A lack of consequences for sexual assault

Introduction

“In my opinion … IU not only harbors rapists, but also completely disregards, ignores, and fails women.”

Indiana University freshman Margaux J. unleashed these fiery words in May 2006 after a campus judicial proceeding on her allegations of rape. It wasn’t that the two administrators running the proceeding panel didn’t believe her. In fact, they did. The panel found the student she accused was “responsible” for “sexual contact” with another person without consent. School administrators rank the disciplinary charge among the most serious at IU.

It was the penalty that left Margaux sputtering with rage. The panel recommended suspending her alleged assailant only for the following semester — a summer semester, during which he was unlikely to attend school anyway.

Hearing the decision, she rushed back to her dorm to pen a letter to IU deans, back to the scene where, she says, her alleged assailant raped her while she passed in and out of consciousness from intoxication. Livid over the penalty, Margaux fired off a three-page letter to IU deans, urging a review. In it, she painted the 60-day suspension as a sign of just how casually colleges and universities treat cases of alleged sexual assault. She pleaded for harsher punishment.

Margaux (whose last name is withheld at her request) would eventually get her wish — but only after her parents badgered the university to revise its penalty. And only after she left Bloomington, Indiana for good.

Disappointing Consequences

A year-long investigation by the Center for Public Integrity demonstrates that the outcome in Margaux’s case is far from unusual. The Center interviewed 50 experts familiar with the campus disciplinary process, as well as 33 female students who have reported being sexually assaulted by other students. The inquiry included a review of records in select cases; a survey of 152 crisis services programs and clinics on or near college campuses; and an examination of 10 years of complaints filed against institutions with the U.S. Education Department under Title IX and the Clery Act. The probe reveals that students deemed “responsible” for alleged sexual assaults on college campuses can face little or no consequence for their acts. Yet their victims’ lives are frequently turned upside down. For them, the trauma of assault can be compounded by a lack of institutional support, and even disciplinary action. Many times, victims drop out of school, while their alleged attackers graduate. Administrators believe the sanctions commonly issued in the college judicial system provide a thoughtful and effective way to hold culpable students accountable, but victims and advocates say the punishment rarely fits the crime.

Additional data suggests that, on many campuses, abusive students face little more than slaps on the wrist. The Center has examined what is apparently the only database on sexual assault proceedings at institutions of higher education nationwide. Maintained by the U.S. Justice Department’s Office on Violence Against Women, it includes information on about 130 colleges and universities receiving federal funds to combat sexual violence from 2003-2008, the most recent year available. Though limited in scope, the database offers a window into sanctioning by school administrations. It shows that colleges seldom expel men who are found “responsible” for sexual assault; indeed, these schools permanently kicked out only 10 to 25 percent of such students.

Just more than half the 33 students interviewed by the Center said their alleged assailants were found responsible for sexual assault in school-run proceedings. But only four of those student victims said the findings led to expulsion of their alleged attackers — two of them after repeat sexual offenses. The rest of those victims said discipline amounted to lesser sanctions, ranging from suspension for a year to social probation and academic penalties, leaving them feeling doubly assaulted. An examination of Title IX complaints filed against institutions with the Education Department revealed similar patterns: Eight students whose complaints stem from reported acts of “sexual assault,” “rape,” and “sexual misconduct” objected to the school’s punishment of their alleged perpetrators. All but one of these eight complaints involved lesser sanctions than expulsion and three ended in no punishment after responsible students appealed. Survey respondents reinforced the belief that schools fail to hold abusive students accountable. One respondent summed up the sentiment this way:

“Judicial hearings almost NEVER result in suspension, let alone expulsion. … Alleged perpetrators still remain on campus, in fraternities, and on sports teams.”

By contrast, some students, including Margaux, reported dropping out because of what they considered lenient discipline for their alleged perpetrators, whom they feared seeing on campus. Others said their alleged attackers violated school-imposed sanctions, often with little repercussion.

