The following is a sneak peek from our February issue, the 2018 Complete Sourcebook, on its way to newsstands now.
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From revelations about longstanding sexual misconduct by film producer Harvey Weinstein to the most recent bombshell reports of molestation by Michigan State University and USA Gymnastics sports doctor Larry Nassar during two decades, a topic once resigned to backroom whispers has exploded in recent months onto front pages and national newscasts.
On Wednesday, MSU President Lou Anna Simon became the latest high-profile official to be brought down over mishandling of sexual abuse complaints; Nassar was sentenced Wednesday to a minimum of 40 years in prison after a seven-day hearing in which 150 women testified against him.
But long before the #MeToo movement caught fire on social media and brought previously concealed abuses to light, college campuses across the country have seen a steady increase in reports — and grappled with how to handle accusations of sexual misconduct on campus. The number of reported forcible sex offenses more than tripled nationally, from 2,200 in 2001 to 6,700 in 2014, according to a 2017 U.S. Department of Education report that compiled data required by the Clery Act, a federal statute mandating that colleges disclose campus crime statistics.
The trend applies to Richmond’s colleges and universities, too.
It takes the Office of Civil Rights 1.9 years to resolve a university Title IX compliance case, on average.
“I’ve seen a pretty dramatic shift in the eight years I’ve been here at VCU,” says Virginia Commonwealth University Police Chief John Venuti. “Eight years ago, it was really common to see a delayed report, where survivors did not go to the hospital and collect evidence … [now] we’re seeing more survivors often go to do the evidence collection first and then contact police secondarily.”
According to Venuti — who served as the law enforcement subcommittee chairman on Gov. Terry McAuliffe’s Task Force on Combating Campus Sexual Violence in 2014-15 – the anecdotal evidence he describes is a good thing.
For one, it means survivors are better educated on the importance of seeking a Physical Evidence Recovery Kit (PERK) exam, better known as a “rape kit,” because of the time-sensitive nature of the examination — which is often critical to prosecuting an attacker. Second, Venuti believes an uptick in reported offenses does not necessarily mean there are more offenses occurring, but that survivors are more comfortable coming forward.
At VCU, when police receive a sexual assault report, a notification also goes to the office responsible for complying with Title IX, the 1972 law prohibiting gender-based discrimination at institutions that receive federal funding. This is in compliance with state law adopted in response to the 2015 task force findings; the law now requires all “responsible employees” of higher education institutions to report information of sexual violence on campus to the Title IX coordinator as soon as practical.
After a push by the Obama administration to focus attention on the issue, the Department of Education in 2014 released the names of 55 schools — including James Madison University, the University of Virginia, the College of William and Mary and the University of Richmond — under federal review by the Office of Civil Rights for mishandling Title IX complaints, which can range from harassment, stalking and exploitation to partner violence, retaliation and assault.
Since then, many institutions have grappled with not only an increase in reports, but also the high-profile nature of being investigated for noncompliance with policies more akin to criminal law.
“Universities have typically not been institutions capable of adjudicating matters that are often seen as criminal code violations,” says John Aughenbaugh, an administrative law scholar and political science professor at VCU who has taught courses on Title IX, adding that universities’ disciplinary processes have historically focused on matters such as honor code violations.
WHAT IS TITLE IX?
Title IX is a federal law enacted in 1972 prohibiting gender-based discrimination at institutions in receipt of federal funding. The policy initially focused on allowing equal opportunities for participation in sports, but shifted to include sexual misconduct allegations based on advocates' argument that gender-based harassment and violence are forms of discrimination that inhibit equal access to education. A U.S. Supreme Court decision in 1986 held that sex discrimination included sexual harassment, and Congress in 1987 overturned a law that had limited the scope of Title IX to specific programs receiving federal funding.
TITLE IX VS. LAW ENFORCEMENT
Making a Title IX complaint does not bar an individual from reporting to law enforcement, and vice-versa. Complaints of sexual misconduct reported to colleges or universities are handled internally by the institution’s Title IX team, which will investigate whether the behavior violates the school’s sexual misconduct policy.
WHY DO SCHOOLS HANDLE COMPLAINTS?
A common criticism of Title IX is that schools are not equipped to properly investigate and adjudicate complaints which are often of a criminal nature. Title IX requires that schools address sex discrimination in education, and sexual violence is a form of discrimination under the law. If schools don’t comply, the federal Department of Education can withhold partial or all funding.
WHY IS THIS CONTROVERSIAL?
Critics of Title IX implementation say that in response to public scrutiny (see KC Johnson and Stuart Taylor Jr.’s book “The Campus Rape Frenzy”), schools have engineered policies robbing the accused of due process. Proponents argue that the law is critical to ensuring a safe campus environment and it offers sexual violence victims an alternative to going through the criminal justice system.
The list of schools in 2014 followed a “Dear Colleague” letter issued by the Department of Education in 2011 to the more than 600 colleges and universities receiving federal funding. The guidance redefined the scope of Title IX protections for students, institutional sexual misconduct policies and best practices for adjudicating Title IX complaints.
Aughenbaugh notes the problem with the 2011 guidance is that a new administration could rescind it — which is precisely what Education Secretary Betsy DeVos did last September.
