As activists graduate, campus sexual assault remains in the spotlight

When Pomona College President David Oxtoby took the stage at the Southern California liberal arts school’s commencement ceremony on May 17, about three quarters of the senior class turned their backs and placed their hands over their mouths. It was a silent yet powerful protest of Oxtoby and the Pomona administration’s handling of the sexual assault case of their classmate Yenli Wong.

Two days later, on the other side of the country, Emma Sulkowicz — with the help of a few friends — carried her mattress across the stage to receive her diploma from Columbia University.

Sulkowicz gained national attention back in September, when she began carrying a mattress around Columbia’s New York City campus to protest the way the school handled her claim that she was sexually assaulted by another student, Paul Nungesser. She vowed to keep it up until Nungesser left campus, and the protest became her senior thesis, titled “Carry That Weight.” Wong’s story is less well known, having become public only in the days before graduation, with her op-eds in the school newspaper, and on The Huffington Post.  She described a “lengthy and exhausting” reporting process that resulted in minor sanctions for the student who was found responsible for sexually assaulting her on multiple occasions. Wong said she’d been stonewalled by the school’s president when she tried to appeal the sanctions, and launched a Change.org petition calling on Pomona administration to take a firmer stance against sexual violence.  

For both of these young women, graduation day not only marked the culmination of their college careers but a somewhat open end to their public battles against the school administrators who they say failed to protect them under Title IX, the federal law prohibiting sex-based discrimination at any educational institution that receives federal funding.

For the rest of the country, these two ceremonies symbolized what might come to be known as the year of sexual assault on campus. Sulkowicz’s mattress project drew national attention to an already burgeoning movement of student sexual assault survivors speaking out against the way their college or university handled their cases.  What had previously been a widespread but overlooked problem was soon the hot topic — becoming the subject of "Daily Show" segments, a documentary by Academy Award-winning director Kirby Dick, an episode of Vice’s HBO series and a new book by the best-selling author of “Into the Wild,”John Krakauer. Sen. Kirsten Gillibrand (D-N.Y.) invited Emma Sulkowicz as her guest to the State of the Union Address.

Survivors weren’t the only ones making noise, however. Nungesser, who was cleared by the university of assaulting Sulkowicz, and of sexual misconduct accusations brought by two other students, also went public and filed a discrimination lawsuit against the university, its president, Lee Bollinger, and Jon Kessler, the visual arts professor who allowed Sulkowicz to conduct her mattress project as part of her senior thesis, drawing national attention to the allegations against him. And after Rolling Stone was forced to retract its jarring story about an alleged gang rape at a University of Virginia fraternity house in light of factual inconsistencies and reporting failures, the media started to turn its attention to the accused — spotlighting students who say they, too, were victims of school policies that undermined their right to due process and wrongly vilified them.

Ultimately, as the ensuing national conversation revealed, many schools’ sexual assault policies were failing students on both sides of the issue. But the spotlight has done more than just raise awareness. As of May 13, 111 colleges and universities were being investigated by the Department of Education for potentially violating Title IX with mishandled sexual-assault cases — making that list twice as long as it was this time last year. Over the past several months, legislators in states across the country and both houses of Congress have proposed bills aimed at combating campus sexual assault, in part by imposing stricter rules on how schools respond to reported cases.

Many have welcomed these moves as a long overdue step in the right direction. Others warn that they are a dangerous overreaction and an infringement on students’ rights.

Among those states taking the lead is Virginia, perhaps the most scrutinized state of the year.

Last August, when Virginia Governor Terry McAuliffe established his Task Force on Combating Campus Sexual Violence, the University of Virginia and the College of William & Mary, a public research university in Williamsburg, were already the subjects of Title IX investigations (four more Virginia institutions have since been added to that list). But while the Department of Education may have had its eye on the Commonwealth, it wasn’t until the following month that the public started paying attention to the disappearance of University of Virginia freshman Hannah Graham, who was last seen on the Charlottesville campus Sept. 13. She was found dead on Oct. 18 — the sole suspect in her abduction and murder a UVA employee believed to be linked to death of another UVA student. By the time Rolling Stone published its November magazine article about an alleged gang rape at a UVA frat house, all eyes were on Virginia.

Virginia Attorney General Mark Herring, who was put in charge of leading the Governor’s Task Force, along with the chancellor of the Virginia Community College System and the presidents of all 16 public colleges and universities, felt the pressure.

