This article is the second 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.
You can read the first in the series here.
Trigger Warning: This article addresses issues related to sexual violence.
The man she says raped her is still on campus.
D, who asked to remain anonymous, says she was raped during the first month of her freshman year, almost four years ago. When she reported her assault, the dean suggested she write a letter to him or have a mediated conversation. When she asked for him to be moved out of her residence hall, the College refused. When she asked to take her complaint to the College Judiciary Committee (CJC), she was told Swarthmore doesn’t expel students for sexual assault. When she went forward with a formal proceeding anyway, the College told her there was insufficient evidence.
Besides P, who told her story for the first part of this series, D is the only other survivor for whom the College has records stating that they made it to the end of a CJC proceeding. The announcement of her case’s outcome, from March 4, 2010, states “there was insufficient evidence to determine that it was more likely than not that a violation occurred.”
Afterwards, nothing happened. The two will graduate together this June.
D says the CJC hearing was the worst thing she’s ever been through. During the hearing, members of the CJC asked about her sexual history. They asked her why she didn’t run away. They questioned her emotional stability.
Like P, D could be risking disciplinary action in speaking about her CJC case, according to Swarthmore’s Student Handbook 2012-2013, which was overhauled in the Summer 2011. It states, “Any breach of confidentiality by a hearing participant, including the complainant or accused, shall constitute a violation of College policy and is an adjudicable offense.”
In an e-mail to The Daily Gazette, Dean of Students Liz Braun clarified that administration’s confidentiality requirements include all aspects of the CJC proceedings: the conversations in preparation for the hearing, what is said during the hearing, and the outcome of the hearing. Complainants are also not allowed to publicly challenge the findings of the CJC, as it may create a hostile environment for the accused. While Braun wrote that she has never had to deal with anyone breaking confidentiality, she wrote it may be something the College would have to address.
“I am very concerned . . . that students are speaking about participating in a CJC case,” Braun wrote. “The confidentiality is a cornerstone of the process, and I sincerely hope that any student . . . would maintain this confidentiality.”
Braun says this policy is in place to protect all students who go before the CJC, so that they know their cases will remain private, so that the reputations of those found innocent are not irreparably harmed, and so that student members of the CJC feel safe and comfortable participating in the proceedings.
But enforcing this policy would be a federal crime.
Under the Clery Act, enforced by the U.S. Department of Education, colleges and universities are prohibited from requiring students who go through college judiciary proceedings to keep confidentiality.
According to Adam Goldstein, attorney advocate at the Student Press Law Center, the Clery Act explicitly states colleges must release information about the outcomes of judiciary proceedings to the participants of that case, and colleges cannot put conditions, such as nondisclosure clauses, on access to that information.
“The position of the Department of Education has been that the access to information can’t be burdened,” Goldstein said. “A prohibition on the disclosure [of CJC proceedings] is a burden on the access to the information, so hypothetically anything can be disclosed from the process.”
Goldstein says the core of this interpretation comes from the regulation requiring colleges to disclose the outcomes of judiciary proceedings to the participants. Since the Department of Education has ruled in the past that requiring students to keep confidentiality is an unjust stipulation to accessing that information, colleges cannot ask participants to keep confidentiality.
The specific line in the Clery Act that Goldstein was referencing is §668.46(11)6B, sometimes referred to as the Campus Sexual Assault Victim’s Bill of Rights, which states, “Both the accuser and the accused must be informed of the outcome of any institutional disciplinary proceeding brought alleging a sex offense.”
While the law does not explicitly state what the complainant or the accused can and cannot say, the Department of Education has ruled to force universities to discontinue using nondisclosure agreements in college judiciary proceedings involving sexual misconduct.
In July 2004, the Department of Education ordered that Georgetown University stop requiring participants of sexual misconduct cases to sign nondisclosure agreements in order to hear the outcome of their cases.
The case was brought against Georgetown University by a student who won her disciplinary hearing against her assaulter. He was expelled and later permitted re-admission, but they didn’t inform her of either decision.
She requested to know the results of the hearing and what sanctions would be put on her rapist in order to decide if she would continue studying at Georgetown. The University refused to tell her unless she agreed not to say anything about it.
