools—UVA included—had used a “clear and convincing” standard, requiring a panel to find it “highly probable or reasonably certain” that harassment or violence occurred before ruling in favor of a victim. But the government requires only a preponderance of evidence in a civil rights dispute—that is, it must simply be more likely than not that the act took place. Schools must do the same, the letter said, regardless of what a police investigation might turn up.

Some felt it was an overstep. The Foundation for Individual Rights in Education, a nonprofit that primarily advocates for free speech rights on college campuses, said the lower standard threatened accused students’ rights to due process, and joined the National Association of Scholars and the American Association of University Professors in a formal objection.

Still, the preponderance standard was becoming the norm. About 80 percent of colleges had already adopted it when the letter was issued. Murphy has gone after several who hadn’t, including UVA. OCR declined jurisdiction on a 2010 complaint she filed against the University, but the agency was already preparing to tackle the holdout schools head-on. In addition to the Dear Colleague letter, OCR initiated compliance reviews at several colleges, a step reserved for “problems that appear particularly acute,” according to the agency’s website.

In May 2011, a few weeks after getting OCR’s letter, UVA announced major revisions to its sexual misconduct policy. Among the changes: A shift to the preponderance standard when adjudicating cases.

That wasn’t enough to satisfy OCR, which placed UVA under review the following month. Almost a year and a half later, the investigation is still going on, a Department of Education spokesman confirmed. And while the University announced its 2011 policy changes and accompanying two-week public comment period with great fanfare, the compliance review has received barely a mention, apart from an e-mail to students, faculty, and staff last month informing them that the University had been “chosen” for review and offering OCR’s contact information so they could weigh in. No mention of the investigation appears on UVA’s Sexual Violence Education and Resources website.

Murphy filed another complaint against the University in June of this year, claiming that the school violated its own policy in the case of her client, a student who said she was raped in an off-Grounds apartment in December 2011 after being drugged at a club function. Despite finding the student “credible and compelling,” a panel ruled in favor of the accused, said Murphy. And that’s a problem.

“The preponderance standard is simple,” Murphy said. “When her accusations are deemed credible, and his denials are not described with the same glowing terminology, she wins.”

The student at the center of the case shared her story last month, authoring an emotionally charged post on Murphy’s Facebook page that was widely circulated among students. Murphy’s client asked C-VILLE to allow her to remain anonymous, but confirmed she wrote the piece. It detailed her rape and the University-led investigation that followed, a process she said violated her rights by letting her rapist go unpunished. When an official read the verdict, “I ran out of the room, sobbing uncontrollably like never before, and hid under a desk, wishing I could just die there,” she wrote. “My own school, that I loved so much, failed to protect me.”

UVA’s response to the post was a lengthy statement defending its policy and saying that while privacy laws mandate that the school not discuss the details, the post contained “multiple misstatements and omissions of facts that are material to that case.” The statement said UVA faithfully followed its own rigorous guidelines.

“We welcome constructive dialogue on this issue,” read the statement.

But UVA has since been silent. A request for comment on OCR’s compliance review was denied, as were requests for interviews with Dean of Students Allen Groves and Associate Dean and Chair of UVA’s Sexual Misconduct Board Nicole Eramo.

Meanwhile, others are taking interest. The ACLU of Virginia is conducting an investigation of Virginia schools’ sexual assault policies, including UVA’s.

“We want to make sure the process is fair,” said Katherine Greenier, a women’s rights expert at the ACLU. “But the process should not be a barrier that prevents victims of sexual assault from coming forward.”

Murphy contends UVA and other schools have hedged on adopting the lower standard because they fear it will require not just a cultural shift in how the school views sexual assault, but the refocusing of vast resources to prevention.

Holding victims to a stricter standard in policy or practice allows schools to have their cake and eat it, too, she said. “They can say to the victim, ‘We care about you. We want you to get better. But at the hearing we’re going to rule in his favor, because while we believe you’re telling the truth, we don’t believe you that much that we want to punish him.’”—Allie Cooper and Graelyn Brashear