Sexual Assault on Campus
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|Kristen Lombardi||December 7th 2009|
Center for Public Integrity
Three hours into deliberations by the University of Virginia’s Sexual Assault Board, UVA junior Kathryn Russell sat with her mother in a closet-like room in sprawling Peabody Hall. Down the corridor, two professors and two students were deciding her fate. Russell was replaying in her mind, endlessly, details of her allegations of rape when, she remembers, Shamim Sisson, the board chair, stepped into the room and delivered the order: You can’t talk about the verdict to anyone.
That stern admonition was a reminder of the silence Russell had been keeping since, she says, she struggled to break free from a fellow student’s grip in her dorm. That’s the account she gave local authorities, who declined to prosecute. And that’s what, in May 2004, she told the UVA Sexual Assault Board, whose decision she’d considered “my last resort.”
Russell stands among the tiny minority of students who have pursued rape complaints in the college judicial system — 33 at UVA, a school of 21,057 students, since 1998. She became well-versed in the confidential nature of the process as described in the school’s 2004 written procedures. Deans repeated the blanket stipulation to her “ad nauseam,” she says, throughout her three-month proceeding. The school later defended its mandatory confidentiality policy before the U.S. Department of Education even while softening the language.
Relating the gag order back in the room, Sisson, Russell says, provided a strong incentive to keep quiet: If you talk of the verdict, you’ll face disciplinary charges.
At the time, the exchange didn’t faze Russell, who says she did as told in an effort to get justice. But five years later, she’s come to see the school’s old confidentiality policy as emblematic of just how far colleges and universities will go to keep secret cases of alleged sexual assault. And a recent ruling by the Education Department against UVA for a policy “inconsistent with the letter and spirit” of the law has resulted in significant changes there.
But an array of controversial practices at UVA and college campuses elsewhere continues to shroud the college judicial system in controversy. Indeed, a nine-month investigation has found that a thick blanket of secrecy still envelops cases involving allegations of sexual assault on campus. One national study reports that roughly one in five women who attend college will become the victim of a rape or an attempted rape by the time she graduates. But while the vast majority of students who are sexually assaulted remain silent — just over 95 percent, according to a study funded by the research arm of the U.S. Justice Department — those who come forward can encounter mystifying disciplinary proceedings, secretive school administrations, and off-the-record negotiations. At times, policies lead to dropped complaints and, in cases like Russell’s, gag orders later found to be illegal. Many college administrators believe the existing processes provide a fair and effective way to deal with ultra-sensitive allegations, but alleged victims say these processes leave them feeling like victims a second time.
Interviews with some 48 experts familiar with the disciplinary process — student affairs administrators, conduct hearing officers, assault services directors, victim advocates — as well as 33 female students who have reported being raped by other students. The inquiry has included a review of records in select cases, and examinations of 10 years worth of complaints filed against institutions with the U.S. Education Department under Title IX and the Clery Act — two laws requiring schools to respond to assault claims and to offer key rights to alleged victims. In addition, 152 crisis-services programs and clinics on or near college campuses nationwide over the past year were surveyed.
Just over half the students interviewed have reported they unsuccessfully sought criminal charges and instead had to seek justice in closed, school-run administrative proceedings that led either to academic penalties or no punishment at all for their alleged assailants, leaving them feeling betrayed by a process they say has little transparency or accountability. Some of those students, including Russell, said they were ordered to keep quiet about the proceedings and threatened with punishment if they did not. Still other students said administrators discouraged them from pursuing rape complaints. Survey respondents indicated similar problems with the closed procedures on campuses.
Undoubtedly, another law, the Family Educational Rights and Privacy Act, complicates the issue. FERPA forbids schools from divulging students’ educational records, including disciplinary records. Administrators believe it binds them to silence on case details, but others aren’t so sure. Under FERPA, colleges can release names of students found “responsible” for committing violent acts. But “we don’t,” concedes Rick Olshak, associate dean of students at Illinois State University, “and I don’t know anyone who does, frankly.” Victim advocates contend that colleges use the law as a smokescreen to cover up campus crimes.