In a letter to Georgetown University President John J. DeGioia, the Department of Education wrote that the complainant and the accused must have access to the outcomes and sanctions, “without condition.”
Goldstein said the right to have information is synonymous with the right to distribute it. He said the goal of this part of the Clery Act is to give victims as well as the accused the right to tell the story of what happened to them. If that story includes what a committee member said in a hearing or what a dean told them before going in, they are allowed to share it.
It is for this very reason the University of North Carolina-Chapel Hill is currently under investigation by the Department of Education. The University threatened disciplinary action against a survivor who talked about her hearing after it was over.
UNCCH argued that in doing so, she was creating a hostile environment for her alleged rapist.
The interpretation of the law is up for debate, but as Goldstein puts it, “If I didn’t want to be federally investigated and I was a dean, then I would be disinclined to maintain that policy.”
D says she isn’t sharing her story now because she wants to punish her alleged rapist; she said she never did want to punish him. In an interview, Dean Westphal explained that the CJC’s goal is not to punish, but rather the message it tries to send is, “You made a mistake, you have to take responsibility for it, you have to take some sort of punishment, but the goal is to learn to be a better decision maker, to be a better person from this.”
D just wanted to feel safe on campus. Now, she says she hopes telling her story will help others who need the CJC. When she went through it, she said there was no information about it, no guidance.
For her, the process was gruelling and confusing from the beginning.
When she first reported her rape, it was the second month of her freshman year. Her friends told her to see Dean Karen Henry, then serving as the Gender Education Advisor in charge of advocating for survivors of sexual violence.
When she first met with Henry, D says, Henry was cold and seemed skeptical of her story.
“I think her intentions were good, but I think she had an idea of what legitimate rape looked like and my rape did not fit her criteria,” D said.
For starters, D knew her alleged rapist. She knew him well. They knew each other before they came to Swarthmore together. Once at school, they stuck together in the same friend group, lived in the same residence hall, and had classes together. They had a hooking up relationship. He was someone whom she respected and cared deeply about.
“I think she [Dean Henry] didn’t know what to make of it,” D said. “Because I was also really reticent to talk about any details right up until I had to write them up for the CJC statement.”
It was a Friday night, and they both had had a couple drinks. They had snuck away to an empty room in one of the residence halls to kiss and cuddle. Then he shut the door.
D said she didn’t want to kiss him anymore. She struggled against him but he continued.
“I wasn’t able to move. I was just frozen. I was just trapped, both physically and emotionally. Just trapped,” D said. “I was bleeding and bruised. I remember my head on the floor, and it was terrifying.”
During her CJC hearing, the committee asked her why she let him close the door.
She only told a couple of her friends what had happened. One of their mutual friends told her she probably hadn’t been raped; he said he doubted it. D says she herself struggled to process what had happened to her.
“There was no mistaking [that it wasn’t consensual],” D said. “But it’s easy to couch it in ‘that was just a shitty night.’”
D says she talked to another friend who helped her understand the gravity of what he did to her. Still, she said it was hard to know what to do.
“We were freshman and part of a small friend group, and he had been a very close friend of mine for years,” D said. “It’s hard to sever ties so quickly and to process an act of violence like that.”
When she went to the deans and reported her assault, she asked if they could move him out of her residence hall. D said they told her they wouldn’t be able to move him, but they might be able to find her another room.
She ended up moving, unofficially, to Kyle House, an all-women’s residence hall, where she slept on the floor of her friends’ room.
D says she talked to him afterwards, a fact she said was used against her during the hearing. The first time, it was to talk about what had happened.
“He admitted what he had done. He said he was really sorry, and I felt that,” D said.
Henry, with whom she had been meeting as a counselor, originally suggested informal ways of dealing with the trauma. Henry offered they resolve it through a mediated discussion, which she says Henry told her would compromise her ability to move forward with a CJC case later.
According to the Department of Education Office of Civil Rights, informal resolution is never an appropriate course of action in addressing allegations of sexual violence.
The “Dear Colleague” Letter, published a year after D’s case, states, “In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.”
She talked to him again about what happened in December; it was to tell him she was going to go to the CJC.
