Justice Elusive in San Diego State Sexual Assault Case

November 6, 2014

By Angela Carone at KPBS

It was after midnight on a Friday in September 2007 when Jennifer ran out of the Sigma Pi fraternity house onto the street near the campus of San Diego State University.

A 20-year-old junior at SDSU, she was crying and frantic. She was barefoot and didn’t have a purse.

She didn’t care. She was trying to get away. She thought her boyfriend was chasing her, something he “always did.” They’d been together for nine months; he lived in the house. He’d choked her in the past.

The night before, Jennifer says she’d experienced his most violent act yet. But she went back to the house anyway, a decision she would have to answer for in the months and years to come.

As Jennifer ran toward campus, two male students saw her and stopped. They called 911.

“I just kind of collapsed on my knees after I heard them calling 911 because I knew now that the police had been called, there’s no going back,” she said.

“There’s no more hiding this from people, there’s no more hiding it from my friends. It’s really over.”

Over the course of two nights, Jennifer told the cops her boyfriend had raped, sodomized and beaten her.

“He threw me against the wall and then he picked me up again and threw me on the floor,” she said.

“I landed on my back and then I looked up at him and he was reaching for his huge TV and I knew he was going to throw it on me. So at that point I realized if I don’t get out of here, he’s going to kill me this time.”

The police found her boyfriend a few hours later. He was arrested, spent the night in jail and released on bail the next day.

That meant he would return to campus.

Silence and Isolation

Jennifer is not her real name. She agreed to tell her story publicly only if her identity was not disclosed. KPBS and inewsource agreed because she is one of the few victims of sexual assault to report the abuse and to battle in the university judicial system.

Her story illuminates a process that was a struggle at every turn: for information, for returned calls, for protection from fear and harassment.

Experts say most men and women who have experiences like Jennifer’s never tell anyone, much less the police or university officials. And there are a lot of them. Sexual assault, date rape, and dating and domestic violence incidents happen at roughly the same rates on college campuses across the country. That means one in four or five students will experience some version of sexual violence, said Jeffrey Bucholtz, president of the San Diego Domestic Violence Council.

Members of law enforcement, rape crisis advocates and school administrators agree sexual assault and dating violence are underreported.

“It’s incredible in 2014 how much silence and isolation there is around abuse,” said Bucholtz.

When victims do come forward, nothing about the process is easy.

When Jennifer decided to press her case through the criminal justice system and through SDSU’s judicial process, she thought she’d get immediate relief. But at every juncture along the way, over the course of an entire academic year, she said she had to fight to make both systems work for her.

Jennifer didn’t come from a rich family. She was a scholarship student. She searched for a pro-bono attorney to represent her. Her ex-boyfriend, she said, hired three attorneys and a private investigator.

She said it was a constant struggle to get a response from school officials. She wrote letters and emails. She collected evidence for her own case. She found witnesses.

Sometimes her efforts panned out. Often they didn’t.

She had to do all of this while afraid and traumatized. The results of Jennifer’s hearing might look like vindication. She said the process rarely felt like justice.

By law, universities have to address sexual assault complaintsthrough a disciplinary process.

Students who are found guilty won’t face criminal charges, but they could be expelled.

This is why the school process can be appealing to a sexual assault survivor. It means there’s the possibility of not having to attend classes with the attacker or see the person on campus.

These hearings — and how colleges handle them — are just one of the reasons more than 80 colleges are being investigated by the federal government. SDSU isn’t one of them, but Jennifer thinks it ought to be.

Since 2009, SDSU has held only four hearings related to sexual violence. None was for rape or sexual battery. One was for inappropriate comments, another for indecent exposure.

That means there’s been little opportunity to improve the judicial hearing process for a sexual assault case since Jennifer experienced it in 2008.

In fact, she said, it felt like the process was being invented as she went through it.

Taking Action At School

On the Monday after Jennifer was attacked, she woke up sore and frightened.

She spent much of Friday night getting a SART (sexual assault response team) exam, often called a rape kit. Her thighs were bruised and she had abrasions on her back. She worried it was broken.

Jennifer realized she had to do something, because she was afraid to leave her apartment and go to school.