“Most institutions have a strong interest in keeping sexual assaults as quiet as possible,” says David Lisak, an associate professor at the University of Massachusetts- Boston, who has trained college administrators on combating sexual violence. Typically, Lisak notes, administrators view campus sexual assault as “a very negative piece of publicity,” tarnishing institutional reputations, and heightening fears among tuition-paying parents and students for whom colleges are aggressively competing.
College administrators bristle at the idea they’re shielding rapes. But they admit they’ve wrestled with confidentiality in campus assault proceedings because of FERPA and the Clery Act. Confusion over the laws has reinforced what critics see as a culture of silence that casts doubt on the credibility of the process. “People will think we’re running star chambers,” says Don Gehring, founder of the Association for Student Conduct Administration, referring to secret, arbitrary courts in old England. “And that’s what’s happening now.”
Kathryn Russell’s Allegations
Russell first approached the UVA administration in February 2004. UVA is required by Title IX regulations to respond “promptly and equitably” when a student alleges sexual assault — investigating the claim and taking action to eliminate harm. Most institutions, including UVA, list “sexual assault” or “sexual misconduct” as prohibited acts in their official standards of conduct — allegations of which automatically trigger internal disciplinary processes.
A petite, perky student who counted herself “a nerd,” Russell reported that she had been raped on February 13 by a fellow junior whom she’d gotten to know through a class and a club the year before. On a campus prone to what UVA assault-services director Claire Kaplan calls “a culture of silence around sexual assault,” administrators say they have strived to encourage reporting. “We try to make it clear that UVA … has zero tolerance for sexual offenders,” says Patricia Lampkin, vice president for student affairs, “and that students need to report all assaults.” In 2004, Russell became one of eight to recount an alleged rape in a UVA dorm.
Eight days after filing an incident report; after telling UVA police she had “unwanted sexual contact”; after informing UVA doctors of “worsening pain” from allegedly forced sex , Russell found herself repeating the story to Penny Rue, then dean of students. The dean gave Russell a 12-page document, entitled “UNIVERSITY OF VIRGINIA PROCEDURES FOR SEXUAL ASSAULT CASES,” which outlined options for adjudicating complaints. It included this language:
Confidentiality of the hearings process is of great importance to all involved. Identity of the reporting or accused student and any formal discipline resulting from the hearing may not be publicly disclosed….
Rue didn’t dwell on the policy at first. Instead, Russell remembers the dean doing what many victim advocates say is common: discouraging her from pursuing a hearing. Rue, Russell charges, recommended mediation — an equally shrouded process in which, according to the UVA procedures, “all verbal statements … must remain confidential,” including “offers of apologies and concessions.”
“I didn’t want to talk to him,” recalls Russell, of her alleged assailant, so mediation seemed out of the question. She would later initiate her complaint in a March 19 e-mail to Rue.
In ensuing days, the dean would informally “confront” Russell’s alleged assailant, who claimed he’d had consensual sex with Russell. In his March 30, 2004, statement to UVA administrators, the accused student portrayed Russell as a willing flirt at a bar who turned sexual aggressor in her dorm, and who repeatedly “grabbed my genitals and wanted me not to leave.” The individual in question did not respond to multiple calls, e-mails, and letters seeking comment.
Rue now works as vice chancellor of student affairs at the University of California, San Diego. In an August 2005 letter addressed to UVA’s associate general counsel, Rue confirmed meeting Russell and handing her the school’s written procedures. The dean said she’d been careful to lay out all the options. “I let her know that it was her decision whether to pursue charges,” Rue wrote in the letter, “and that the University would support her either way.” Rue declined to discuss Russell’s case, as did other former and current UVA officials familiar with it, despite a waiver from Russell granting permission for them to do so.
Informal Proceedings Common
Days before filing her complaint, Russell learned that the local district attorney wouldn’t press criminal charges — a typical outcome. Experts say the reasons are simple: Most cases involving campus rape allegations come down to he-said-she-said accounts of sexual acts that clearly occurred; they lack independent corroboration like physical evidence or eyewitness testimony. At times, alcohol and drugs play such a central role, students can’t remember details. Given all this, says Gary Pavela, who ran judicial programs at the University of Maryland, College Park, “A prosecutor says, ‘I’m not going to take this to a jury.’” Often, the only venues in which to resolve these cases are on campus.
