Crimes and punishments: Universities, sexual assault, and why UVA is under investigation

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UVA's Rotunda. Photo: Dan Addison, UVA Public Affairs. UVA’s Rotunda. Photo: Dan Addison, UVA Public Affairs.

This story is part of our ongoing coverage in the wake of the Rolling Stone story on rape at UVA. There’s more: A Q&A with Board of Visitors member Helen Dragas on her reaction to the story, responses from the Rolling Stone reporter and women she interviewed as well as two women who reported their own rapes while students, a look at an alumna’s success raising money for a victims’ defense fund, and information on victims coming forward from a Charlottesville prosecutor. 

Reaction to last week’s Rolling Stone piece that detailed allegations of the 2012 gang rape of a UVA student by fraternity brothers was swift and visceral. There was horror and confusion—why does the University attempt to resolve rape cases at all? Isn’t that the courts’ job? What happens when a student reports a rape to the University? And why hasn’t UVA ever kicked anybody out for rape if we know it happens all the time?

We’ve gathered explanations from sources who understand the good, the bad and the ugly when it comes to fighting sexual assault on college campuses. All of them were quoted in the Rolling Stone story. Here’s the in-depth policy discussion that didn’t make into that narrative.

“Why do universities adjudicate sexual assault at all? Rape is a serious crime, so why do schools treat it like an administrative issue?”

Short answer? They have to.

“Under current federal law, a college or university cannot say, ‘We are not going to have an institutional conduct process to address sexual assault,’” said S. Daniel Carter, director of the 32 National Campus Safety Initiative, which aims to develop practical safety guidelines for colleges. It’s a project of the Centreville-based VTV Family Outreach Foundation, a nonprofit founded in the wake of the 2007 Virginia Tech shooting to fund violence prevention in higher education. Carter was among those who pushed hard for the passage of the 2013 Campus Sexual Violence Elimination (SaVE) Act, an update to the 1990 Clery Act that introduced new demands on colleges when it comes to reporting and adjudicating sexual assault.

It’s worth noting, Carter said, that schools didn’t create sexual assault proceedings because the government told them to. Colleges and universities have long had internal adjudication for all manner of offenses, whether they’re crimes or not.

Then came Title IX of the education amendments of 1972, which says nobody can be denied access to a publicly funded education on the basis of gender. Along with the Clery Act, it helped establish some guarantees for those involved in adjudication processes, Carter said. Because sexual assault overwhelmingly affects women, it’s a gender-discrimination issue for colleges: If an institution receives federal funding, it has to have a system for internally addressing sexual assault claims.

That’s a good thing, said Carter.

“Sometimes, either due to the wishes of the victim or the decisions of a prosecutor, there may not be a criminal justice path,” he said. “That may often leave the college or university as the only venue to provide safety for the victim and others on campus.” Consider, too, he said, that the criminal justice system doesn’t necessarily have the power to keep an accused rapist off campus ahead of a trial—something a victim might feel she needs. A university can do that thanks to Title IX, Carter said.

“Why don’t schools at least report the details of every sexual assault complaint they get to law enforcement?”

“Mandatory reporting to law enforcement is fraught with significant challenges,” said Carter, and no school he knows of has or is considering such a policy.

“We’re talking about an adult victim who has had their autonomy violated, their decision-making ability stripped away from them,” he said of sexual assault survivors. Forcing them to report would be repeating that situation, he said, and the consensus among victims’ advocates is that it would only deter people from coming forward at all.

The Clery Act does require that institutions encourage and support victims if they choose to report to law enforcement—an option Carter said he and many other advocates are strongly in favor of. But it doesn’t require them to report, and the recently passed Campus SaVE Act explicitly says victims have a right not to report.

Not everybody thinks that’s wise.

“You are asking a young traumatized girl to make a decision, and you’re putting the option on the table of doing nothing, going to the police or mediation as if all three options weigh the same,” said Susan Russell, who has been an outspoken critic of UVA’s approach to handling sexual assault ever since her daughter Kathryn attempted to get the man she said raped her in 2004 expelled.

“Kathryn’s Law,” proposed in the Virginia legislature 2011, would have required local law enforcement to be notified of all reported rapes at schools in the Commonwealth. A watered-down version of the act passed without the reporting requirement, and Russell is pushing for new legislation to be considered again in 2015. The attack described in the Rolling Stone piece cried out for mandatory reporting, she said.

“When an administrator knows that a girl has been gang raped by seven people and gives her the option to do nothing, then that administrator is complicit with the crime,” said Russell.

