By Matthew Watkins at The Texas Tribune
On March 28, 2014, two Texas A&M University graduate students — one male, one female — went on a date. They ate dinner at McAlister’s Deli, drove to the male student’s College Station apartment and sat on his bed to watch a Disney movie.
What happened next is hotly disputed, and it has prompted a federal investigation into A&M.
The woman, an international student, told campus staff that her date groped her, forced her to fondle him and made her perform oral sex. The man, an American student in the same university department as the woman, said the entire encounter was consensual. Law enforcement reviewed the case and declined to press charges.
A&M responded in a way that has become routine on college campuses. It quickly investigated, held a disciplinary hearing and suspended the male student for seven months. The suspended student angrily objected that his rights had been violated.
This year, in an unusual move, federal regulators picked up his complaint. In March, they began digging into his case. Within months, they had widened their investigation into how all allegations of sexual violence are handled at A&M, a university that has mostly been praised for its handling of such cases.
The federal inquiry adds a new wrinkle to the nationwide discussion about rape on campus.
At the direction of the Obama administration, the U.S. Department of Education has upped pressure on universities to respond swiftly and strongly to allegations of sexual abuse, even when police aren’t involved. But the investigation underway at A&M shows that schools may also be vulnerable if they’re accused of going too far. For university officials with no law enforcement training, that can be a difficult line to walk.
“I wouldn’t want to be a college administrator right now,” said Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, a nonprofit group that decries what it sees as waning civil liberties for students on campus. “Universities are caught between a rock and a hard place.”
A conflicted case
Under open records laws, The Texas Tribune obtained hundreds of pages of emails, memos and other documents detailing A&M’s response to the 2014 sexual assault allegation, along with the federal inquiry that followed.
They show A&M officials found out about the alleged assault four days after it occurred. An educator who taught English to international students contacted the university to report that one of her students had been raped.
The university promptly opened an investigation, and reports indicate staffers interviewed four students, including the two involved, and collected detailed written statements.
The female student wrote that she met the male student in a graduate-level class. Soon, they began chatting over Facebook. She was impressed by his internships at major companies and hoped he would help her with her English.
On the night of their date, they drove to his efficiency apartment, where they talked and watched the animated movie Hercules. He didn’t have much furniture so they sat on the bed. He asked if she wanted wine.
“I said probably not (I usually do not refuse people directly by saying no) because my dad said people would tend to make mistakes or do bad things which they may not mean after drinking alcohol,” she wrote.
Soon, he was trying to kiss her. She wrote that she stopped him to ask if he had a girlfriend. After he said no, they kissed. But then, she wrote, he began grabbing her and twisting her body.
When she told him she didn’t want to have sex, the male student suggested oral sex, she wrote. She said she shook her head, but he seemed angry and began taking off her clothes. She told him to stop, she wrote, but he didn’t listen and “induced” her into performing oral sex.
“I was frozen and could not revolt but to follow his order,” she wrote.
She began crying and he eventually pulled away, she wrote. Then he turned on a basketball game and invited her to watch. She walked outside and began searching for her car.
“I cried and tried to calm down in my car for half an hour for fearing that I may have a car accident if I drove directly back home,” she wrote.
The male student told a different story in his statement. He wrote that he was interested in a relationship with his female classmate and never meant to hurt her. He said they talked about sex and she made it clear that she didn’t want to have intercourse. When he asked about oral sex, she was reluctant at first, but seemed interested, he said.
“If she had been crying, I could not see it,” he wrote. “There were no sobs. If I had any suspicion that there might have been I would not have asked her to continue. I am not a monster and do not take pleasure in others suffering, the thought disgusts me. I had no idea she was upset at that point, nervous possibly because she kept asking me if I was enjoying it, but I had no idea she might have been upset.”
Afterward, he wrote, they discussed what happened: “We talked and I asked her if she liked it. She said yes and thanks for teaching me something fun to do.”
