Process: Complexities arise with adjudicating sexual assault
There are many variables that come into play when adjudicating sexual assault cases, making it difficult to standardize. This makes every sexual assault case unique.
“These cases are very situational,” Capt. Kenny Mayberry, assistant director of police operations in the Department of Public Safety at Southeast Missouri State University, said. “It’s all based on what the victim wants.”
There are three main entities to which the report of sexual assault will funnel to once it has been made: the Department of Public Safety; the Office of Student Conduct; and the Violence Prevention Program through Counseling and Disability Services. All three places report to one another.
Reports make their way to these places by mandated reporters. Mandated reporters are required to report a sexual assault to a superior if they find out about it in their line of work. Every university faculty and staff member, as well as student workers are considered mandated reporters.
“We expect our faculty and staff will share information,” Dr. Deborah Below, vice president for enrollment management and student success and dean of students, said in an interview in November.
Sonia Rucker, the Title IX coordinator for Southeast, is responsible for training faculty and staff to know what to do if a student reports a sexual assault to them.
Rucker said when mandated reporters are put in a position where a student confides in them about a sexual assault, they are to cut off the student and tell him or her that they are required to report any information they receive. If the student does not want to continue the conversation, the mandated reporters still try to figure out the time and location where the alleged assault occurred.
In their reports, mandated reporters may leave out the name of the victim in order for him or her to remain anonymous if that’s the request of the student. If the mandated reporter shares the victim’s name, the Office of Student Conduct will open an internal investigation, Rucker said.
If a student decides to take a case to the Office of Student Conduct, the victim can then choose to participate in the trial or remain a reluctant witness, which means the person does not want to participate in the conduct trial and therefore will not testify against the accused.
The investigation by the Office of Student Conduct into a sexual assault claim begins with efforts to limit contact between the claimant and accused.
If the claimant has a similar schedule with the accused, the university can issue a no-contact order. With a no-contact order, the university can change the accused’s class schedule, eating and living situations and restrict them from using buildings at certain times. The university can even tell a student which doors they can use to enter and exit a building to ensure the claimant never has contact with the accused.
Some students who have utilized the process on campus do not think no-contact orders are effective.
“In my case, my rapist had a no-contact order,” Southeast freshman Kyleigh Williamson said. She filed a sexual assault report with Office of Student Conduct in 2016. “He still messaged me, and so did his wife.”
The messages were attempts to convince Williamson to discontinue with the investigation, she said.
“Two days after it happened, his wife spread fliers about me all around campus,” she said.
“How were they able to be on campus? How could they use their resources to do that to me? That’s not fair.”
Southeast freshman Kate Riney said she was sexually assaulted on campus in 2016. Although she did not go through the adjudication process herself, she also questions the effectiveness of no-contact orders.
“It seems really pretty. He’s not going to be able to contact you, you can’t be in the same place at the same time when you guys are on campus,” Riney said. “If I’m at the library and he decides to go to the library, I can’t do anything about it.”
If a no-contact order does not work, Dr. L. Randy Carter, assistant dean of students, said the next step would be to place the accused on interim suspension.
Once the no-contact order is in place and the complainant and the accused are separated by university standards, the adjudication process begins. Carter said he will begin to collect information to create a case that will generally be presented to a three-person panel to establish a verdict and punishment.
This panel includes two faculty or staff members and a student from the All University Judicial Board. All members are trained to adjudicate sexual assault cases by the university Title IX coordinator.
The Office of Student Conduct only has to find a person guilty on a “more-likely-than-not” standard, rather than a “beyond-a-reasonable-doubt,” Below said.
Once an investigation is completed and a verdict rendered, either party may appeal the decision to Below, who, as dean of students, is responsible for the appeal process. Below said appeals may come from either an accused person or a reporting student who is displeased with a sanction or lack thereof.
“In many sexual assault cases there are appeals because somebody is going to not like the outcome,” Below said. “I remain impartial throughout the process so they have an unbiased review of the case if there is an appeal.”
Notice against trespass
Based on the verdict of the student conduct case, the university can give a “notice against trespass,” which bans a person from university property. If they violate it, they can be arrested.
Below said there is no way to notify the campus community if a person is given a notice against trespass.
Only the person who receives the notice, the Department of Public Safety officers, the Office of Student Conduct and the person who filed the sexual assault complaint know. It is up to the complainant or university staff to see and report if the person comes onto campus, Below said.
Frank LoMonte, Director of the Student Press Law Center based in Washington, D.C., disagrees. He said if someone is found guilty of a violent or sex crime, they are no longer covered by the Family Educational Rights and Privacy Act, and the guilty student’s name can be released to the public.
“If a notice against trespass order is issued by or enforced by your campus police or security, then it is a law enforcement record, which means it is exempt from student confidentiality,” LoMonte said.
Other colleges, like the University of Northern Colorado, have been publishing lists for many years without any adverse FERPA consequences, LoMonte said.
The Department of Education has the following regulations on what the public is entitled to receive from a public university if a “final result” through the Office of Student Conduct of a violent or sex crime is reached:
“‘Final results’ means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.”
Escaping an investigation
Some cases of sexual assault never make it to the investigation stage.
That’s because although Title IX requires the university to adjudicate any sexual assault or sexual misconduct report, no investigation is required if the accused student or university employee leaves the university before the process is complete. In these situations, the university may decide to place a mark on the record indicating there is a pending investigation.
“There are some laws in place that do not allow us to share some specific information, especially if we weren’t allowed to conduct a full investigation and come to some type of adjudication or determination of exactly what occurred,” Rucker said. “We may potentially have our hands tied in what we can share.” Rucker said universities looking to hire could have candidates sign a Fair Credit Reporting Act release to allow potential employers to see if they left their previous university with any pending charges, or if they left under circumstances for which they could potentially be facing termination.
The only way to pursue a sexual assault complaint if the accused leaves the university would be for the complainant to file a criminal report.
In 2016, a student slipped through the student conduct system when the university allowed him to participate in commencement despite a pending student conduct case after he was accused of sexual assault days before he was scheduled to graduate.
“I reported the week of finals, though, so he wasn’t graduated yet and they told me, and Title IX says, that they have the right to not let him walk and to hold his degree until the hearing is done,” Southeast junior Mahala Landeros said.
“Even though he was my rapist, they rewarded him for participating [in the conduct process] by letting him walk,” Landeros said. “I was told the entire process would only be two to three weeks, even with graduation, and that they had the right to withhold his diploma so he would continue to participate.”
“In July, they told me that he had stopped responding to his calls, emails and letters. I asked if they gave him his diploma,” she said.
Landeros was later informed the accused had been mailed his diploma at the same time as other graduates.
Landeros’ case is now considered “pending” and is the only pending case recorded in the past five years.
“The ball is in his court,” she said. “It will be completed if he wants to come back. He never has to come back.”
Below said Landeros’ case was a learning experience for the student conduct office.
Over the winter, Below headed a Title IX committee that reviewed the university’s sexual assault procedures. She said in that meeting the committee discussed whether the university could withhold a student’s diploma in order for the accused to complete the adjudication process if a similar situation arises.
“We’ve never seen a student break the Code of Conduct within 72 hours of graduation,” Below said.
The committee has not yet released any recommendations regarding the sexual assault guidelines.