College administrators stress that the sanctioning in disciplinary matters reflects the mission of higher education. Proceedings aren’t meant to punish students, but rather to teach them. “We’d like to think that we can always educate and hold accountable the student,” says Pamela Freeman, associate dean of students at Indiana University. IU officials defended suspending Margaux’s alleged attacker as, in effect, a teachable moment, according to interviews with the Center and documents from a federal investigation into the school’s handling of the case.

But victim advocates question this notion. “There’s no evidence to suggest that a college campus can rehabilitate a sex offender,” says Brett Sokolow, of the National Center on Higher Education Risk Management, which consults schools on sexual assault policies. “So why are we even taking that chance?”

Margaux discusses her reaction to the penalty recommended for her alleged assailant; who was found responsible for sexual contact with another person without consent.

Margaux’s Case

Margaux, a reserved cellist whose black curls frame moon-shaped cheeks, had doubts about the process even as her informal proceeding took place on May 4, 2006. She reported being raped on April 6 by a fellow freshman who lived on her co-ed floor. Within days, she filed a report with IU police; then, a complaint with IU residence staff. Now, she sat in an office with a school advocate, testifying by speaker phone. Nearby, the alleged assailant — a taciturn, stocky athlete who had seen IU’s disciplinary process before — faced a two-member panel in a separate conference room, his father beside him.

Three years after the incident, Margaux reflects on the process experienced by victims of sexual assault.

Panel members — a residence coordinator and a judicial affairs administrator — presented the complaint to the accused student, who one of them later described in records from the federal inquiry as “dismissive, stating ‘whatever.’” To this day, the student, who spoke with the Center on condition of anonymity, maintains that “Margaux and I had consensual sex.”

Over two hours, in testimony before the panel, some details emerged clearly: Margaux and the alleged assailant agreed they encountered each other in the hall after a late night, drinking; she was crying, searching for her keys, when he offered help; he opened her door. But they gave conflicting accounts of what happened next. The accused claimed Margaux invited him into her room and readily “hooked up.” She countered he followed her inside and ignored her efforts to resist. “I began passing out,” she wrote in her official statement, “and when I would come to again he would still be on top of me.”

The proceeding devolved into what IU officials, in the federal documents, called “a shouting match.” The student’s father interrupted testimony, despite IU rules prohibiting “advisors” to speak, intimating the two had a one-night stand, “saying that kids were being kids.”

Ultimately, they agreed on a key detail: Margaux had been intoxicated. That stipulation became the deciding factor for the panel. “That means he knew she was incapable of consent,” says Andrew Chadwick, the top administrator on the panel who then worked at IU’s Office of Student Ethics and Anti-Harassment, “yet he went ahead and had sex with her.”

The student now disputes this fact, telling the Center, “She seemed fine to me, not drunk.” His father, who admits speaking out at the proceeding, says alcohol use should have cast doubt on Margaux’s credibility.

The proceeding outcome would be muddied by the intermingling of several disparate terms. Panel members found the student responsible for what Chadwick, according to the federal records, described as “sexual assault (power differential).” The so-called differential: she was clearly drunk and essentially powerless; he, while drinking, was not. Yet at the proceeding, as one of the panel members later described it, the finding was “sexual misconduct.” Officially, the charge was “sexual contact.” Chadwick, now on leave from IU and working as a student affairs consultant, attributes this discrepancy to a lack of evidence that physical violence had occurred. “At IU,” he adds, “we considered this charge just as severe as sexual assault.”

Margaux saw it differently, referring to legal statutes: “Apparently, at Indiana, it’s not rape when you have sex with someone who cannot give consent.”