The next day they exchanged messages on Facebook about schoolwork. The male student said he had no idea that something was wrong.
“I definitely misinterpreted the situation, but I thought she had legitimately given me consent for everything that we did,” he wrote. “It was not my intention to hurt her. I did not know.”
A mandate to take action
On its face, the A&M investigation seemed to align with the federal government’s expectations for how to handle such accusations — guidelines issued in 2011, when the Department of Education sent a letter to universities across the country urging them to be vigilant about sexual assault on campus.
At the time the letter was sent, advocates had been sounding the alarm about allegations of sexual violence on campus being essentially ignored, forcing victims to share classrooms and dorms with their attackers. One study cited in the letter said that one in five women were victims of sexual assault while in college. Many universities relied on local law enforcement to handle those cases, but criminal investigations often wrapped up without charges.
The advocates argued that a wait-for-criminal-charges approach violated Title IX, the civil rights statute that requires schools to offer equal opportunities to men and women. If women felt threatened at their universities, the advocates said, their education would suffer — and that’s a civil rights issue.
The Obama administration agreed, directing universities in its letter to designate Title IX coordinators, create formal grievance processes and conduct quick investigations into sexual assault allegations regardless of whether police were in the mix. The threshold for punishment should not be “beyond a reasonable doubt,” the administration said. It should be “more likely than not” that an assault occurred.
Less than two months after A&M’s investigation into the alleged assault began, the male student was called to a disciplinary hearing. Five A&M employees were appointed to determine his fate.
The student’s future at A&M was on trial, but in many ways the hearing didn’t resemble a judicial proceeding. The male student presented his statement and answered questions from the panel. No other witnesses were called to speak on his behalf. It’s unclear from university records whether the female student attended.
After answering the panel’s questions, the male student left the room while the panel deliberated. The panelists considered 12 charges against him, ranging from sexual abuse to unwanted contact to sexual harassment. They found him responsible for 10.
One day later, they made it official. In a letter, they told the male student that he was suspended for seven months. He could return to school after that, but he’d have to see a counselor and be on probation the following semester.
Soon after, he left campus. He took an out-of-town internship, worked on his thesis and applied to other schools. He returned to A&M for one more semester, then left Texas to pursue his doctorate elsewhere. In an email to an A&M administrator on Dec. 8, 2014, one day before his suspension ended, the student made clear he was angry about how his case was handled.
“Essentially been trying my best not to let some individual’s lies and the flawed system that works on preponderance of ‘evidence’ to ruin the career and life that I have been working so hard for for the past 8 years,” he wrote.
He also said he had contacted the Department of Education about the “mistreatment of my case.”
“It has taken a while, but it is finally being investigated,” he wrote.
Questions of due process
Among Texas universities, A&M has been applauded for its work at curbing sexual violence. NASA commended the university in 2014, saying A&M was “leading the way in efforts to inform its academic community about their rights under Title IX and to engage them in efforts to address sexual harassment and violence.” In a recent nationwide survey of students at major universities, A&M had below-average reports of sexual assault and above-average student confidence in how the university handles such cases.
Part of that is because A&M takes the cases so seriously. University policy meticulously details how staff are supposed to judge accused students in sexual violence cases. And it scripts much of what is said in disciplinary hearings, even mapping out where each participant should sit.
In those hearings, students are informed of the charges against them and an investigator presents the case. Panelists then ask the accused students questions and provide an opportunity for them to make their own case.
The alleged victim isn’t required to attend — meaning there’s often no opportunity for cross-examination. Some strategies a defense attorney might use in court are off the table.
For instance, in the 2014 case, the accuser’s description of what happened changed over time. When she first reported the incident to the university, she said she had been invited over to the male student’s house for a party, but arrived to find no one there, according to documents. She said the male student took off his clothes and groped her, but didn’t describe being forced to perform oral sex.