Now, schools have the option of using the previous “preponderance of evidence” standard, the lowest standard of proof and typical to administrative law, or a “clear and convincing” standard, which DeVos argues will give the students accused of misconduct a better avenue for recourse in light of a process that, often without physical evidence or witnesses, can become a “he said, she said,” situation.
If, as Aughenbaugh suggests, universities are ill-equipped to manage these complaints, that could explain why the number of schools under federal investigation related to Title IX had quadrupled to 223 colleges when the Obama administration released its final report in January 2017. This review process has often garnered media attention and shed an unfavorable light upon schools spanning from Columbia and Brown universities to VCU and UR.
Two UR students who reported sexual violence to the Title IX office became frustrated with the school’s handling of their cases and told their stories publicly through the Huffington Post during the university’s sexual violence awareness week in September 2016. One of those students, Whitney Ralston, says that the result of going public was isolation.
“I spent the entirety of my junior year either locked in my apartment, attending court dates … or staying as far away from campus as possible,” Ralston says. “I was paralyzed with fear, loneliness and anxiety.”
She says that with the help of the new dean and board approval, she was allowed to finish her senior year remotely, which she is now doing in California, and she expects to receive her diploma for her bachelor’s degree in political science by mail this summer.
“The lack of recourse was a large part of me deciding to leave, and no one wanted to change my mind,” Ralston says. “It was easier to have me gone, and I honestly just didn’t have enough fight left in me to stay.”
Increasing awareness of stories like Ralston’s has led some to question whether the federal bureaucracy does enough — or perhaps too much — to address sexual violence, an issue typically resolved through the legal system.
“In my more jaundiced moments, I am unconvinced that universities were even implementing the new procedures for anything other than brand protection and risk management,” Aughenbaugh says.
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VCU and UR have been under federal investigation by the Office of Civil Rights for Title IX noncompliance a collective six times since 2011, and all but the first investigation at VCU remain classified as “active,” according to the Chronicle of Higher Education’s online Title IX tracking tool. Of the 458 investigations of colleges’ handling of sexual violence reports, only 119 cases have been closed by the OCR.
The answer to alleviating this administrative caseload most likely lies in reporting to law enforcement, so that criminal matters can be adjudicated in court. The problem is that according to a 2014 report published by the U.S. Department of Justice, women ages 18 to 24 are the most likely demographic to experience rape or sexual victimization, but only 20 percent of female students in that age range report sexual violence to police.
The VCU Police Department is the primary law enforcement agency for the campus of 32,000 students, and Venuti attributes a rise in the number of reported sexual assaults — from 41 during the 2015-2016 academic year to 54 in 2016-2017 — to increased education and awareness of how to report a case, and the de-stigmatization of doing so.
But the number of reports to police is still considerably smaller than the number reported to the Title IX office, which handled 134 and 163 sexual assault complaints during those years, respectively.
Assuming a survivor-centric approach is crucial to destigmatizing the reporting process, Venuti says, which is why his department was the first campus police department, of only three total departments across the country, to implement the You Have Options Program in 2016. Still, he says he can’t stress enough the importance of reporting incidents to police.
“One of the only time-sensitive matters when it comes to sexual assault is the evidence collection” as part of a medical exam, Venuti says, “because there’s only a limited time that it can be done, and if that opportunity is missed, you can’t hit rewind.”
Under YHOP, survivors can choose to participate in an information-only report, which is strictly documentation of the incident, and which may be more common among individuals who do not wish to move forward with prosecution.
The second option is a partial investigation, which focuses more on evidence collection such as a medical exam or preserving text messages, says VCU Police detective Chelsey McCarty. The last option is a complete investigation, which the VCU Police Department describes as “offender-focused.”
Ralston, too, encourages reporting to law enforcement. UR police drove her to court hearings, sat alongside her when she had to testify, responded to panicked texts when she was scared and even let her come by just to talk.
“I never felt safe on campus, but they made me feel like someone cared about me,” Ralston says.
Since then, UR and VCU have both implemented some significant changes to the Title IX reporting and adjudication process — although both schools note they still adhere to the optional “preponderance of evidence” threshold, opposed to DeVos’ proposed higher standard of “clear and convincing evidence.”
“A key development last year was the creation of the President’s Advisory Committee for Sexual Violence Prevention and Response,” says UR spokeswoman Cynthia Price, in an email response to questions. “The committee’s primary charge has been to review and recommend changes to the University’s Policy Prohibiting Sexual Misconduct and its Standards of Student Conduct.”
Price says that with guidance from the committee, UR has implemented changes including a new Center for Sexual Assault Prevention and Response, third-party investigators, more counseling options and creating staff positions such as a deputy Title IX coordinator for students.
At VCU, Director of Title IX Services Laura Rugless says the university has changed its policy so there is no longer an evidentiary hearing. Instead, her office uses the civil rights investigation model, where all evidence is shared with both parties so they can respond with clarifications or additional details. After that, the Title IX investigators will analyze the evidence and release a finding.
Rugless says the university also recently hired a Title IX program manager to address day-to-day operations surrounding investigations and complaints.
“We have really sort of refined our process — not that it's perfect by any means — but we're continually focused on process improvement,” Rugless says.
Part 2 of 3: This is the second in a series of articles exploring different aspects of law enforcement.