A College Judicial Process, Not a Court

Administrators stress that the college judicial system is, as IU’s Freeman, who heads the Office of Student Ethics, says, “not the same thing as a court of law.” Unlike criminal courts, which enforce rape statutes, college proceedings enforce “conduct codes” that list prohibited acts like “sexual assault” or “sexual contact.” Their hearing boards operate under different procedural rules and evidence standards. Even their mission differs from the criminal justice system: Verdicts are educational, not punitive, opportunities. Alleged student victims may expect punishment from campus proceedings, says Jerry Price, vice chancellor for student affairs at Chapman University, in California, “but there is nothing in our mission about justice.”

Critics say the college system is ill-equipped to handle sexual assault cases. Schools may designate an “investigator” to assess a complaint’s merit. But they cannot subpoena records and witnesses to sort out conflicting testimony. Many train hearing boards on policies for adjudicating alleged assaults, but those sessions can only begin to address complexities. “Why would we expect university judicial boards to handle [difficult cases] right?” asks David Lisak, of the University of Massachusetts-Boston, who has trained administrators on combating sexual violence.

Many administrators agree they would rather the criminal justice system take on cases involving campus rape allegations — if only it would. Prosecutors often shy away from such cases because they are “he said, she said” disputes absent definitive evidence.

But if determining guilt is difficult, college administrators say, so is the sanctioning process. As much as 75 to 90 percent of total disciplinary actions doled out by schools that report statistics to the Justice Department’s Office on Violence Against Women amounted to minor sanctions, although it’s unclear from the data what the nature of the “sexual assault” offenses were. Among those modest sanctions: reprimands, counseling, suspensions, and community service. The most common sanctioning reflected what the data calls “other” restrictions — alcohol treatment, for example, or social probation. Interviews and records in these cases show that other minor penalties include orders that perpetrators write a letter of apology, or make a presentation to a campus advocacy group, or write a research paper on sexual violence. Administrators note that they sometimes issue multiple sanctions. For instance, they may require a no-contact order, a housing ban, and classes on sexual consent. By contrast, the database shows that colleges rarely expel culpable students in these cases — even though the Justice Department encourages its campus grant recipients to train judicial panels to hand down “appropriate sanctions, such as expulsion.”

“I find that absolutely outrageous,” says Colby Bruno, managing attorney at the Victim Rights Law Center, in Boston, referring to such sanctions. Bruno, who represents alleged victims in these proceedings, has routinely seen responsible students slapped with deferred suspensions, probations, even no penalties at all. “I don’t understand in what crazy universe rape or sexual assault doesn’t warrant expulsion,” she adds.

Administrators say such information can be misleading. Typically, an official considers several factors in sanctioning: the student’s disciplinary record, the institutional precedent, and the violation. Yet this last element can cover everything from fondling to forced penetration. Not every sexual offense deserves the harshest penalty, they argue; not every culpable student is a hardened criminal. “There’s not a one-size-fits-all in these cases,” contends Rick Olshak, associate dean of students at Illinois State University. He says schools are more likely to expel in cases involving penetration without consent, and clear intent. ”It’s the cases in the middle” — involving miscommunication and mutual intoxication — “that are more difficult and that will result in less than expulsion,” Olshak adds.

At times, though, even seemingly stringent sanctions can amount to little. In December 2007, Ariel Brown, then a junior at Bowdoin College, reported being raped by a baseball player in her dorm after an alcohol-soaked party. Two months later, the Bowdoin Sexual Assault and Misconduct Board deemed the student responsible for “the charge of Sexual Assault,” case records show. For Brown, it was little consolation: A school investigation had already dismissed her allegations of forced anal sex, making the finding solely for “an act of oral sex.” (Ariel Brown is a pseudonym to protect her identity.)

During her proceeding, Brown requested that the alleged assailant be suspended. Instead, he received “non-academic suspension” — in effect, social probation.Records show he was “removed from campus for all non-academic pursuits” — no housing, no activities. But Brown later learned Tim Foster, Bowdoin’s dean of students, had made an exception: The athlete could attend home baseball games. Brown’s mother — a Bowdoin alumnae — remembers complaining to Foster, who relayed that the student had been in his office, crying, because of the penalty. He was allowed to march in the May 2008 graduation; according to records, though, his diploma was held for a year. Foster declined to comment on Brown’s case, except to stress that “this matter did not involve any finding of rape.” The accused did not respond to several e-mails and phone calls seeking comment.