“I started feeling really unsafe. I decided to go to the CJC because it was the only way I could get a safe environment,” D said. “My intent was not punishment. My intent was not ‘I want him to pay.’ I wanted a safe environment.”
During the hearing, D said one of his arguments that he didn’t rape her was that she had been in contact with him and had continued to be friends with their mutual friends.
When she pushed to move forward with a CJC hearing near the end of December, D says Henry told her the chances weren’t good.
“She was very, very, very adamant that Swarthmore does not expel people for this; Swarthmore is very much not about punishing people,” D said.
D says Henry gave her a general overview of the process. D knew she would have to write a statement and read it in front of a committee. She had chosen Henry to be her support person. But she said that beyond that, she was lost.
“This was so frustrating. There’s nothing. There are no resources about the CJC,” D said.
In an interview with The Daily Gazette, President Rebeccca Chopp said she will announce today a website with information detailing the policies and procedures of the CJC.
When D was preparing for the CJC, she says she went to the Men’s Rugby Team for guidance. She says she heard they had gone before the CJC for a streaking incident, and they were the only people she knew who had gone through the judiciary process.
She says Henry told her two days before the hearing that alleged rapist was bringing witnesses. “I didn’t even know we were allowed to have witnesses,” D said.
She was able to have three of her friends write statements for the CJC hearing on her behalf.
The morning of the hearing she received an email from Garikai Campbell, then acting dean and convener of the College Judiciary Committee, who wrote one of her witness’s statements would not be included because the witness used the term “rape” instead of “sexual assault.”
D shared a portion of the letter with The Daily Gazette. It reads:
“I received your 3 witness statements this morning, and have reviewed each. We will include two of the three . . . The third, from ______, is problematic in that it uses the word “rape” to describe the event, where ______ is being officially charged with “sexual assault.” I do feel that the testimony from ______ covers much of the same information and so we hope that the two letters will appropriately address the issues you are hoping to address.”
D said she was shocked, and didn’t have enough time to ask what the difference between “rape” and “sexual assault” was.
“I was raped,” D said. “I still don’t really understand the logic of that particular technicality.”
D’s alleged rapist was charged with sexual misconduct. The 2012-2013 edition of Swarthmore’s Student Handbook does not mention the term rape in any context related to sexual misconduct. Rather, it defines sexual misconduct as a “continuum of behaviors ranging from physical sexual assault and abuse to sexual harassment and intimidation.” The Department of Education defines rape as a form of sexual harassment.
D says the hearing was one of the most difficult moments of her life but also an empowering one.
“It was so painful sit there and to have all this stuff that was ridiculous be asked of me,” D said, but in another way, “just having that experience was really empowering and helpful.”
In an interview with The Daily Gazette, Dr. Chris Krebs, who led the study on sexual assault on college campuses cited in the “Dear Colleague” letter, says mismanaged college judiciary procedures are, unfortunately, still all too common.
“There are still universities where victims and perpetrators go in front of an honor board, and there’s no due process,” Krebs said. “Victims are subjected to questions and accusations in ways that would never be allowed in a court of law, and it’s incredibly humiliating.”
Those types of questions are the ones D says the committee asked her: how much did you drink? How many people have you slept with before? Why didn’t you run away? Did you expect he might do something like this? You say you had sex with him before?
Krebs doesn’t know the ins and outs of Swarthmore’s CJC procedure. He hasn’t read the student handbook or talked to a Swarthmore survivor. But he says to him it seems impossible to imagine, even at a small liberal arts college like Swarthmore, that rape hasn’t occurred. If it has, and if Swarthmore has a zero-tolerance policy for sexual assault as Chopp stated in her email, then the fact that the college has never taken action against a student accused of sexual assault is concerning.
When the hearing was over, Associate Dean of Student Life Myrt Westphal and Campbell called D in to speak with them. They told her the committee did not have enough evidence to believe it was more likely than not that he had sexually assaulted her. They told her it was her word against his.
“I asked them ‘do you know that most rapes happen this way? They said ‘yes,’ and I said, ‘then you know you don’t have a system in place to address this,’” D said.
D said that she asked them if they could move him to another residence hall. She says Westphal and Campbell told her there was nothing they could do, but that the Dean in charge of residential life would try to find her a new room. They never followed up.