Internal disciplinary panels, like the UVA Sexual Assault Board, exist in various forms on most campuses. But they’re not the only way schools handle rape allegations. For decades, informal proceedings run by an administrator have represented the most common method to adjudicate disciplinary matters. Typically, an administrator meets with both students, separately, in an attempt to resolve a complaint. Occasionally, they “mediate” the incident. Officials find such adjudication appealing in uncontested situations. If a dean elicits a confession, says Olshak, of Illinois State, who headed the student conduct association in 2001, “We’ll be able to resolve the complaint quickly, easily, and without the confrontation of a judicial hearing.” Resolution, as in formal hearings, can mean expulsion, suspension, probation, or another academic penalty, like an assigned research paper. By all accounts, informal processes take place almost as frequently as formal ones ; at UVA, for example, the administration has held 16 hearings since 1998, as compared to 10 informal meetings.
And these proceedings can turn out positively for student victims. In January 2005, Carrie Ressler, then a junior at Concordia University, near Chicago, reported being raped by a football player after attending a party in his dorm. On January 19, within hours of the alleged assault, the police arrested the student athlete; by October, he’d pled guilty to battery for “knowingly [making] physical contact of an insulting nature,” court records show.
At Concordia, Ressler’s report landed on the desk of Dean of Students Jeffrey Hynes. The morning of the arrest, the dean summoned her to his office. “He told me he’d be telling the perpetrator he needed to leave by choice,” she remembers Hynes saying. “If not, he’d be expelled.” Within days, the athlete had left Concordia. Hynes declined to comment on Ressler’s case.
“The dean acted in my interests,” Ressler says. She recognizes, though, that the informal adjudication served the university’s interests, too. “I got the sense from the dean that the school wanted to keep this case hush-hush.”
Many victim advocates share Ressler’s opinion on this. Often, these victim advocates charge, informal proceedings serve to sweep campus assaults under the rug. Both the Justice Department and the Education Department explicitly say in guidance documents that schools should not encourage mediation in sexual assault cases. Yet Katherine Lawson, an attorney at the Victim Rights Law Center, in Boston, says she’s heard one local administrator boast they haven’t held a full sexual assault hearing in years. “This meant to us that they had managed to pressure students to drop a complaint, mediate, or take some lesser administrative route,” she explains, which kept cases quiet. At times, these proceedings even leave the victim advocates in the dark. Says one crisis-services coordinator at a Massachusetts university, “I don’t have any idea what goes on in those little [deans’] meetings.”
College Hearings: Little Transparency
More formal proceedings are sometimes no less shrouded. College disciplinary hearings, unlike courts, lack the trappings of transparency — campus spectators. Advocates can’t attend unless serving as “advisers” to students. Only integral participants like board members or administrators have any clue when a hearing occurs. “They’re secret because they’re closed,” says S. Daniel Carter, of Security on Campus Inc., a watchdog group.
Administrators see it differently, arguing that there are important distinctions between “secrecy” and “privacy.” They can’t open up internal proceedings — formal or informal — because that would amount to granting access to private educational records, which FERPA prohibits, they say. But that doesn’t mean they’re operating in secret. “Not providing private information to the rest of the world is respecting confidentiality and respecting FERPA as a law,” says Mary Beth Mackin, assistant dean of student life at the University of Wisconsin-Whitewater. And while proceedings remain hidden to outsiders, administrators maintain they’re conducted so students feel they’re as open as possible.
Lisa Simpson would probably disagree. Her allegations of rape at the University of Colorado at Boulder blew open a scandal of sexual assault allegations against football players and recruits in 2004; three years later, her Title IX lawsuit brought against CU ended in a $2.85 million settlement in her favor. Yet she found CU’s judicial process a mystery. In December 2001, Simpson, then a CU sophomore, alleged she was raped by five football players and recruits during a beer-soaked party. They claimed she was a willing participant. Within days, Simpson’s rape report made its way to CU’s judicial affairs director, Matthew Lopez-Phillips. During a meeting in his office, she recalls him relaying how a panel of students, faculty, and staff would adjudicate. At the time, CU’s official conduct code stated that alleged victims would generally be expected to participate in the process by “providing testimony at the formal hearing of the accused,” among other things.