“To allow someone who’s been found responsible for sexual assault to continue to attend such an elite school is just awful,” seethes Brown, who transferred to Wellesley College.

Three years after the incident, Margaux reflects on the process experienced by victims of sexual assault.

Leniency in Exchange for Remorse

In Margaux’s case, explanations of the sanction by the panel’s top administrator, Chadwick, did nothing to temper her outrage. The official, she remembers, painted a contrite portrait of the alleged assailant, relaying that he had, as one official later put it to the federal investigator, “showed remorse and admitted that he had an alcohol problem.”

In an e-mail to the IU deans who oversee the judicial process, including Freeman, Chadwick cited this “break” as reason for limiting the suspension to the summer. “Through his self-discovery today,” the administrator wrote, “I believe he still has hope.” Chadwick and the residence coordinator, Molly Holmes, had intended to suspend the student until January 2007, but lessened the term, as Holmes stated in the federal records, “because of the perpetrator’s change in heart.”

Holmes, who now works at Northern Illinois University, declined to discuss Margaux’s case. Chadwick, though, confirms that the alleged attacker’s turnaround from initially combative to a “‘what have I done?’ moment” gave them pause. “In student affairs parlance, he’s had a critical moment in his life,” Chadwick says. He defends their sanction as “appropriate,” since they also issued a no-contact order, and mandated alcohol classes and counseling. Earlier, the student had been banned from the dorm. “Those are pretty serious sanctions for an 18- or 19-year-old person,” he adds.

The alleged perpetrator, for his part, recalls panel members pressuring him to confess to Margaux’s account of the incident, “pushing me into a corner.” Chadwick, he claims, wanted him to admit to having a drinking problem, though he says he doesn’t. He relented because, in his words, “I saw where they were going.” He suggests that he was unlikely to go to summer school anyway.

By then, the student was well known to IU disciplinary officials. The university had deemed him responsible for two other previous violations — drinking alcohol in his dorm, and punching another student in a fight also investigated by campus police for criminal battery charges.Meanwhile, another IU dorm resident sent an e-mail to Margaux informally accusing the same alleged perpetrator of sexual assault The woman claimed the accused “has come into my room on two occasions and forced himself upon me” and she offered, in the e-mail to Margaux, to “back you up.”

After her proceeding, Margaux sat in her dorm, penning that irate letter to IU deans. Documents show she had objected to Chadwick that the suspension was “not severe enough.” That her alleged attacker would be allowed to return in the fall left her feeling “as if my assault had been swept under the rug,” Margaux recalls. But in her view, it also seemed to ignore his record — and the alleged attempted assault. The second woman’s e-mail message had made its way to Chadwick, who did not factor her claims into sanctioning because, he says, “it hadn’t been a formal case.”

Hearing the decision, Margaux’s parents immediately pressed the university for expulsion. Her father, Michael, repeatedly contacted Richard McKaig, IU’s dean of students, and urged the dean to do “the right thing.” He forwarded his daughter’s letter to IU’s board of trustees, along with his own incensed letter. His wife, Eva — an IU alumna, along with nine of her relatives — called the governor’s office, as well as state and federal politicians. “That IU would give a slap on the wrist and a suspension is outrageous,” Eva says. “People go to jail for these crimes in the real world.”

Days later, IU’s McKaig informed Margaux that he had extended the suspension for another two semesters. Her alleged assailant could return to campus in May 2007 — two years before her scheduled graduation. In the federal records, McKaig, who has recently retired, stated that he did not believe “a one-summer suspension was sufficient in this instance.” IU told federal investigators that it did not receive Margaux’s letter until after McKaig had made his decision. McKaig did not respond to several calls and e-mails from the Center seeking comment.