People who work with victims of sexual violence say that’s common; the victims are often traumatized, and may not feel comfortable telling the full story immediately. The university employee who took the female student’s initial report seemed aware of that, speculating that “more sexual activity occurred than the female student is sharing” because of a language gap and “cultural factors.” Still, a defense attorney might have used the differing accounts to question the reliability of the accuser’s statement.
Experts say the differences between university sexual assault hearings and criminal trials are intentional. Forcing a student to testify in the same room as his or her attacker can be traumatic. It can also have a chilling effect on victims, who may be hesitant to report rape if they have to confront their attackers face-to-face.
“Whenever you are talking about something as sensitive and intimate as sexual violence, it behooves schools to be sensitive to their students, to make sure that the process is fair and comfortable and they are not putting victims in a position of feeling blamed and shamed and having to confront directly,” said Neena Chaudhry, senior counsel at the National Women’s Law Center.
Given that risk, said John Foubert, a professor in the school of educational studies at Oklahoma State University, many college administrators feel it’s unnecessary to match the protections given to a criminal defendant.
“I think you need less due process,” he said, adding that, unlike a criminal trial, an accused student isn’t at risk of incarceration. “There is a different set of consequences.”
Plus, many universities have their own rules governing sexual encounters. A growing number of campuses have adopted policies requiring “affirmative consent,” meaning both parties must make absolutely clear every step of the way that they want to engage in sexual behavior. Under affirmative consent, the lack of a “no” isn’t enough to protect students from accusations of sexual violence; they can be punished if they continue without an explicit “yes.”
In 2015, after the federal government began investigating A&M, the university adopted a policy saying consent must be “clear, voluntary and positive throughout the sexual activity.”
Many students who have been punished at universities across the country say the systems at their schools are unfair. The consequences of getting kicked out of college can be life altering, they say, and more due process should be required.
A&M has heard that complaint before. In May, a track athlete accused of sexual assault sued the university, saying he was unfairly suspended for two years. That student, who was never criminally charged, argued in his lawsuit that he wasn’t allowed to present exculpatory evidence in his case and that his hearing was slanted in favor of his accuser.
Questions of civil rights
The Department of Education declined to comment for this article, but correspondence obtained by the Tribune suggests that A&M’s hardline approach to sexual violence on campus is what put it under the federal microscope. In April, investigators asked the university to respond to the allegation that its hearing panel was “biased against males,” and to a report that a panelist told the male student that he didn’t “respect women.”
A&M replied that the decision to suspend the male student wasn’t based on his gender but “on careful consideration of the testimony of the parties and relevant witnesses, and a review of witness evidence.”
Some experts and advocates interviewed by the Tribune expressed surprise at the department’s focus. It’s much more common for the federal government to open investigations into complaints that victims — not the accused — were mistreated, they say.
“The overwhelming majority of the investigations happening have been complaints that universities are not doing enough to address sexual assaults,” said Harris, with the Foundation for Individual Rights in Education.
That creates a new dilemma for universities: For years, they’ve known they could be punished for not being tough enough on allegations of sexual assault. Are they now subject to that same scrutiny for being too tough?
A&M President Michael K. Young said he welcomes a review from the Department of Education to help his university figure that out. But he questions the department’s methods.
Universities are in a difficult position since they aren’t built to handle criminal investigations, he said. They can’t collect forensic evidence, obtain search warrants or subpoena witnesses. They don’t have the resources to send investigators to law school.
Meanwhile, Young said, the Department of Education has been opening what feel like criminal investigations into universities. Often, the federal investigators running those inquiries have little experience in higher education, he said. So far, he added, there’s little evidence they’ve been helpful.
“I don’t think this has been the government’s finest hour,” he said.
Ultimately, Young said most universities strive to protect students and be fair to the accused. And they’re all trying to strike the right balance.
“Frankly, if the government at the end of this investigation has suggestions for us about how to do it better, we are all ears,” he said. “I wish I were more optimistic about whether that were going to happen.”