But Simpson never appeared before a panel. No panelist interviewed her about the report, or the victim impact statement she filed. Even after her five-year legal battle against CU over its response to her case — a battle that sparked a broader investigation, as well as systematic reform — she has no idea what transpired before the panel, or if it actually even existed. CU documents show one accused student underwent a formal hearing as a result of Simpson’s report; three others had informal, administrative proceedings. But some CU documents on the panel remain sealed by protective order, and only one includes a list of 17 possible panelists. Court records have revealed the identity of only one panelist. “For all I know,” Simpson says, “it could have been a panel of athletic coaches.”
Lopez-Phillips, who now works at Sonoma State University, did not respond to several calls and e-mails. Meanwhile, the sole panelist named in court records, Carlos Garcia, who directs CU’s student center, declined to comment, citing “confidential” board sessions.
Adjudicating the Russell Case
Russell’s proceedings before the UVA Sexual Assault Board commenced on May 10, 2004. According to the hearing transcript, Sisson, the board chair and senior associate dean, said: “All parties are reminded these proceedings are confidential …”
It had become a familiar refrain for Russell. Before Russell filed her complaint, UVA deans spelled out the policy. In a March 1 e-mail, Rue told Russell:
It is perfectly okay to discuss the events that occurred with anyone you trust, but the fact that they are subject to a judicial proceeding through the university must be kept entirely confidential.
Reminders followed — in e-mails and letters stamped “CONFIDENTIAL.”
By the time the hearing occurred, Russell had heard the stipulation so often she refused to share documents with her mother. Over nine hours, as family and friends waited outside, the four-member board sat in a secured conference room, listening to testimony. Russell and the alleged assailant agreed on initial details — they ran into each other at a bar; he ended up at her dorm; she offered him an air mattress to sleep. But they painted different pictures of what transpired next. The man, Russell said, grabbed her from behind, ignored her pleas to stop, and “used [me] for his sexual need.” Russell, the man countered, “tacitly agreed to have sex,” demanding a condom, and never saying no. “Not all my actions would in a day-to-day situation be considered kosher,” he wrote in his April 23, 2004 defense. “But none of my actions broached or even swept near the arena of rape.”
Sisson repeated the confidentiality admonition 11 times during the hearing, according to the transcript. By its end, she relayed a directive that would wipe away much of the hearing record. “Leave all of your materials,” she told participants, “so these materials are shredded.”
Russell’s mother, Susan, who had created a website criticizing UVA’s response to campus rape allegations, claims Sisson admonished her, too, threatening to bring Kathryn up on disciplinary charges if the hearing verdict was posted on the site.
In a brief phone call, Sisson, now retired, described the proceedings as “entirely confidential at the time,” and “a complicated set of circumstances.” She said, “I approached my work and every one of these cases with the greatest professional integrity.” Asked if she warned Russell not to talk or threatened disciplinary charges, she replied, “I cannot comment on specifics.”
Going after Gag Orders
UVA administrators insist the confidentiality policy laid out in the school’s 2004 written procedures was never meant to muzzle students, although they recognize students could “over interpret” its language. Nor was it official practice to warn them to keep quiet — or else. “There was no quid pro quo here that I know,” says Nicole Eramo, current chair of the UVA Sexual Assault Board. “That was just not part of our policy.” The actual written policy suggests otherwise — both old and new procedures state punishable actions “may include … violations of the rules of confidentiality.” But administrators stress students have never gotten in trouble for telling their stories.
Instead, they blame their former policy on a longstanding confusion within higher education over the scope of FERPA in sexual assault proceedings. For decades, college administrators had operated under the assumption that FERPA protects all disciplinary proceedings — until the Clery Act passed in 1992. The Clery Act makes it mandatory for schools to notify alleged victims of hearing results. Understanding how FERPA intersects with Clery — two laws seemingly at odds—has been, in Eramo’s words, “difficult for administrators.”