By the time Margaux received the news, though, she had already decided to drop out.

Philosophy is ‘Not to Expel’

To IU deans — and their colleagues elsewhere — the outcome in Margaux’s case shows the college process works; it ended in what Freeman calls “a very strong sanction.” Expulsion at many schools, including IU, seems anathema. For instance, IU officials have expelled only one of 12 students found responsible for alleged sexual assaults in the past four years, as compared to seven suspensions and four probations or reprimands. “Our basic philosophy is not to expel,” confirms Freeman. The university will kick out a student believed to be a threat, she says, yet “that does not mean that every single person found responsible for sexual assault gets expelled. They’re not all predators.”

But critics say that attitude fails to recognize a disturbing reality about campus rape: Many incidents go beyond “miscommunication” among two drunk students — a common characterization among school officials — to predatory acts. Lisak, the U-Mass professor, has studied what he terms “undetected rapists” on college campuses. His research suggests that over half of student rapists are likely repeat offenders who rape an average of six times. Yet administrators, Lisak observes, “think of serial rapists as the guy who wears a ski mask and jumps out of the bushes.”

“Schools that overlook this paradigm are failing their female students,” charges Bruno, of the Victim Rights Law Center, referring to Lisak’s research. “Giving someone a deferred suspension is like giving someone carte blanche to do it again.”

Some victim advocates argue that anything less than expulsion — or a years-long suspension — violates the Title IX federal law banning sex discrimination in education. Under Title IX, schools must meet three requirements if they find a sexual assault has occurred: end a so-called “hostile environment”; prevent its future occurrence; and restore victims’ lives. “None of that says you have to educate the offender,” says Sokolow, of the Higher Education Risk Management Center. And when punishment fails to fulfill these obligations, adds Sokolow, who trains schools on the law, “That has the potential to violate Title IX.”

Administrators note that the law does not require expulsion in sexual assault cases or specify any punishment. For them, the practice of combining penalties makes for effective and legal sanctioning without jeopardizing the educational mission. But lawyers contend that colleges and universities are missing the broader legal point: By not punishing culpable students, schools are setting up student victims for years of anguish because they have to encounter their alleged assailants over and over.

“It’s really a question of entitlement to education,” says Diane Rosenfeld, a Harvard law professor who specializes in Title IX. Often, she notes, student victims become deprived of this legal guarantee because they choose to leave school rather than have to face their alleged attackers, even accidentally. “Expulsion should be a given under Title IX,” Rosenfeld adds. She, like many critics, wonders how leaving an alleged perpetrator on campus would not perpetuate a hostile environment.

Certainly, the lives of alleged victims are upended. In April 2006, Angela Tezak, a former student at Pennsylvania State University, participated in an informal proceeding after reporting being raped in an off-campus apartment by a fellow student. At the time, she struggled with depression, and lived in fear of seeing her alleged attacker, rarely leaving her apartment. “What he did really devastated me,” Tezak confides.

Her proceeding proved equally devastating. Tezak expected the alleged assailant to face serious consequences after Penn State administrators found him responsible for “nonconsensual oral sex” and “nonconsensual intercourse.” She remembers Joe Puzycki, assistant vice president for student affairs, calling to inform her that the accused had, as records show, “accepted responsibility.” But Tezak also learned that the school intended to sanction the student, a senior, simply by delaying his degree for a year, in what Penn State records describe as “temporary expulsion.” Days later, Tezak ingested “a big handful” of sleeping pills, landing in the hospital for five days. Penn State records show she never attended a final meeting with Puzycki because of her hospital stay. Tezak says administrators never gave her a chance to request or appeal the sanction. She ended up dropping out, and eventually transferred.