She went to SDSU’s Center for Student Rights and Responsibilities. At this office, a student can file a complaint against another student and launch the disciplinary process. A victim of sexual violence can file a Title IX complaint. Title IX is a 1972 federal law banning sex discrimination in education.

Jennifer deliberately wore shorts to the office, hoping the school official would see the bruises that covered her legs. “I was scared no one would believe me,” she said. “So I thought if I go in and my bruises are apparent, they’ll take this seriously.”

She met with Lee Mintz, the Title IX deputy coordinator, who still holds that position. Mintz is also the center’s director. She had Jennifer write a detailed statement about what happened.

After she filed the complaint, Mintz explained it would launch an investigation. Mintz would get her ex-boyfriend’s side of the story, as well as interview any witnesses. There could be a hearing.

Jennifer was stunned. She thought filing the complaint alone, along with her bruises and the police involvement, would get her ex-boyfriend removed from campus.

She had no idea how long it would take and how hard she would have to fight to make it happen.

Fraternity Retaliates; She Withdraws From School

When Jennifer visited the school’s health clinic in early October, the doctor who examined her made a list on her chart describing her well being: can’t sleep, very anxious, paranoid about investigation, unstable, depressed, suicidal.

Jennifer was able to get a San Diego Superior Court judge to give her a five-year restraining order against her ex-boyfriend. Even with that, she said she dropped out of school that fall semester.

“I tried to be on campus, but the worst part was not only him being on campus, but his entire fraternity was going out of their way to harass me,” Jennifer said.

Everywhere she was on campus, Jennifer said her ex-boyfriend’s fraternity brothers yelled her name as they whizzed past in golf carts that many of them drove as part of their jobs. Two fraternity brothers blocked her cab when leaving a bar in Pacific Beach. While waiting in line to get burritos one night, a fraternity brother mocked her for letting her ex-boyfriend beat her and then he threatened to hit her himself, she said.

She reported these incidents to the university and to Sigma Pi’snational headquarters.

Mintz would not talk about the specifics of Jennifer’s assault but said retaliation happens in many sexual assault cases.

“There have been cases where somebody has reported an incident, and friends of the accused have made comments to them or put comments on Facebook,” said Mintz. “Sometimes they pressure them to drop the case.”

She said she doesn’t have the authority to do much with the retaliation. “It’s a conversation I have with the person that comes to report when we decide what course of action to take,” Mintz said.

She does encourage students to report retaliation so the school can investigate and take possible disciplinary action.

Jennifer said she couldn’t live with the retaliation. “The decision to ultimately withdraw was not an easy one but I had to make it because that’s how bad the harassment was,” she said.

SDSU provided Jennifer with counseling through the school’s Counseling and Psychological Services Department. She said the service she got there received was excellent.

Where’s the Criminal Justice System?

So why would a man accused of a violent felony not be charged and prosecuted?

“There’s a very strong burden of proof in criminal court. It’s beyond a reasonable doubt,” said Jessica Pride, a civil attorney. “That means the evidence has to all be there so that they can feel comfortable taking it to a jury.”

“Most sexual assaults occur with only two people in the room,” she said.

“It’s a he-said, she-said.”

That is what the lawyer handling Jennifer’s case at the San Diego County District Attorney’s Office told her when the charges were dropped against her ex-boyfriend. Jennifer said she met with Brian David Erickson, now a deputy district attorney in the office’s sex crimes and stalking unit. She said Erickson told her she was credible, but rape and sexual assault in the context of a dating or spousal relationship is hard to prove to a jury.

Bucholtz with the San Diego Domestic Violence Council said prosecutors and law enforcement can’t be blamed entirely for sexual assault and domestic violence cases not making it all the way to court.

He said juries, like the general population, do a lot of victim blaming. In cases like this one, where a young woman went back to the man she claims raped her, law enforcement and prosecutors may believe her, but that’s not enough. Juries have to believe it’s rape.

Until the general population starts to understand why people stay in abusive relationships and how consent works, the criminal justice system is not going to adequately address sexual violence, he said.

“Not as long as our jurors buy into the same stereotypes that 90 percent of the population buys into.”