That confusion, according to Carter, who heads public policy at Security on Campus Inc. has caused a proliferation of disturbing practices. Some schools have threatened alleged victims with expulsion for disclosing verdicts. Others have barred them from viewing their proceeding records. Still others have required confidentiality pacts — all citing FERPA. The Education Department found that institutions had even kept alleged victims in the dark. In September 2005, the department fined Miami University of Ohio $27,500 for breaking a promise to regulators to provide accurate written information about hearing results to student victims, as it had done to accused students. Earlier that year, in June, the department determined that California State University, East Bay, had violated Title IX by not notifying alleged victims of the outcomes of sexual harassment investigations — requiring the school fix its policy under a resolution agreement.
By October 2002, Carter had petitioned the Department of Education about these sorts of practices. Alleged victims should be allowed to disclose not just the hearing results, he said, but also names of accused students and any sanctions. In March 2003, he filed a separate complaint against Georgetown University, which had been using gag orders in its proceedings. Like UVA, the Georgetown administration restricted students from divulging outcomes. Unlike UVA, it refused to release those outcomes unless students signed confidentiality agreements. Carter saw the pacts as clear violations of the Clery Act, which provides that “both the accuser and the accused shall be informed of the outcome of any campus disciplinary proceeding brought alleging a sexual assault.”
In July 2004, the department agreed, issuing a ruling against Georgetown for its “impermissible non-disclosure agreement for Clery Act purposes.” It ruled that Clery grants alleged victims a right to their proceeding outcomes, without restrictions, despite FERPA. Its final determination letter, dated July 16, required Georgetown to “discontinue its use of non-disclosure agreements.”
Carter then went after illegal gag orders elsewhere — like one presented to Alphia Morin at the University of Central Florida. Now a former student, Morin found the school’s process “very hidden to me” after filing a rape complaint against a scholarship athlete. In January 2005, the then-freshman learned she could only participate in the hearing before UCF’s Student Conduct Board as a “witness” to her alleged assault. Save for her 20-minute testimony, the board banned her from the room. Later, she learned she could only receive the verdict by signing a confidentiality agreement.
Morin went public with her predicament in the campus newspaper, prompting Carter of Security on Campus Inc. to send a cautionary e-mail to UCF President John Hitt, warning that UCF’s policy sounded illegal. Four days later, UCF sent Morin a copy of the verdict, with no written pacts attached. Carter managed to nullify verbal gag orders at schools including the College of William and Mary, among others, though he and administrators agree that written gag orders have always been pretty rare.
A Ruling against UVA
Kathryn Russell didn’t think much about her school’s policy until things went badly. At the hearing, board members asked questions making her wonder about their training — “Did it occur to you to perhaps leave the room?” “Why not just shut the door [on him]?” Sources familiar with the UVA board’s training describe it as extensive; in 2004, the school required members to undergo a day of preparation featuring a videotape and reading materials, as well as sessions with outside experts on campus sexual assault. One previous board member describes Russell’s panelists as open-minded and thoughtful. But the panel also judged her complaint using a “clear and convincing” evidence standard, which the Education Department ruled, in one 2004 case, is higher than Title IX authorizes — and which victim advocates argue is illegal.
In the end, the student Russell accused was found “not responsible” for sexual assault. The board instead slapped him with a verbal reprimand. “We … believe that you used very bad judgment,” Sisson declared. The case resulted in one of nine “not-responsible” verdicts the UVA board has handed down over the past decade, as compared to seven responsible ones.
“You can have a bad sexual experience but not be sexually assaulted under the university’s definition and standard of evidence,” says the prior UVA board member.
Russell saw it differently. “It was just a charade,” she said.
In light of all those warnings about confidentiality, Russell thought she could tell no one what happened. But in November 2004, her mother filed a complaint against UVA with the Education Department, alleging violations under the Clery Act. It centered on the verbal threats of punishment, as did a second complaint filed on behalf of another former UVA student, Annie Hylton. Hylton stated that she had feared repercussions from UVA for going public in the local press that same month, even though her hearing dated to 2002.
“That’s one reason I decided to go public,” she relays. “If they were keeping me quiet, who else were they trying to keep quiet?”