“There was a lot more national attention on us than we ever thought we would have,” Herring told Yahoo News. “So many parents, teachers — all Virginians — were looking to us to come up with our mission, and we did not stray.”

In May, more than a month after Rolling Stone officially retracted the gang rape story following an in-depth investigation of its reporting failures by the Columbia University Graduate School of Journalism, Herring and the task force presented Gov. McAuliffe with a report outlining 21 recommendations for responding to and preventing sexual assault on Virginia campuses.

Among the task force’s recommendations is the creation of Sexual Assault Response Teams, consisting of the school’s Title IX coordinator, student affairs representatives, campus or local law enforcement officials, and specially trained sexual assault nurse examiners, on all private and public campuses. The State Department of Criminal Justice Services will be asked to provide “trauma-informed response” training for the members of those teams.

“One of the things we heard about a lot was the importance of removing barriers to reporting,” Herring said. “Many survivors are sadly reluctant to come forward, for a lot of different reasons; they may be afraid that they’re not going to be believed, apprehensive about how their family or peers on campus will react, or they’ve just seen that it’s a very daunting, complex process.”

Other recommendations include ongoing educational programs targeted to different groups of students (for example, athletes, pre-med students, and students of different ethnic groups, as well as out-of-state and foreign exchange students) and at varying stages of their college career, as well as the use of online and smartphone applications for reporting assaults.

“Students are so used to doing so much online, from signing up for classes to talking to each other on social media,” he said. “It’s important that we meet students where they are, using communication tools that they use.”

While the report, Herring said, is a “tremendous step forward, it’s just a first step.” The next is implementation, which Herring said will be a “longer effort.” In the meantime, McAuliffe is hardly waiting patiently. On the day the task force released its report, the governor signed three new laws: One involves on-campus counseling for survivors, and another requires that campus safety officials join the Title IX-mandated threat assessment team that is formed once a sexual assault is reported. On the controversial question of when to involve outside law enforcement — since some victims’ advocates worry that recent pushes for mandatory reporting may discourage victims from coming forward — the new Virginia law splits the difference, requiring notification only if the threat assessment team finds a survivor at risk of retaliation or further violence.

The third bill states that any university employee must notify the Title IX coordinator if he or she becomes aware that a student may have been sexually assaulted.

“This is a very serious problem, not just in Virginia but all across the country,” said Herring. “I’m hopeful that other states will be able to benefit from what we’ve been able to do.”

Since February, New York Gov. Andrew Cuomo has been on a statewide “Enough Is Enough” tour, campaigning on behalf of legislation that would establish uniform policies on sexual assault prevention and response for every public and private college and university in New York. This week, Cuomo’s campaign got a little help from the pop star, New York native and outspoken sexual assault survivor Lady Gaga, who cowrote an op-ed with the governor in Billboard magazine in favor of the legislation.

The measures outlined in Cuomo’s bill, which he has said “will be the toughest law in the nation” are based on policies that the State University of New York system adopted last year for all 64 of its college, university and community college campuses. The most controversial of them echoes the so-called “Yes Means Yes” law passed in California last year, requiring “affirmative, unambiguous and conscientious” consent from both parties who engage in sexual activity on campus.

Another SUNY policy that Cuomo aims to implement statewide provides that expulsion and suspension are the only penalties available for people found responsible for sexual assault.

“A very large percentage of these crimes are committed by a small percentage of the population. The number of repeat offenders is very high,” said Joseph Storch, associate counsel in SUNY’s office of general counsel, who helped draft SUNY’s new uniform policies. He was referencing the widely cited research finding that 5 percent of male students are responsible for 90 to 95 percent of rapes or attempted rapes on college campuses. “If someone has committed a sexual assault, the chance that they’ve done it in the past and may commit again in the future is perhaps a bit bigger than other crimes that don’t have such a high repeat level.”

“That behavior doesn’t make it appropriate for you to be a part of our college community, so you need to leave or take some time off until we decide you can come back,” Storch told Yahoo News.

Another policy requires that every athlete and club leader complete a domestic violence, sexual assault and stalking education program before they’re allowed to compete in sporting events or have their club recognized by the school.

“If our student leaders complete the training, the chances are pretty good that they’ll be able to educate others and help out others and try to change the culture and the way people react to it,” Storch said.

Storch credited outside experts on domestic violence, sexual assault and dating violence prevention with influencing the policies’ new framework.

