SLU Case Highlights the Gray Areas of Campus Sex Assault Investigations

October 12, 2015

By Koran Addo at St. Louis Post-Dispatch

In March 2014, after a night of partying, two St. Louis University students ended up in bed together at a house off-campus.

Two months later, the man got a letter from the university telling him he was under investigation for sexual assault.

The investigation carried on for months. During the inquiry, it was never disputed that the woman packed an overnight bag, willingly walked to the man’s house, got into his bed and had sex with him.

The pivotal question is whether the man knew the woman was too drunk to consent.

Initially, SLU suspended the student for a year just as he was preparing to graduate.

Two months later, the university reversed itself and cleared him of any blame — but not before holding his education in limbo.

Similar stories have played out across the country. Each has added to a wider conversation about whether universities should be handling rape investigations, whether they are particularly good at them and whether their procedures are slanted too far in favor of the accusers.

“You have to have a process that’s able to look at both sides of the coin,” said Ryann Carmody, a former prosecutor who represents the man accused in the case. “If this case was brought to any prosecutor’s office to be reviewed, it would be refused. There’s no way any prosecutor could convict him.”

Universities across the country have struggled to tackle the issue of sexual assault.

Critics say schools have long played down the problem, with sham investigations that have swept rape cases under the rug. Four years ago, the federal government warned colleges to develop strong protocols for rape investigations or face sanctions.

But some say the pendulum has swung too far in the other direction, punishing the accused withlittle or no evidence of guilt.

Schools in states such as Michigan, California and Pennsylvania have faced lawsuits from students who say they were falsely accused.

The suits challenge the fairness of investigations that are often handled by colleges separate from any investigation by the criminal justice system.

Such proceedings are closed and private, focusing on student discipline rather than criminal punishment. And critics say the result is a system that serves neither side.

“What we’ve seen so far is that they’ve done a terrible job that has been harmful to accusers and the accused,” said Samantha Harris, director of policy research at the Foundation for Individual Rights in Education.

GRAY AREA

Carmody provided documents to the Post-Dispatch that detail how the school came to find her client at fault before ultimately reversing that decision. She did so on the condition that her client not be identified.

The newspaper has also chosen to not name his accuser, who declined to comment. St. Louis University also will not discuss the case.

According to the documents, the sexual encounter happened hours after the two met for the first time at a party.

As the party was winding down, the two left and walked back to the woman’s apartment, where she packed an overnight bag. The two then walked about a mile to the man’s house, where they had their sexual encounter.

In the morning, they got dressed and then the man walked the woman halfway home. The two wouldn’t see each other again until a February 2015 disciplinary hearing, almost a year after their encounter.

After that hearing, SLU initially determined the man sexually assaulted the woman.

The university reached that conclusion despite a number of witnesses stating that the woman was not obviously incapacitated by alcohol.

One witness said the woman was clinging to the man at the party but that she could still carry herself. Another witness saw no signs that would indicate the woman needed the man’s help.

The man appealed, claiming the process was unfair, the penalty was too harsh and information provided didn’t match the disciplinary board’s conclusion.

Jill Carnaghi, an assistant vice president in SLU’s office of Student Development who had no prior role in the proceedings, reviewed witness statements — including a recording in which the accuser herself acknowledged that the man had no way of knowing she was too drunk to consent.

“The test of whether an individual should know about another’s incapacitation is whether a reasonable, sober person would know about the incapacitation,” Carnaghi wrote. “It is unclear to me if the Board considered all the information … in making their decision.”

Even as she reversed the decision, Carnaghi saw a gray area.

“I firmly believe (the woman) believes she was sexually assaulted that evening,” Carnaghi wrote to the man. “And, I also believe that you believe that the sex was consensual.”

Carmody, the man’s attorney, described the entire process as flawed. Some witnesses weren’t approached for four months, she said. And during the hearing her client was made to reword or toss out questions he wanted his accuser to answer.

“The lack of due process is my major concern,” she said.

A DIFFERENT STANDARD

In handling the case, St. Louis University followed guidelines set out by the federal government.

Those regulations stem from Title IX, the federal law prohibiting discrimination on the basis of sex in federally funded education programs and activities.

Increasingly, Title IX has been used to also address on-campus sexual assault and harassment. In 2011, the U.S. Department of Education’s Office for Civil Rights spelled out steps for schools to take, including hiring a full-time Title IX coordinator.

Catherine Lhamon, assistant secretary at the education department’s Office for Civil Rights, said much of the scrutiny over a university’s ability to investigate sexual assault is unfounded.