In its official response, according to case records and a written statement from the Education Department, UVA argued it wasn’t violating Clery so much as upholding FERPA and limiting what it termed “improper re-disclosures.” Officials contended they could enforce the confidentiality policy through “pre-conditions” like a verbal commitment. While defending its policy, UVA was also reviewing the 2004 procedures. By March 2005, UVA administrators had submitted to the department a revamped policy that would soften the language and eliminate specific secrecy requirements. The new policy says the university “neither encourages nor discourages further disclosure.”
In November 2008, however, the Education Department determined the school had violated the Clery Act. In a letter to UVA President John Casteen, it stated “the University cannot require an accuser to agree to abide by its non-disclosure policy, in writing or otherwise.” The November 3, 2008 letter added:
It is … clear that several UVA students were persuaded that failure to adhere to the confidentiality policy could have resulted in serious consequences ranging from disciplinary action to not being granted a hearing before the Sexual Assault Board in the first place.
The department’s UVA decision has made it clear that alleged student victims are no longer required to keep quiet about their hearing results. This year, in fact, the Education Department has amended its FERPA regulations to specify as much. The new regulations have thus effectively ended confidentiality requirements for hearing results on college campuses. But they have left open questions about broader secrecy requirements to participate in the college judicial process — even on the UVA campus.
Discretion or Lack of Accountability?
Inside the stately, red-brick Rotunda at UVA, administrators say the Education Department’s decision represents the byproduct of a confused legal environment. And they assert that the school had already changed its confidentiality policy by the time the department issued its ruling. Unlike before, they say, the school’s current procedures make plain that students can divulge their proceeding results, including accused students’ names and any sanctions. The school has also taken steps to improve the process: it has bolstered investigations of rape allegations; improved training for the assault board; and added a lesser charge of “sexual misconduct” to its standards of conduct. Susan Davis, assistant vice president for student affairs, says UVA has “struck a good balance now.” Indeed, deans elsewhere have touted the current UVA procedures as a national model.
But procedures at many schools, including UVA, still stipulate a confidential process — in formal hearings, and in informal mediations. For instance, UVA administrators still caution students not to discuss their proceedings during the process. Today’s written procedures still specify that all proceeding “documents, testimony, or other evidence … may not be disclosed.” Read the actual policy, and the only confidentiality language that has changed is the stipulation that students can divulge their proceeding results. But even that comes with a warning to, as the procedures state, “consult with legal counsel before doing so.” To critics, the silencing effect of the old confidentiality rules still holds. But to UVA deans — and their colleagues elsewhere — there is legitimacy to ensuring a closed process as it unfolds. Some officials, such as UVA’s Lampkin, insist a confidential procedure encourages reluctant alleged victims to come forward in the first place — a sentiment reinforced by some survey respondents. Others consider it crucial to ensure rights of accused students. Still others argue there is no need for outsiders to know details of campus rape proceedings because schools are deciding if a student’s conduct violated institutional rules — not criminal laws.
“I’ve yet to hear students say they want a public process,” says Davis.
“It’s a balance between figuring out how to give students a safe space,” Lampkin adds, “and having an environment where both the accuser and accused will come forward.”
But critics say that attitude fails to acknowledge a fundamental flaw in the college judicial system: Without outside scrutiny, it lacks accountability. “The reason for disclosure and public oversight is that we can’t allow educational institutions to police themselves,” observes Mark Goodman, former head of the Student Press Law Center, which has pushed for more transparency. He, like many critics, believes the institutional reliance on confidentiality does more to protect the image of colleges than the anonymity of students. “I have a fundamental disagreement with schools over the notion that justice can be reached in secrecy,” he says.
Controversy over Mediation
Not without unintended consequences, at least. In November 2003, Mallory Shear-Heyman, then a sophomore at Bucknell University in Pennsylvania, underwent a confidential mediation after reporting being raped in her dorm by a fellow student. Mediations became popular in disciplinary matters involving sexual assault earlier in the decade, and remain common today — despite controversy. In 2001, the Education Department deemed mediations improper partly because they carry no punishment. And while mediation is generally considered effective for resolving interpersonal conflicts, the department — and many critics — argue that it falls short in instances of sexual violence. The reason: an intimidating element exists between victims and their assailants because, like other serious assault, sexual assault is a violent act “In some cases,” the department states in its guidance document, referring to sexual assault cases, “mediation will not be appropriate even on a voluntary basis.”