“One outside expert said, ‘Colleges organize these policies in ways that work best for the college. You should organize these policies in ways that work best for the victim.’ And that changed the way we thought about everything,” Storch said. “We reordered everything, so if you’re a victim or survivor of sexual or interpersonal violence, the first thing you want to know is: Who can I call? Where can I get help? Not: What are the technical aspects of the student code of conduct?”

“It’s not necessarily new information,” he added, “but the way we presented it was so much more friendly to survivors.”

Critics of legislation like Cuomo’s say such victim-centric policies forgo due process for the accused students.

“All of these new rules and proposed changes, particularly in terms of the ‘Yes Means Yes’ kind of stuff, work toward getting innocent guys in the process of trying to make sure you get all the guilty guys, and that’s why I don’t like it,” said Stuart Taylor, a journalist, legal analyst and Brookings Institution fellow who wrote the 2007 book, “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.”

Taylor told Yahoo News that if it were up to him, he would propose undoing pretty much all of the requirements resulting from what he calls “the revolution,” the period since 2011, when the Obama administration cracked down on how colleges respond to sexual assault claims.

Since 1972, all schools that receive federal funding have been required, under Title IX of the United States Education Amendments, to protect students from being excluded, discriminated against or denied the benefits of their education based on sex. Over the past 43 years, the short statute has been interpreted to cover a wide range of protections and obligations, ranging from college athletics to sexual harassment and violence.

In 2011, the Department of Education’s Office for Civil Rights articulated explicitly how sexual assault and harassment can interfere with a student’s studies or participation in extracurricular activities, and issued guidelines for how schools must respond to sexual violence on campus in order to remedy and prevent the creation of a hostile educational environment.

Part of that 2011 guideline, outlined in what’s known as the “Dear Colleague Letter,” refers to the standard of evidence schools should use in adjudicating campus sexual assault cases. Whereas most colleges and universities previously required “clear and convincing” evidence to find a student responsible for sexual misconduct, the Obama administration was now requiring that all schools adopt the lower “preponderance of evidence” standard for such cases. Essentially, this means that it must be more likely than not that a sexual assault took place.

“Was the system perfect before? Not quite,” said Taylor. “Colleges don’t want publicity about people getting raped on their campus, so that creates somewhat of an incentive for them to discourage women from reporting what they consider to be rapes.”

Although he says “there may be something healthy” about the government pressuring schools to make sure they prosecute legitimate rape cases, Taylor says the result of the 2011 guidelines, in particular the lower standard of evidence, is “a de facto presumption of guilt” for the accused.

“The hard truth about rape and sexual assault that I think the current activists and the Obama administration and Cuomo and the California people who consider themselves reformers don’t understand or refuse to face is that so many of these allegations are ‘He said, she said,’” said Taylor. “Without corroborating evidence, what happened between two people in a large majority of these cases is going to be unknowable.”

And by requiring only a preponderance of evidence, he said, the answer in a lot of cases is just a guess.

“If you go with clear and convincing evidence rules, like in the past, a large number of guilty guys will get off,” he said. “If you go with what we have now, a large number of innocent guys will be punished. Anyone who thinks they can fine-tune things to get all the guilty and none of the innocent is kidding themselves.”

In the corner of those who claim to be victims of this Title IX conundrum is attorney Kimberly Lau.

Over the past two and a half years, Lau’s Manhattan firm Nesenoff & Miltenberg has taken on about 40 sexual assault cases — many at the school level, but 10 of them lawsuits against colleges and universities on behalf of accused students. Columbia’s Paul Nungesser is one of their current clients.

Lau told Yahoo News it seems as if a majority of school administrators and Title IX coordinators are motivated by anxiety over the potential consequences of not siding with the complainant.

“I’m sure 5, 10 years ago, it was much different, and I think that was the problem,” she said. "That’s why the Obama administration came in and issued these guidelines and said, ‘Let’s not make it so completely difficult to place sanctions on these people who are wrongdoers on your campuses.’”

“But the problem,” she continued, “is that the pendulum has swung way too far to the other side.”

Though every case is different, Lau said her clients often are in the dark about what exactly they’ve been accused of. Administrators are generally opaque about the specifics when notifying a student of sexual misconduct charges, she said.

“These are like 19-, 20-year-old kids who’ve probably never been grilled about sex, they probably don’t even talk about it with their own parents yet, and quite frankly, these students are scared shitless,” she said. “Their entire education is on the line. They could possibly be marked as a sexual predator and be exiled from this school and also persona non grata [at] other schools, because who wants to take that kind of student? ....You know, they’re deathly afraid.”