The campus judicial process has a much lower bar to reach, said Gail Mendez, an attorney with the local rape crisis center.

“For a campus to find a perpetrator guilty, they only need to do it by a preponderance of evidence, which is more likely than not,” Mendez said.

Jennifer was anxious leading up to the hearing. She’d lost faith in SDSU’s investigation.
With criminal charges no longer a possibility, there was a lot riding on the school’s hearing.

How “fair” is a school hearing?

Jennifer began taking steps to prove her case. The hearing was scheduled for Jan. 25, 2008, almost four months after she filed her complaint.

She had taken pictures of her bruises to submit as evidence. She got evaluated by a doctor who said her injuries were more likely from a hand or a foot, not from falling, as her ex-boyfriend contended in the police report.

He declined to be interviewed for this story.

Jennifer asked some of herGamma Phi Beta sorority sisters who had seen abuse in the past to testify on her behalf. Most said no. She said the sorority president told her national headquarters advised them not to get involved because it might ruin the sorority’s relationship with Sigma Pi fraternity.

The student conduct hearing is presided over by a hearing officer, an SDSU staff or faculty member who gets 3-4 hours of training each year.

The Title IX deputy coordinator, in this case Mintz, acts like a prosecutor.

The accused student is also there. The accused can have an attorney, but that person cannot speak for the student. They can only consult through notes and side conversation. Jennifer said she was told she couldn’t have an attorney, only a victim’s advocate.

Current policy says both accused and victims can have attorneys as advisers.

Without an attorney, Jennifer said she felt vulnerable. She requested an armed police officer be in the room during the hearing to help her feel safe.

SDSU would not provide KPBS or inewsource with a transcript of the hearing, citing student privacy rights.

Jennifer said she was only allowed in the room to testify. “They kept asking about why I would go back to him if he raped me the previous night,” she said. “So as a victim I had to kind of explain to them that that’s how domestic violence works.”

In a courtroom, her attorney would likely object to this kind of repeat questioning.

Jennifer had recorded phone messages where her ex-boyfriend yelled at her and threatened to kill her.

She wanted them submitted as evidence, but at the moment they were introduced her ex-boyfriend’s attorney objected. The calls were not considered.

This, she said, was unfair.

“Having these people with no law degree make this decision as to what’s admissible as evidence is outrageous. It would have been admitted in a court for a multitude of reasons,” she said.

Jennifer had a witness who saw her ex-boyfriend shove her in the past. She said the witness waited to be called but was told only details from the exact nights in question were needed. Her testimony, which may have spoken to a pattern, was not considered relevant evidence.

Joe Cohn, a policy director at the Foundation for Individual Rights in Education, said these hearings aren’t fair to the accused or the victim. They’re meant to deal with things such as pulling a fire alarm in the dorm or cheating on a paper. They’re not designed to handle complex felonies.

“If you pulled 100 of these hearing cases, you would find they were botched 99 percent of the time,” Cohn said. “Expecting colleges to do this well is crazy.”

Commenting only generally, Mintz said, “If you compare it to the court process — we don’t like to do that — but if you think of a defendant and an attorney, the goal is to get their client off of these charges.”

She added: “Our goal regardless of what the outcome is: We want it to be educational.”

A 2012 executive order from the chancellor of the California State University system states: “Student conduct proceedings are not meant to be formal court-like trials. Although University related sanctions may be imposed, the process is intended to provide an opportunity for learning.”

Cohn said the idea that these hearings are educational is laughable. “I don’t know a parent in California or anywhere else, spending $120,000 a year, that would choose for their child to have an educational experience of defending themselves in a kangaroo court.”

Justice can be elusive

After the hearing ended, Jennifer waited for a decision.

She was back at school.

Her ex-boyfriend left for an SDSU study abroad program in Spain.

She was supposed to get the results of her hearing in 15 days. Weeks later, she still hadn’t heard.

“I would call like once a week asking for a decision. I would email asking what’s going on? Why hasn’t a decision been made?” Jennifer said.

She wrote a letter to James Kitchen, then-vice president of student affairs, asking for the results. She didn’t hear back for a month.

At the beginning of April, two months after the hearing, she got a phone call from Mintz.

