By Monte Whaley
The Denver Post
WWR Article Summary (tl;dr) Some sexual assault victims, accusers and those who counsel them worry a decision by the Department of Education to scrap previous guidelines on investigating campus sexual assaults, will leave students too afraid and vulnerable to report attacks.
The Denver Post
Colorado college officials say they will continue to aggressively investigate accusations of sexual assault on campus and severely punish those found guilty of sexual violence, despite new interim federal guidelines that could make it tougher for sex assault victims to pursue justice from their attackers.
“Colorado State University is dedicated to addressing sexual misconduct and interpersonal violence on our campuses,” spokeswoman Dell Rae Ciaravola said. “This commitment is not driven by federal administrative positions or shifts in those positions over time. We are confident our approach strikes the appropriate balance, assures (federal) compliance, and protects the rights of all parties.”
Eric Butler, who leads the University of Denver’s office that investigates sexual harassment and violence, said his team has grown over the past two years based on its caseload and the increased emphasis by administrators to investigate accusations of sexual violence.
“I think our administration has come out with a clear message that we are to take these issues seriously,” Butler said.
But sexual assault victims, accusers and those who counsel them worry a decision by the Department of Education to scrap previous guidelines on investigating campus sexual assaults, will leave students too afraid and vulnerable to report attacks.
The guidelines, issued in 2011 and supported by President Barack Obama, were seen as more friendly to alleged victims because they instructed schools to use an easier-to-meet “preponderance of the evidence” standard when assessing and investigating a claim of sexual assault.
The topic of sexual assaults and harassment has gained greater attention this month amid the “#MeToo” movement, which has prompted women on campus, workplaces and elsewhere to step forward and discuss their experiences.
Kendall Fowler said the guidelines helped the investigation into her complaint about a classmate at the University of Denver. The man she says raped her during her freshman year in October 2015, was expelled.
“Looking back on my experience, I believe that more measures need to be put in place through the process, not anything rolled back,” Fowler said.
Education Secretary Betsy DeVos said in September the Obama-era guidelines were skewed against those accused of assault and had “weaponized” the Education Department to “work against schools and against students.”
Her interim guidelines, issued in September, allow colleges to choose between the “preponderance of the evidence” standard and a “clear and convincing evidence” standard, which is harder to meet.
The guidelines will serve while the Education Department gathers comments from interest groups and the public and writes new guidelines. There is no indication when the new guidelines will be issued.
University of Colorado spokesman Ken McConnellogue said the CU system, the largest in the state, will continue to use the “preponderance of the evidence” standard in its sexual assault cases, but said “the ruling did give us a little more flexibility in how we address these cases.”
“It gives us an opportunity to have a measured conversation about how we want to proceed,” he said. “Obviously, we need some careful standards in place and to see what’s going to work best for us.”
Colorado U.S. Sen. Michael Bennet, along with seven members of the Senate Health, Education, Labor, and Pensions Committee, told DeVos this month that the interim guidelines could result in fewer sexual assault survivors coming forward.
“The interim guidance is vague and often contradictory, and has caused confusion among college administrators, teachers, and students across the country,” wrote the senators in a letter to DeVos.
Local advocates for sexual assault victims agree, saying dumping the 2011 guidance on investigating campus sexual assault is disheartening and dangerous.
“We have concerns that instead of emboldening victims, there will be a lot more victim blaming and it will be harder for them to come forward,” said Medha Gudavalli, policy specialist with the Colorado Coalition Against Sexual Assault, a group that advocates for victims of sexual assault.
The University of Colorado has seen an uptick in reporting since the 2011 guidelines were issued, McConnellogue said. “But we attribute that to increased awareness campaigns, training and communication rather than a general increase in incidents.”
The U.S. Department of Education’s Office of Civil Rights in 2011 issued a “Dear Colleague” letter, a 19-page document addressing Title IX as it applies to campus sexual assault. It laid out the “preponderance of the evidence” standard as well as others that victim advocates said expedited the decision-making process in sex assault cases and helped protect victims from further contact with their attackers.
Fowler said the man who raped her on Halloween 2015 was a friend who invited her to his room to watch a movie. As they watched, he suddenly turned and held her down, placed his hand over her mouth and raped her, she said.
After months of denial and self-destructive behavior, Fowler told her mother about the incident. She encouraged Fowler to report the attack to the Center for Advocacy, Prevention and Empowerment, a group that came to campus largely because of the 2011 federal guidelines.
The group encouraged Fowler to contact a campus investigator, who collected statements from her and her attacker and then presented a report to a faculty committee that voted whether they thought the rape was more than likely to have occurred. Fowler also got a “no contact” order against the man that stopped him from approaching her on campus during the monthlong process.
The man was found guilty of breaking the student conduct code and was expelled. “I was beyond relieved that I would not have to ever see him again and that he could never hurt another woman on DU’s campus ever again,” Fowler said.
Campus safety advocates say DeVos’s interim guidelines have created confusion over what standards colleges and universities should follow and when a complaint should be filed. Also, the new guidance denies a complainant the right to appeal and introduced mediation as an acceptable form of resolving a complaint of sexual assault.