But Bucknell administrators defend their use of the practice, which they now call “voluntary facilitated dialogue,” precisely because it only occurs at the request of an accusing student, with the willing participation of an accused student. Any power imbalance, they argue, is evened out by the presence of two administrators — one male, one female — guiding the conversation and assuring a comfortable setting. “Our students have really been key spokespeople for indicating they want some sort of option to have this dialogue,” says Kari Conrad, judicial administrator for sexual misconduct. “We feel confident in keeping this process as a responsible response.”
Shear-Heyman remembers Bucknell officials portraying the off-the-record session as an attractive way to confront the accused student, “as if it were the best option ever.” Confidentiality, they relayed, would allow for more open and honest discussion. She was presented with a waiver, which specified that “information first disclosed during mediation may not be used in any subsequent internal University proceeding.”
But Shear-Heyman wouldn’t grasp the waiver’s implications until the accused student, she says, implicated himself. Bucknell records show the student apologized to her in instant messages, admitting “b/c you got hurt, yes,” what had occurred was rape. She says he repeated the admissions before the two deans who participated in the mediation — Gerald Commerford and Amy Badal. The waiver did not prevent Shear-Heyman from pursuing outside remedies. But the deans, she says, gave her the strong impression that she couldn’t use what had occurred in the session — on or off campus. When she later considered pursuing criminal charges, she says, the deans claimed not to remember the accused student’s alleged admissions.
Both Commerford and Badal stated they don’t remember details from Shear-Heyman’s mediation, including possible incriminating statements. And they claim not to recall her later asking them to corroborate such statements. “I don’t recall any such scenario,” says Badal.
Bucknell administrators insist it is standard practice to inform participants verbally and in writing that pursuing mediation won’t preclude them from filing charges — on or off campus. Commerford describes himself and Badal as “sticklers about following the protocol.” “I cannot speak for Mallory and her interpretations,” he adds, “but I can tell you that we followed the protocol to a T.”
One former Bucknell employee familiar with Shear-Heyman’s mediation finds the practice “a problem because alleged assailants can say whatever they want without any repercussions” — a criticism voiced by many victim advocates. Bucknell University officials confirm that they wouldn’t take action against an accused student who apologizes or confesses in mediation unless the victim were to file charges first — something that Shear-Heyman found pretty pointless. “After I’d realized how much I got screwed with the confidentiality,” she says, “I didn’t want to pursue anything further with the university.” The former employee adds, “I absolutely think the practice serves the interest of the university, not the victims.”
As for Russell, her life unraveled in the years after her proceeding at UVA. She lost weight, moved home, and divorced herself from friends. For years, she would find herself replaying in her mind, endlessly, details of her proceeding. She’s long struggled to reconcile the fact that what she endured in pursuing a complaint had been for naught. Nothing had happened to her alleged assailant. “He was barely inconvenienced by having to attend the hearing,” she says. Three years ago, Russell filed a civil lawsuit against him in Circuit Court for the City of Charlottesville, laying out her story in a complaint. The suit was never served on the man and eventually was dismissed at Russell’s request, because, she says, she could not afford an attorney. The injustice of seeing her alleged assailant go unpunished has been, in her words, “the worst thing imaginable.”
More recently, Russell discovered that the same student faced a second rape complaint at UVA. In April 2005, nearly a year after Russell’s hearing, Rebekah Hay, then a UVA junior, filed that complaint, which ended up before two assault boards because the accused appealed — the first board returned a verdict against him; the second did not. Hay remembers Dean Rue addressing the suspect’s history when she had filed her complaint. “She said to me, ‘I’m sorry to see this name come up again,’” Hay recalls.
UVA administrators — and the alleged assailant — have stayed silent on the specifics of this complaint. Hay has never spoken publicly about her UVA case — until now. After all, the confidentiality of those proceedings was emphasized at UVA, she says, “and repeated and repeated and repeated again.”
Kristen Lombardi writes for the Center for Public Integrity, from which this article is adapted. Center staff writer Kristin Jones contributed to this article.