The alleged assailant, for his part, remembers several meetings with Puzycki, who, he says in an e-mail, “coerced me against my will to sign a document accepting sanctions even though I’m 100 percent innocent.” The administrator, he claims, explained that he could appeal Tezak’s complaint — which he calls “baseless and wholly untrue” — yet portrayed a formal hearing as futile, and virtually guaranteed to end in permanent expulsion. Rather than face such a prospect, the accused says, he chose to “negotiate lesser sanctions.” He offered to do counseling, for instance, in exchange for being able to walk in his May 2006 convocation.

“The way I saw it,” he relays, “I was between a rock and a hard place and my choice was, ‘Which is the two lesser evils?’” Puzycki, he claims, told him the temporary expulsion would appear as “a black mark” on his transcript for up to five years. It has not prevented him from landing several jobs since.

Puzycki declined to discuss Tezak’s case, referring a list of questions to Peggy Lorah, director of Penn State’s Center for Women Students. Lorah, who served as Tezak’s advocate, insists the university followed standard procedures, including that final meeting with alleged victims to approve punishment. Told that records show otherwise, Lorah replied: “The actions that were taken were in accord with what the victim wanted at that time.”

An Appeal to the Education Department

Margaux still bristles over what she calls a “false sense of justice.” She had been “an emotional wreck,” battling nightmares, barely sleeping. Friends of her alleged assailant harassed her in the dorm. “I was having all this trouble,” she recalls, “and here he got suspended.” Things would get worse when IU officials took disciplinary action against her. Weeks after her proceeding, Holmes, the panel’s residence coordinator, sent Margaux a letter charging her with alleged alcohol violations for hosting dorm guests who had been drinking. The accusation turned out to be unwarranted; a roommate had forged Margaux’s name on guest passes. By July, IU deans had dismissed the charge.

That summer, in June 2006, Margaux and her parents filed a complaint against IU with the Education Department, alleging violations under Title IX. It centered on the campus punishment. The family argued that IU had “failed to properly discipline” Margaux’s alleged attacker and, thus, had “fostered a hostile environment.” Later, they filed another complaint saying the university’s charge of alcohol violations amounted to “retaliation” against Margaux.

In its official response, according to case records, IU stressed that panel members handed down “sanction recommendations only,” and that Dean McKaig had the final say. “Should the Dean decide that the recommendation of his judicial officers is inappropriate for any reason, the Dean will make the final decision,” stated IU’s response to the department. “That is what happened in this case.” Officials dismissed the retaliation claim as an innocent, albeit insensitive, mistake. “I don’t think we did anything wrong,” replies Freeman today. Last April, the Education Department essentially agreed, concluding there was “insufficient evidence” IU violated Title IX. Asked about sanctioning in sexual assault proceedings, Russlynn Ali, the department’s assistant secretary for civil rights, promised the Education Department will issue new guidance for schools, including “remedies … that comport with the spirit and intent of Title IX.”

Margaux and her parents viewed the complaints as their last hope for accountability in her case. Indeed, her alleged assailant has not returned to IU — he calls the year-long suspension “too severe,” although he never filed an appeal. But the campus sanction would become the least of his worries. Not long after dropping out, Margaux learned that local prosecutors would not seek criminal charges for her rape report. Instead, they used her allegations as leverage to reach a plea bargain agreement with her alleged perpetrator in the pending felony battery case. He accepted a deal guaranteeing he would not face charges for sexual assault, served six months’ house arrest for pleading guilty to misdemeanor battery, and paid restitution to the IU student whose jaw he had broken. His probation expired in January 2009.

In the June 26, 2006 plea agreement, prosecutors promised to “file no charges against the defendant based on any information known to or received by the State,” including “allegations by Margaux J. … of improper sexual activity.” He now attends DePaul University, seemingly unimpeded by the “permanent disciplinary record” on his transcript that IU’s Freeman says came from the suspension in Margaux’s case.

Now, all Margaux has left is that punishment handed down in her IU proceeding — or, as she puts it, the “kangaroo trial with a kangaroo sanction.”

Staff writer Kristin Jones and reporting fellow Claritza Jiménez contributed to this article.