All of which will work to silence college rape victims, Gudavalli said. “We are now left with the question, ‘How do we protect the victims?’ I think we are reverting back to the old system of blaming the victim while decreasing a school’s responsibility for keeping students safe.”
Education officials said they were responding to “deeply troubling” statistics about the prevalence of sexual assaults when issuing the 2011 guidelines. Since, a 2014 White House report said nearly one in five women in college and one in 71 men experienced rape or attempted rape.
Currently, the Education Department’s Office of Civil Rights is investigating 360 sexual violence cases at 258 post-secondary institutions in the United States.
Critics said the 2011 guidelines, which were updated in 2014, caused the pendulum to swing too far in the favor of alleged victims, making alleged perpetrators — almost all men — targets of biased investigations. Once sanctioned by a college panel, a man’s academic career could be ruined, critics said, since information about his expulsion due a sexual assault complaint would be on his transcripts.
One sexual assault is one too many and is “horrible and lamentable,” DeVos said in September. “But the current failed system didn’t work for students. It didn’t work for anyone. It didn’t work because unelected and unaccountable political appointees pushed the guidance through without any period of comment from those who walk side by side with students every day. The time of ineffective and inefficient mandates is over.”
Sexual assault prevention groups and others, including members of Colorado’s Congressional delegation, said DeVos was relying on anecdotal evidence the system had become skewed against men.
About 2 percent to 8 percent of rape accusations are false, according to the Denver Sexual Assault Interagency Council’s Title IX Working Group.
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“Secretary DeVos painted a false picture, indicating that the numbers of survivors and falsely accused parties is comparable,” said the working group. “This exploits the misconception that false accusations are common.”
New York attorney Andrew Miltenberg, who specializes in defending accused students across the country, believes most colleges and universities will ratchet up sexual assault investigations and punishments because officials don’t want to be seen as lenient toward sex crimes on campus.
“I think they are planting a flag that they will stick with the Obama-era guidance,” Miltenberg said.
Miltenberg has handled at least eight sex crime cases over the past three years in Colorado. The most prominent involved Grant Neal, a Colorado State University-Pueblo athlete who was suspended in connection with a sexual encounter with a female team trainer that a witness believed was non-consensual.
Neal’s supporters said CSU-Pueblo punished him based solely on the witness statement and Neal filed a federal lawsuit against the college for its handling of his case. Neal and CSU-Pueblo settled in July. Neal, as part of the agreement, declined to comment.
Miltenberg said most investigators are trained to be “victim-centric.” “If a young man is poised and measured he’s lying,” he said. “If he is confused and scattered then you’ve caught him.”
Nearly all of his cases, he said, involve misunderstandings after one-night stands. “The caricature of a rapist pushing his way into a dorm room, I’m just not seeing that,” Miltenberg said.
Gudavalli of the Colorado Coalition Against Sexual Assault stresses that assaults deemed “not violent” are still assaults. “Extreme physical violence isn’t a prerequisite to assault and asserting that it is sets a dangerous precedence,” she said.
Gudavalli said the recent case of former University of Colorado Denver student John D. Kennedy is exactly the type of sexual assault that Miltenberg claims rarely happens on college campuses. Kennedy in June was found guilty of kidnapping an unconscious friend and taking her to his room where he raped her. Security footage showed Kennedy carrying the woman down a hallway to his room.
“The image of a man jumping out of an alleyway to rape a woman does not capture the reality of sexual violence on college campuses — sexual assault is perpetrated in many different ways,” Gudavalli said. She notes that 7 out of 10 rapes are committed by someone known to the victim.
During an Oct. 4 sentencing hearing for Kennedy, who was sentenced to nine years, the focus on campus rape was front and center. “This is a case where the whole community is watching this court,” assistant district attorney Ryan Brackley said.
Brackley was a prosecutor in Boulder in 2016 when Austin Wilkerson was convicted of assaulting a classmate and then sentenced to two years of work release in the county jail. The sentence outraged the victim and others in the community who believed it was far too lenient for such a serious crime.
On work release Wilkerson was allowed to leave the jail during the day to attend classes. He had been expelled from the University of Colorado Boulder but was allowed to enroll at CU Denver. There, he was a classmate of the woman who accused Kennedy of rape.
A letter written by the woman, who was not identified in court, was read at Kennedy’s sentencing hearing. She wrote about the moment she realized one of her classmates — Wilkerson — was a convicted sexual predator: “You realize this one night at 11 p.m. and lie awake distraught and terrified and crying until 4 a.m. after attempting to sedate yourself with the Xanax you are now prescribed.”
Testimony revealed Kennedy had been expelled from high school, possibly for a sexting incident, but his student records were sealed because he was a juvenile at the time. Was he punished or counseled, the woman wonders? With intervention, perhaps he never would have enrolled in college in Denver and become her attacker.
After he was expelled from CU Denver and before he was sentenced, Kennedy enrolled in the University of Hawaii and did not disclose his charges or his conviction to the school, according to court testimony.
“How can I feel safe?” the woman wrote. “How can any college student feel safe with this epidemic that is among us?”
