This article is the first in a series of articles devoted to investigating sexual assault at Swarthmore College. In this series The Daily Gazette speaks with survivors, explains Title IX and federal law, analyzes college disciplinary processes, describes changes to college policies, researches sexual assault statistics and their meanings, and looks at educational programs and survivor services on campus.
Trigger Warning: This article addresses issues related to sexual violence.
As far as Swarthmore can remember, no one has ever been expelled for sexual misconduct. In fact, the College has never officially disciplined anyone for sexually harassing or assaulting another student.
The last public record of the College Judiciary Committee (CJC) meeting to consider charges of sexual misconduct was in Spring 2010. The public notice still hangs in the hallway on the first floor of Parrish Hall. It’s four sentences long and doesn’t give much detail about the case, only that on March 3, 2010 the student accused of sexual misconduct was found not guilty. All other details are confidential. It reads, “The committee was in consensus that there was insufficient evidence to determine that it was more likely than not that a violation occurred, and therefore the student was found not guilty.”
In the past 10 years, which is as far back as the College has records, only one other case of sexual misconduct has made it through the CJC process. In that case, the student was found guilty in Spring 2011 for sexually assaulting another student. The College did put sanctions on him but could not comment on the specifics of their decision. Dean of Students Liz Braun said the most typical outcome of a guilty CJC finding for sexual assault would be a required withdraw from the College for a period of time, usually a year.
But there’s no public record of the 2011 case ever happening. In fact, for all intents and purposes, the accused left the College in good standing.
That’s because the case is not technically over. The student appealed the committee’s decision and was granted a new committee hearing. But before he went through his second hearing, he withdrew from the College and transferred to another school. Now his case sits in limbo. As long as he doesn’t ask to return to Swarthmore, he will never have to go through the appeals process or tell anyone he was found guilty of sexual misconduct.
Despite the original verdict being nullified, the survivor said she’s glad she went through the CJC process.
“What I do know is I stood up for myself,” said P, who asked that we not use her name. “The first part of the CJC process was empowering. There was a guilty finding, [and] the outcome is that he is no longer on campus today.”
Yet her story reveals serious flaws in the College’s procedures for handling sexual assault. In the four months it took to resolve her case, P faced a disorganized and unsympathetic administration. Deans made mistakes regarding confidentiality, questioned her experience, and couldn’t, ultimately, hold her perpetrator accountable.
Some of the disorganization and confusion of the administration P describes could be attributed to the timing of updates to Title IX. Just weeks before P reported her assault, the U.S. Department of Education released the “Dear Colleague” letter, reminding colleges and universities of their obligation to protect students from sexual assault. It has been the reason colleges across the country, including Swarthmore, have overhauled their sexual misconduct policies and procedures. But when P’s case arrived, the college hadn’t made institutional changes. They were still using their old policies while trying to uphold a law they didn’t yet understand.
P’s story begins in early April 2011. She has trouble talking about the details of her assault because it causes her to have flashbacks. What she did share is that in early April 2011 she went back to another student’s room after an on-campus party. She told him no multiple times, but he didn’t stop. She left his room confused and distraught. She spent the night in a friend’s room, and texted several close friends to tell them something had happened. She didn’t tell them she had been sexually assaulted, just that something bad had happened—something that she didn’t know how she was going to deal with.
She said that the next day, she blamed herself for what had happened. She shouldn’t have drank at the party. She shouldn’t have worn what she wore. She had been warned about him. She shouldn’t have gone back to his room. She should have tried to leave sooner.
“I really wanted to take responsibility for what happened, so I needed to blame myself,” P said.
Her friends encouraged her to meet with First-year Dean Karen Henry ‘87, then in charge of working with survivors of sexual assault, abuse, and rape. P said she went to Henry for counseling and emotional support, to figure out what had happened to her.
Henry wasn’t new to working with survivors; it’s the work she’d been doing for most of her career. She holds a Ph.D. in Psychology from Temple University and was hired by the College in 1993 as the first Gender Education Advisor. Henry is also a survivor herself.
During her time as the Gender Education Advisor, Henry says she provided support and advocacy for students separate from the CJC and other administrative action. In addition, she also served as the advisor to the Sexual Misconduct Advisors Resource Team (SMART), the Acquaintance Sexual Assault Prevention (ASAP) group, the student support group for survivors of sexual trauma Swat Survivors, and to the Women’s Center.