Her ex-boyfriend was found guilty and would be expelled.

Jennifer didn’t get the results in writing until she requested them a few weeks ago.

The university also suspended the Sigma Pi fraternity for two years. According to a statement from the school’s office of Life and Leadership, the suspension was for “a pervasive pattern of policy violations.”

During the phone call, Jennifer said, Mintz told her she couldn’t tell anyone about the ruling in order to protect the privacy rights of her ex-boyfriend. She said Mintz told her: “if you tell anyone about this decision, the school can take action against you.”

Jennifer felt defeated.

“He’s telling all his friends a completely different story than what happened,” she said. “And I’m not allowed to say, ‘No, look. The school believes me. I went through this hearing and they believed me! They saw the evidence and they expelled him.’

“I couldn’t do that. There’s no justice in that.”

In SDSU’s 2010 Safety and Security Report, in a section titled “Student Discipline,” it states: “The victim is required to keep the results of the disciplinary action and appeal confidential.”

That policy violated federal guidelines. A 2011 article in the Daily Aztec pointed out the violation and that resulted in a letter to Kitchen from the director of public policy at the Clery Center for Security on Campus.

SDSU did not respond to a question from KPBS and inewsource as to whether the policy has changed.

What is justice?

Even though Jennifer’s ex-boyfriend was expelled from SDSU for sexual assault, he went on to finish his undergraduate schooling at a different college and get a law degree from George Washington University. He transferred there after going to Thomas Jefferson School of Law in San Diego for a year and a half.

This past July, he sat for the California Bar exam in the same room with Jennifer.

“Out of the huge room, he ended up in the row right in front of me,” Jennifer said. “So I took the three-day bar exam with the person who beat me up back in college — that I got expelled from college — I took the bar exam with him to become a lawyer.”

Law school grads have to do more than pass the bar exam. They have to pass what’s called a moral character determination test.  Applicants have to reveal whether they’ve ever been expelled from a school and why.

The California State Bar won’t release admission records due to applicant privacy rights.

Schools have a legal and, some say moral, obligation to address sexual assault cases and create a safe environment for students. These disciplinary hearings are part of how colleges answer that mandate.

“I think we have an extremely fair process here. I wouldn’t be here if I didn’t,” Mintz said. “I know that good things can come from it. We can give consequences or I can connect survivors to resources.”

Mintz said her biggest frustration is lack of reporting or whatever keeps people from reporting.

Cohn, a fierce critic of college judicial hearings for sexual assault cases, said schools across the country are starting to farm out the process to professionals. Harvard University, Tufts University and other colleges already hire freelance professionals to investigate sexual assault cases. The upcoming code of conduct hearing for star quarterback and Heisman-trophy winner Jameis Winston will be presided over by a retired state judge hired by Florida State University.

But those who’ve been working in the field for a long time say professionalizing the process doesn’t guarantee justice.

Attorney Mendez from the rape crisis center said whether it’s through the courts or a university, clear-cut justice isn’t always the end result.

“Justice is going to be individualized,” Mendez said. “Everyone’s sense of justice is going to be different. But I do think that being believed, being given respect throughout the process, is one of the most important takeaways from coming forward.”

Looking back, Jennifer said it would have made a difference to have a victim’s advocate on campus helping her navigate the system and explain her rights. “I think there should be a physical structure for victims to go to,” she said.

“There was none then, and there still is none today.”

SDSU has plans for a women’s center, staffed by an advocate. Jessica Rentto, SDSU’s Title IX coordinator, told KPBS in August. She hoped it would be up and running by October. In an email response this month, Rentto said the opening of the center has been delayed “in order to allow for maximum input from campus stakeholders.” She said the opening is at least a couple of months away.

Today, Jennifer works at a law firm. She earned a law degree from an Ivy League school.

Her college experiences, good and bad, have taught her that justice is complicated, slippery even. But she said that won’t stop her from spending her career trying to grasp it.

In a few weeks, the names of those who passed the California Bar exam will be made public. Jennifer will learn whether she and the man who was expelled from college for sexually assaulting her will be able to practice law in California.

Schools: San Diego State University