By Emma Nelson at Star Tribune
Weeks into her freshman year at the University of Minnesota, Courtney Blake was sexually assaulted in her dorm room. She reported it to campus officials, rather than police.
Though the young man argued the sex was consensual, he was found to have violated the student conduct code and put on disciplinary probation, given mandatory counseling and assigned to write a paper, according to an investigation document. Blake was moved to another dorm.
Less than a year later, Blake was assaulted at an off-campus party by a different student. This time, she turned to the police as well as campus officials, but quickly learned the justice system’s limitations. She got a more tangible response from the U, which expelled her assailant.
As campus sexual assault gains increasing national attention, universities are facing more scrutiny of their handling of assault cases — and criticism that they can be unfair to both the victim and the accused.
The U’s handling of sexual assault cases arose last week when school officials reported that, in the past academic year, they’d decided not to investigate two allegations of sexual assault against football players because the alleged victims chose not to move forward.
Campuses are required by Title IX to investigate sexual assault reports to determine if the accused student violated school policy. At the U, sexual assault and harassment reports go to the Office of Equal Opportunity and Affirmative Action (EOAA), which investigates and then prepares a report of its findings.
That report goes to the Office for Student Conduct and Academic Integrity, which finalizes the ruling. If either the victim or the accused doesn’t agree with the outcome, they can ask for a hearing before a panel of faculty, staff and students. Both parties have the right to appeal the panel’s decision.
But before any of that happens, the victim can decide against moving forward with an investigation. That’s what happened with the allegations against the U football team, according to Title IX Coordinator Kim Hewitt. U officials said this week that both the EOAA and university police were contacted about one of those assaults. Police determined there wasn’t “sufficient information to pursue a criminal inquiry,” and the student did not want to go forward with an EOAA investigation.
Under Title IX, an investigation can only move beyond preliminary fact-finding without victim consent if the incident constitutes a pattern or includes predation, threats or violence, said Daniel Swinton, senior associate executive director at the Association of Title IX Administrators.
Problems for victims, accused
Critics of these internal investigations say colleges and universities are ill-equipped to handle cases that in a courtroom would constitute a felony. Because schools don’t have subpoena power, investigators and panels have to make decisions based on whatever evidence they can get.
“They lack a lot of critical powers that law enforcement has,” said Samantha Harris, director of policy research at the Foundation for Individual Rights in Education. “This is why you don’t see university judiciaries adjudicating murder cases.”
On campus, the fate of the accused is decided using the “preponderance of evidence” standard, as in civil cases. For the accused to be found guilty, it has to be more likely than not that they committed the assault. The “beyond a reasonable doubt” standard used in criminal cases is much higher.
Harris said the lower standard used on campuses is “very troubling.” The shift in recent years toward a more victim-centered process has chipped away at due process for the accused, she said.
Swinton disagrees. “You’re not taking due process away from someone by giving someone else equitable rights,” he said. “It’s not a taking; it’s a leveling.”
Some say the legal system isn’t much better. John Banzhaf, a law professor at George Washington University, said campus sexual assault cases are complicated by the fact that the two parties typically know each other and alcohol is often involved, reducing the evidence to little more than “he said, she said.”
“That creates a real problem for the criminal justice system, where you have to prove something beyond a reasonable doubt,” he said. “The cases are not brought, they’re not won, and the women get no protection.”
Justice system frustrations
After the U’s decision following her first assault, Blake tried to move on. But when she saw her assailant on campus, she panicked, at times collapsing to the ground. She started skipping class to avoid running into him.
“I thought what [the university] decided was for the better, and I could just get beyond it,” she said. “But that’s really not how that works.”
Then, in the spring, Blake got a call from university police, who said another student had been assaulted, allegedly by the same person. Both Blake and the other victim reported their assaults to the U, which investigated and expelled their assailant. The process was different than for Blake’s first assault, which happened before a policy change that moved investigations from the student conduct office to the EOAA.
Though the U found the second young man guilty, a Hennepin County prosecutor ultimately decided against taking either case. Blake said he told her that he would have prosecuted if he thought there was a chance, in either case, that a jury would convict.
Katie Eichele, director of the U’s Aurora Center, said only about a quarter of students who come to the center after an incident go on to report it elsewhere — usually to the EOAA.
“We’re very up-front with clients that it’s very difficult to prosecute a case, if that’s what they were hoping for,” she said.
She said she is “definitely a little bit bitter” about the case not going to prosecution — especially because more than one woman was assaulted — but she’s glad her assailant was expelled.
“I don’t know if it’s ever going to really be done,” she said. “But at least the bureaucratic side is over with.”