But P said instead of counseling, Henry gave her a “cold, administrative” response. P says in their first meeting, Henry asked her probing questions, having her go through all the details of her assault. P says she was made to feel uncomfortable by what she thought were inappropriate remarks such as Henry asking her how many drinks she had had and then telling her that was quite a bit for a woman of her size.
P says Henry acted surprised at P’s sexual inexperience and told her she may be confused about what had happened. P says Henry told her she seemed to be a “sheltered” and “repressed” person.
Henry is not able to discuss details of particular students’ cases but did say that it is possible students might recall conversations they had had with her very differently.
“I can say something and it can always be heard in a different way than I meant it,” Henry said.
She said in her role serving survivors of sexual assault she has always tried to be an advocate for students. She said she has never tried to persuade a student to take a particular action or to discredit her or his experience.
“As a survivor myself, it’s always challenging to have my integrity questioned,” Henry said. “I didn’t enter into the job to make things difficult for students. In the time that I did that job I met some incredible students who have overcome some incredible trauma.”
Henry no longer serves as the dean assigned to supporting survivors of sexual harassment and violence and is no longer a confidential reporting resource. She says she enjoyed the work but wanted to explore other facets of her job as a dean. In Fall 2011, when the College overhauled its policies and procedures addressing assault, Director of Health Services Beth Kotarski stepped up to fill the role of an administrative advisor and advocate to survivors.
When P met with Henry, she was only seeking counseling. Instead, she was asked to report her assault, a process P said wasn’t clearly explained to her. Only after P told Henry everything that had happened, did Henry tell her she was non-confidential reporting source and would have to report the assault.
“[She] started pressuring me to report this, and then I said I don’t know if I’m comfortable doing that,” P said.
P says Henry ended up giving her what felt like an ultimatum. P says Henry told her she should take a couple days to think about it and then tell her if it was really assault or just a misunderstanding. If she thought it was assault, she would have to report it.
“Either I had to lie and tell her I wasn’t sexually assaulted or I had to go through this reporting process, and I didn’t know what it entailed,” P said.
When P returned to talk to Henry to tell her that she was certain it was sexual assault, P says Henry accused her of changing her mind and said P might be relying too much on what her friends thought.
P said she was originally opposed to going through any sort of formal procedures, was even uncertain how successful her case would be. She definitely didn’t want to make a criminal complaint because she didn’t have a rape kit or any sort of evidence besides her word.
“I understand why a lot of people don’t come forward because it was my word versus his,” P said. “I know that I said no multiple times. I know that was ignored, but it’s not like there’s any way to prove that.”
It should not be difficult to find a student guilty of sexual misconduct. According to College policy set by Title IX regulations, the CJC must only determine it was more likely than not that a violation occurred.
P said she mainly just hoped it was a one time drunken mistake. She doesn’t believe in accidental sexual assault, but she wanted to believe that it wouldn’t happen.
Then two other women told her that he had also assaulted them. She decided that she needed to report her assault and go through the CJC process.
“I realized that this was not a one time drunken mistake. This guy is a serial rapist,” P said. “I thought this would happen again, and I felt like I had a duty to do whatever I could to protect other women at Swarthmore.”
Together the three went to Associate Dean of Student Life Myrt Westphal, who moderates CJC cases and counsels students through the process, to see if they could bring a joint case against their perpetrator. P said they had to speak to Westphal in terms of hypotheticals because if they said anything particular, Westphal, as a non-confidential resource, would have to report it.
Under the new policy changes, reporting sexual assault means the Title IX coordinator will document the report and start an investigation. Survivors can then use the summary of the Title IX Coordinator’s investigation in a CJC case, but only if they choose to proceed with formal resolution. During P’s time, it’s still unclear what reporting meant.
“It was very difficult to get advising on what to do because no one could actually advise you. If they knew something about it they’d have to do something about it,” P said.
Westphal told them multiple people cannot bring complaints against a single individual for sexual assault unless the assaults happened at the same time. That meant, each woman would have to proceed independently.
Not wanting to be in a room with him and feeling the entire process would be too much for them to go through alone, P says the other two survivors decided drop their complaints against him. P said she was also terrified of going through the CJC process but said she couldn’t let herself drop it knowing he was still a danger to other women on campus.