“No one questions if colleges are equipped to investigate assault and plagiarism or drug dealing,” Lhamon said.

Proper training is critical, she said, but schools are showing they are up to the challenge.

When a student reports any type of sexual assault at the school’s Title IX office, the protocol is for schools to offer counseling and other resources. Additionally, schools are to advise students of their options to address the matter through the criminal justice system, the university’s administrative process or both.

University punishment for sexual assault can range from an official warning to expulsion.

Generally, both parties are interviewed, witnesses are questioned and wrongdoing is determined either by a single investigator or in a disciplinary hearing conducted by administrators.

The extent of training that administrators and investigators undergo is unclear and varies by institution.

The college process also uses a lower standard to determine wrongdoing. In criminal court, where the reasonable doubt standard is used, a prosecutor has to prove there’s a great likelihood the accused committed a crime.

In a university proceeding, the federal government set the standard at “preponderance of evidence,” meaning that it only has to be more likely than not, or a 51 percent chance, that the accused committed a crime.

That was the standard used initially to determine that the SLU student committed sexual assault. But critics say that with so much riding on the hearings — including the academic future of the accused — a higher standard needs to be in place.

‘BALANCE AND FAIRNESS’

The case at SLU shares similarities with others across the country, such as one in 2013 at Occidental College in Los Angeles. In that case, two students, who by all accounts were both extremely drunk, had sex after flirting and text messaging.

As in the SLU case, the question boiled down to what exactly defines incapacitation and whether the man would have known the woman was unable to consent.

An investigation revealed the woman initiated the intimacy, asked for a condom in a text message and informed a friend she was on her way to have sex.

Police later concluded there wasn’t enough evidence to charge the man. But Occidental sided with the accuser and expelled him. The case is currently in court.

In another case, Swarthmore College in Pennsylvania spent much of 2014 fighting off a lawsuit filed by a student who claimed that he was a victim of a college too eager to appear tough on sexual assault.

In that case, an investigation first found the student had done nothing wrong. That finding was revisited after the school came under fire for not taking sexual assault seriously.

After reopening the case, the Swarthmore student was expelled and he sued. Swarthmore eventually cleared the man for a second time, and he dropped the suit.

Meanwhile, at Harvard, 28 law professors wrote an op-ed in the Boston Globe taking issue with new policies there on sex assault investigations, saying they tossed out “balance and fairness in the rush to appease certain federal administrative officials.”

CHANGE AND DISRUPTION

Anna Kratky is SLU’s Title IX coordinator. She has a law degree and formerly worked in the circuit attorney’s office.

She defended the university’s process for handling sexual assault as “an absolutely fair process,” carried out by well-trained staff.

Additionally, Kratky said SLU is constantly revising its policies and making revisions to the entire investigative process.

“Frankly, we’re very proud of it,” she said.

But Harris, of the Foundation for Individual Rights in Education, sees deep problems with the very structure of campus-based hearings under Title IX.

She said colleges lack tools available to the criminal justice system to investigate sexual assault. Those include the authority to collect and store forensic evidence and subpoena powers to compel all pertinent witnesses to testify.

Many colleges tell students they have to get affirmative consent — meaning conscious and voluntary permission — before any sexual encounter.

“If you’re innocent, how exactly can you demonstrate you obtained affirmative consent?” Harris asked. “These are situations when two people are usually alone. Absent any evidence of force, you’re going to have a problem proving your innocence.”

Marcia McCormick, is a professor of law and a professor of women’s and gender studies at SLU. She sees problems with sexual assault investigations both on and off campus.

“The criminal justice system is also terrible for sexual assault,” McCormick added, citing the country’s current rape kit processing backlog. “So having an alternate system may be a good thing.”

And yet, McCormick said colleges on the whole have not yet proven they can handle the cases.

Still, she said, critics should consider that in the past, when a student reported a sexual assault, victims were the ones who had to change their schedule or leave school.

Policies have now shifted so that the accused have their lives disrupted during the investigation, McCormick said.

“It’s a challenge any time you change the status quo. People feel like they’ve lost an important right,” she said.

The idea behind the policy shift is generally considered a safer approach, she said. Because unlike in the criminal justice system, where the penalties are more serious, universities can easily backtrack when they make the wrong decision.

“The accused has the opportunity to get reinstated,” she said.

But Carmody said that kind of system hurts students like her client — even when punishments are reversed.

After his case was resolved he moved from St. Louis to Kansas City to work with a relative. He’s just now starting to apply to graduate school, more than a year after he had first planned.

Schools: University of Missouri-St. Louis Swarthmore College Occidental College