D said she spent the rest of the year living in between her room in the same residence hall as him and the floor of her friends’ room.
She still sees him on campus.
“Last semester, I would see him on my hall a lot,” D said. “I went to talk to the deans and they said there was nothing they could do about it.”
The notice of her hearing was not posted until last semester. D says she walked by the display case on the first floor of Parrish Hall where the CJC outcomes are posted every single day to see if it was up. She talked to multiple deans asking for it to be posted. They told her it was probably just an oversight. Last semester when she inquired about it, she says Westphal told her it had probably already been taken down. Today it is posted with the other CJC announcements.
D said that the main problem she faced with her case was an unprepared administration and a system that does not support survivors.
“I was told over and over again that ‘we’re not experts on that,’” D said. “Become an expert or hire an expert.”
“My main problem is that they were obstinately uninformed about how to do this,” D said. “There is no reason why you should be asking me how many people I had sex with.”
Since D went before the CJC, Braun says the College has implemented sexual assault sensitivity training for everyone who serves on the CJC.
Westphal, who oversees formal disciplinary proceedings, says members of the CJC are much more educated now about sexual violence.
“They’re learning at a much deeper level about sexual misconduct. It means that they are more careful and thoughtful about what they ask and what they think,” Westphal said.
According to Braun and Westphal, the purpose of the CJC is to be educational.
“At Swarthmore, I think we look at the judicial process as more of an educational experience,” Westphal said.
Westphal acknowledged that this guiding spirit of the CJC isn’t always sufficient for handling sexual assault cases. Westphal says the process is different from any other disciplinary action with sexual assault because the ramifications of the act are longer lasting, and involve another student, unlike plagiarism. But she says she’s not sure if we as a society have figured out how to handle this kind of misconduct.
Westphal says she believes the CJC process is usually effective. She says students who go through the CJC are not likely to repeat their offense because the process is so traumatic.
“I really think the system that we have is a good one, and a caring one, and an educational one, and a thoughtful one,” Westphal said. “Does it solve all our problems? No.”
Westphal says Swarthmore is always open to suggestions from students.
“I would like it if we could figure out a system that could teach people from their mistakes, keep people safe, and figure out how to alleviate the hurt,” Westphal said.
In a campus-wide email on Monday, Chopp announced the College would hire an outside firm to do an external review of the College’s policies and procedures for addressing cases of sexual assault.
In an interview with The Daily Gazette, Chopp said she has not yet named a firm but had her first conversation a representative from one last night.
She says she’s been in conversations with administrators at Amherst College, who hired an outside firm to review their sexual assault policies following Angie Epifano’s account of her sexual assault in The Amherst Student last semester.
Chopp says her first step will be working with Board of Managers Chair Gil Kemp ‘72 to put together an internal committee made up of students, faculty, staff, and managers to be led by a faculty member.
“Ever since I arrived we’ve been working on these issues,” Chopp said.
She says her first step was hiring Braun as someone who she believed has a background and real commitment to working toward supporting survivors and sexual assault prevention and education.
“We’ve reviewed our policies. We’ve changed our personnel. We’re looking for new people,” Chopp said, noting the first candidate for the open dean position that will oversee the disciplinary process.
She says she’s heard concerns from students, faculty, and staff. D says her concern still is, “my social safety and my emotional safety as a student was not taken into consideration.”
“One of my greatest concerns is how to make students feel safe in coming forward to report,” Chopp said. “I know it’s very difficult.”
Policy changes following the external review probably won’t be instituted for at least another semester. As Swarthmore moves forward, it will have to rebuild trust with the survivor community, something Krebs says is not easy to do.
“When universities handle things [poorly], there are implications and sometimes that takes the form of victims not being comfortable coming forward,” Krebs said. “Other victims hear about it.”
Chopp and Braun will be having an open conversation about community tonight at 8-9:30 p.m. in Eldridge Commons in the Science Center.
In the next article, The Daily Gazette speaks with another survivor, takes a closer look at the purpose of the CJC, and reports on possible legal action.
Photo Illustration by Max Nesterak/The Daily Gazette