P said she was having panic attacks whenever she saw him.
“I remember counting the number of days I could go without seeing him, which I don’t think I made it past three,” P said. “You go to McCabe, you see him. You go to Sharples, you see him. You walk across campus, you see him.”
The CJC is not an easy process. Students are advised to bring witnesses. At the time, they had to write official statements, a role now filled by Sharmaine LaMar, the Title IX coordinator. Most difficult, survivors must say explicitly what happened to them in front of their perpetrators and the entire CJC committee made up of faculty, staff, and students.
Everything about the CJC process is completely confidential; the conversations leading up to it, the proceedings, and the outcomes, except the final finding that is posted by the administration. In telling her story, P is risking possible disciplinary action from the administration, though she has withdrawn most specific information regarding her case.
In an email to The Daily Gazette, Braun wrote that she has never dealt with anyone breaking CJC confidentiality, so she couldn’t say what the administration could or would do if a student broke confidentiality. Braun stated that she would encourage anyone who had concerns about the CJC to talk to herself or Westphal.
“The confidentiality is a cornerstone of the process and I sincerely hope that any student . . . would maintain this confidentiality,” Braun wrote.
At meetings that can last for over two hours, survivors of sexual assault must also hear their perpetrators’ testimony and answer questions from the committee in front of the perpetrator. While, according to Westphal, neither party is “generally” allowed to question each other. They may, however, address what the other said in written or oral testimonies. For example, a perpetrator or survivor may circle back to challenge a statement by the other in answering a question from the CJC board.
“A lot of survivors I’ve talked to don’t want to go to the CJC because they’ll be facing this person, and I don’t think people realize how traumatic that is,” P said. “Even being in a room with the door shut for two hours seemed like a terrifying thing.”
P said she decided to go through with her case alone, but she would only be allowed to talk about her specific case. She would not be able to tell the committee about other instances of assault she knew about.
She said the process leading up to the hearing was grueling and confusing. P was advised to bring witnesses.
When alcohol is involved, the deans may advise having a friend serve as a witness to answer questions about how much a student had been drinking and how inebriated that student was.
She said she and her witnesses were required to write formal statements that he was able to read a week and a half before the hearing. He wasn’t required to write a statement, and she only received his witness list a day before the hearing.
P said she challenged the permissibility of one of his witnesses.
Since her case, the College has created a “Wheel of Resources” outlining confidential resources on campus, which include religious advisors. Counselors, SMART Team members, Worth Health Center Personnel, and the Drug and Alcohol interventionist are also listed as confidential reporting sources. According to the law, religious advisors and health professionals are considered privileged sources, and it’s illegal for them to break confidentiality.
“That was a big thing with the CJC, everything I brought to them they were like oh, we’ve never had this problem before,” P said.
According to Braun, the College began reviewing its processes in the Spring and Summer 2011 and rolled them out officially in Fall 2011. Since the “Dear Colleague” letter was published Swarthmore has created the Title IX Coordinator position charged with investigating every report of sexual harassment and has begun sending out a campus-wide email once a semester detailing resources for survivors of sexual misconduct.
“It was an awkward time,” P said. “They told me they didn’t know how to deal with the Title IX stuff.”
Meanwhile, P said she was struggling with her academics. She said members of the administration advised her to go home if she wasn’t able to keep up with her work.
“I was having a hard time doing my work and even going to class,” P said.
The hearing was scheduled to happen during finals week that spring. P says the deans struggled to find enough committee members available for the hearing and asked her if she could postpone it until the fall. The thought of going all summer with it hanging over her head and then have to go through the CJC process the first week back to school was unbearable.
Instead, she took incompletes in all her classes and the deans rounded up enough members for a hearing. She said she is appreciative of the administration for letting her take incompletes and finish her work after the hearing was over.
When she entered the room on the day of the CJC case, they had positioned the chairs so P would be sitting directly across the table from her perpetrator. P said her friend who came with her for support suggested they rearrange the seating so that they were on opposite corners of the table, a set-up Westphal says is standard now in CJC hearings.
When she was asked to share her story, she said she was able to look at her support person the entire time and didn’t need to look at him.
“Being in a room with him was horrible, but it was really great when I realized I could say what happened and he could lie all he wanted but he couldn’t shut me up,” P said. “I thought it was really empowering.”
