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?”

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.

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.”