Even after a decision is reached, Lau said only one of the schools she’s dealt with has provided a detailed explanation of how they found her client guilty.

“So that is incredibly difficult to appeal, because how do you appeal? You don’t even know what you’re appealing,” she said. “But for the student himself, he doesn’t even know what exactly he did that was deemed wrong.”

She said proposed legislation — like the Campus Accountability and Safety Act, or CASA, the bipartisan Senate bill being pushed by Sens. Kirsten Gillibrand and Claire McCaskill to impose harsher sanctions for sexual misconduct, and Yes Means Yes laws, drawing even stricter definitions of consent — stands to make things worse for the accused.

“We’re not robots,” she said. “Nobody has sex and does things exactly the way a legislative bill says you’re supposed to.”

Lau clarified that she and her colleagues are not advocating for male students in general, just for the accused. “I have represented female accused students, and I’ve settled cases for them,” she said. “There’s no doubt that there’s sexual predators out there and that rape does happen. I hope that doesn’t get lost here, because I know that rape happens on campus. I just believe accused students are not getting a fair shake.”

At the root of the problem, Lau said, is the fact that the person tasked with investigating the majority of these cases is typically a school employee. She said she’s seen a shift toward universities such as Georgetown and Brandeis hiring outside investigators, but whether that suffices remains to be seen.

“It’s a step in the right direction, but I don't think it’s ever going to be perfect, because [the investigators] are still funded and employed by the school,” she said.

Ultimately, Lau said she doesn’t think schools should be responsible for prosecuting this kind of case.

“I don’t think they could ever get it right. They’re too invested, too entangled with funding,” she said. “And quite frankly, these are administrators who are used to adjudicating plagiarism and cheating, and now they’re going to adjudicate something that rises to the level of criminal conduct? That’s a very big task.”

But Title IX expert Lara Kaufmann warns that “efforts to say, ‘This is a crime and therefore can only be handled by law enforcement’ are misguided, because they’re overlooking the civil rights issue at stake.”

Kaufmann, who is senior counsel and director of education policy for at-risk students at the National Women’s Law Center, said it’s “important to remember that this is a civil rights issue” and that sexual assault survivors are often met with suspicion and questions about their character when they come forward with a claim.

“Putting a higher burden on them in these cases would make it virtually impossible” to prove their case and would discourage others from coming forward, she said.

“There are lots of reasons why a survivor might not want to pursue criminal action at all, so forcing her to go that route would be the wrong thing to do,” she said, insisting that school investigations and criminal investigations are, and should be, independent of one another.

“The idea is for more survivors to feel comfortable coming forward, to increase transparency, to raise awareness and not push these things under the rug, which happened for way too long and way too many places,” she said. “A lot of students have been met with hostility and discouragement and shame instead of support and guidance, and that is what Title IX is about.”

About two weeks after graduation, Pomona College President David Oxtoby sent a letter — obtained by Yahoo News — to students and staff, highlighting Pomona’s past and current work to “prevent, address, and respond to sexual violence on campus, to support survivors of sexual violence, and to educate the entire campus community.”

The letter outlined in bullet points the Pomona process for responding to a reported sexual assault; noted the 2013 revision of the school’s sexual assault policies, the creation of a full-time Title IX coordinator position, and the implementation of bystander training programs; and highlighted future plans to review current policies and collaborate with Callisto, a new online sexual assault reporting system.

Though he did not mention Wong by name, Oxtoby wrote, “As a recent dispute over the handling of a case of sexual misconduct has reminded us, each case is distinctive, personal and painful. So, please do not mistake my pride in what our community has accomplished thus far as a signal that our work is completed.”
In an interview with Yahoo News, Pomona Dean of Students Miriam Feldblum declined to comment specifically on Yenli Wong’s case, “due to confidentiality and other concerns.”

“I work hard to navigate respecting and supporting student confidentiality and supporting survivors’ rights to tell their stories and the need to tell their stories,” Feldblum said. She did, however, answer questions about specific aspects of Pomona’s policies and procedures that contradicted much of Wong’s account of her experience.

Off campus and preparing for postgraduate life in Los Angeles, Wong said she was not impressed by Oxtoby’s letter, but rather that it reaffirmed her commitment to push for better policies at Pomona.

“They do the bare minimum and kind of treat survivors as liabilities, instead of treating them like human beings who have gone through something really terrible,” she said. “They keep talking about the policy, but something bigger has to change.

“Not just policies, but compassion.”