The committee found him guilty and had put sanctions on him. P said she was ready to go home, finish the work for her incomplete courses, and begin healing from the trauma. But in June, she received an email from the Deans saying the man who assaulted her had appealed the decision. She says the administration did not give her a copy of the appeal.
“It was the worst summer of my life. I spent the whole summer with this hanging over my head. It was horrible because I went home thinking he’d [been sanctioned], things will be okay, and now I can finally process this trauma and move on,” she said.
The student handbook states that either party may appeal a decision made by the CJC to the president or the provost within 10 business days of receiving the written decision of the CJC. Students are only allowed to appeal a case if there is new evidence to consider or if there was a procedural error made by the hearing panel. Westphal said students could also appeal the decision if they felt the hearing panel had misinterpreted the College’s rules.
In the case of an appeal, the president would form a new panel, the members of which are not required to be members of the CJC. She would also appoint a new moderator, or convener, and observer. Generally the panel would consist of two students and two faculty. They may either affirm or turn over the original decision, and may increase or decrease sanctions. In any case, their decision is absolutely final.
P is not allowed to say on what grounds he was able to appeal his case.
According to Braun, since the case, the College’s definition of sexual assault has been rewritten. Braun said the College rewrote the definition of sexual assault to be clearer during the summer 2011 policy overhauling.
“If you look at the definition it has some clear bullet points underneath it. It was more explanatory than what we had had in the past which I think had felt too vague,” Braun said.
In regards to P’s case, Westphal could not confirm details specific to his appeal but said that students must only verbally indicate that they wish to appeal and either party may ask for more time to consult with family or to think about it.
She also wasn’t sure what the appeals process would be. But one thing was certain: she would have to go back into a room with her perpetrator and tell her story again.
In her email, Westphal wrote that in the case of an appeal, the new hearing panel would hear the case from the very beginning.
“I think it’s horrible. It [drove] me crazy to think that [the administration] would even consider making me go in a room with him again three months later and do this whole thing again, but I [said I would] do it if I need to,” P said. “I said I would not back down. I will do this again if I have to.”
She said she wasn’t given much information from the administration when she called trying to figure out what was going to happen. Because students can make verbal appeals, there is not always a written document detailing by the appealing party on what grounds an appeal is made. Until they went through the appeals process, which was still unclear to P, they told her they wouldn’t know if he would be back on campus in the fall or not.
By mid-July she still didn’t know what the outcome was. She said she had talked with her parents and decided that if he returned to campus, she would transfer to another college. The appeals committee was not set to meet until that fall.
“I [couldn’t] imagine coming back [the next] year and having to do this whole thing again,” P said. “Basically coming back to campus with the knowledge that at the end of the day one of us was not going to go to Swarthmore anymore.”
It was too late to apply to transfer or apply for an internship for the fall. She said she was stuck, and couldn’t do much of anything except wait.
“You don’t know what the hell you should be doing with your life,” P said.
At the end of July, they told her he had withdrawn from the College.
Yes, she wasted a summer. Yes, the process was disorganized. And yes, the committee’s finding of guilt no longer stands. Yet she says she was happy she did it.
“I think it was an imperfect process, but I wouldn’t want people to feel discouraged about reporting or going forward with the CJC proceeding,” P said.
But the CJC does not, or at least did not, have a strong reputation among the survivor community and even the administration. Braun said when she was hired one of the main issues she was tasked with improving was the CJC process, specifically for students of sexual assault.
“I was asked about [it] even when I came for my interview,” Braun said. “I heard a lot of feedback right from the start from students concerned with both resources related to sexual assault and some of the policies, the processes, [and] transparency. It was a recurring theme in a way.”
In the seven years that Westphal as served as the dean tasked with advising students on the CJC, she says she’s met with at least seven students who asked about how the process worked and has counseled at least seven other students who began the process but did not finish it.
The number is strikingly low when compared to statistics from one study cited by the U.S. Department of Education that states 1 in 5 women will be sexually assaulted during their college career.
In the next article, The Daily Gazette speaks with another survivor, investigates how the Clery Act affects the College’s policies, and takes a closer look at barriers to reporting and bringing a case to the CJC.
Photo Illustration by Max Nesterak/The Daily Gazette
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