“Where’s the accountability? If this mandated internal process works, why hasn’t anybody been expelled from UVA for rape?”

Good question.

UVA is one of 88 colleges and universities currently under investigation by the Department of Education (DOE) for specific complaints of possible Title IX violations related to their handling of sexual assault cases. Back in November 2012, well before the list of schools under scrutiny was announced in May 2014, C-VILLE reported that the University was under “compliance review” by the DOE’s Office of Civil Rights, something the Rolling Stone story points out is a deeper, broader investigation into systemic issues in the way a school handles sexual assault cases.

“Compliance reviews are not random audits of schools; they are selected based on various sources of information—including statistical data and prior complaints, information from students, parents, advocacy groups, the media and community organizations—and are initiated based on a considered and targeted decision that investigation is necessary in order to remedy possible violations of rights,” said Catherine Lhamon, assistant secretary for Civil Rights at the U.S. Department of Education, in an e-mail interview.

This is not UVA’s first showdown with the DOE over sexual assault policy. In November 2008, the department found UVA had violated the Clery Act when officials told two women who had brought unsuccessful complaints that they were forbidden from accessing their case records unless they swore to keep them confidential. The University wasn’t fined.

We know more about another complaint from a 2011 case that has been folded into DOE’s compliance review thanks to court records filed by a former student known only as Jane Doe. She claims UVA officials violated the school’s own policy in adjudicating her claim by allowing the accused student, whom she says drugged and raped her, to review evidence she never got to see, and by letting him directly question her. She also said that in her case, it’s clear the Sexual Misconduct Board used an evidence standard that was too strict: Since April 2011, the DOE has required that schools find in favor of an alleged victim if it’s “more likely than not” that an assault took place—something known as a preponderance standard—as opposed to the far more strict “clear and convincing” standard used in criminal courts. Jane Doe says the University said she was “credible,” but still didn’t find her assailant guilty of rape.

UVA’s response to these claims has been that it’s fully complying with the DOE investigation, and that it has updated its policies so that they’re in line with current standards.

So why no rape expulsions?

Fourth-year Catherine Valentine, a reporter for the student-run radio station WUVA, wanted to know exactly that when she sat down to interview Associate Dean Nicole Eramo in September. She was reporting on why the University handles honor offenses—lying, cheating and stealing, which are punishable only by expulsion—so differently from sexual assault complaints. The 21-minute interview, which Valentine posted uncut online after the Rolling Stone story was published, reveals a lot about the philosophy that guides UVA’s sexual assault policies. 

Eramo, who has chaired the University’s Sexual Misconduct Board since 2006, works closely with survivors who come to the administration wanting to report sexual assault. Regardless of whether they’re also pursuing a criminal investigation, those who come to the deans to report can ask for no school-led process, seek an informal resolution or opt for a formal trial in front of the Sexual Misconduct Board, which includes at least one student and at least two faculty members, Eramo explained in the interview.

Few people choose the last option. Out of the 38 students who came to her last year, Eramo told Valentine, only nine wanted any action, and only four of those wanted a formal trial.

“You would be very surprised the number of times I hear, ‘I don’t want to get him in trouble,’” said Eramo. Many people have no interest in seeing their rapist expelled, they just want validation and a road map to move forward, she said.

“They’re not looking for that type of sanction,” said Eramo. “They’re looking to be able to look into the eyes of that other person and say, ‘You’ve wronged me in some way,’ and they’re generally quite satisfied with the fact that the person has admitted that they’ve done something wrong.”

When Valentine pressed Eramo to explain why students who admit to sexual assault aren’t kicked out, things got testy.

“If a person is willing to come forward and admit [wrongdoing] when there’s absolutely no advantage to doing so, then that does deserve some consideration,” Eramo insisted.

She also offered an explanation for why the punishment of choice for those found guilty after a trial is suspension. It has to do with the preponderance standard, she claimed: The threshold for guilt is lower than it would be for a criminal conviction, so “there’s some mitigation there in terms of sanction and standard,” Eramo said. “I think what you’re seeing is if our board feels they’re only 51 percent certain that somebody committed an offense, they’re not willing to expel that person permanently.”

Ultimately, Eramo said, “we are trying to balance the rights of the individual who’s being accused and the rights of the complainant, and sometimes that’s very difficult.”

The DOE has yet to decide if UVA is handling that very difficult equation right. A department spokesman confirmed that the compliance review, now more than two years old, is ongoing. There’s no timetable for completion.