Looking Over Her Shoulder
Campus sexual assault probes pose challenges for colleges
FAIRFIELD — As the days, weeks and months went by after filing a sexual assault complaint with the Title IX officer at her school, the trauma of the experience mounted for Hannah Lawlor.
She was socially ostracized and lost friends. The 20- yearold Cheshire resident said familial relationships were strained and her mental health suffered. In the months following the alleged assault, on multiple occasions she ran into the student on campus.
Even two years later, Lawlor said she still struggles in large crowds and often fears for her safety. In certain social settings, she “shuts down.” In recent months, she’s been ridiculed by peers, who say she merely regretted a hookup.
And she’s struggled at times with night terrors and periods of sleeplessness.
“During the day, I was good,” Lawlor remembered. “But I did not sleep. Even into sophomore year, I just slept in a chair. I thought, ‘ I’m not
going on my bed.’ ”
As a result of the incident, which occurred in March 2018 during Lawlor’s freshman year at Fairfield University, the school determined through an internal Title IX investigation that the accused male student committed nonconsensual sexual contact. The student was dismissed from the university at the end of the semester. But it offered little solace for Lawlor, who felt the entire process was unjust.
That feeling is not uncommon.
There are the most egregious examples of what critics claim show universities protecting prominent abusers, calling into question the safety of the accusers. And there are wellpublicized examples of accused male students, who are eventually found innocent, suffering severe consequences that some say violate their due process rights.
And despite well- intended changes to policies and procedures, some of which were mandated by federal or state law, universities must often strike a delicate balance, protecting the rights of the accusers and the accused while seeking out the truth in what are often incredibly nuanced cases.
“Universities regularly mishandle cases in ways that harm both the accusers and the accused,” said Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education. “In one case, that might mean railroading someone. In another case, that might mean sweeping something under the rug.”
Sexual assaults on campus
A Fairfield University spokeswoman declined to respond directly to Lawlor’s allegations, citing a school policy that prohibits comment on specific cases.
But the spokeswoman said the school’s investigation process into these types of complaints are “consistent with federal and state regulations, as well as our values as a Jesuit institution.”
Lawlor’s complaint came within the context of a larger conversation about campus sexual assault that had been roiling for years. Procedural change, beginning in the early 2010s, was finally addressing what for many years had been a widespread problem on college campuses. Just months prior to Lawlor’s complaint, the # MeToo movement hit its peak, bringing with it increased attention to sexual violence.
Despite the changes enacted on many campuses in the last decade, confusion on the topic of sexual assault prevails.
Harris points to an influential 2011 “Dear Colleague” letter, directed by the U. S. Department of Education’s Office for Civil Rights to all federally subsidized universities, as the beginning of a new era of legislative oversight. While not legally binding, the letter challenged previously held ideas about things like consent and urged colleges to implement more stringent measures to prevent sexual assault and evaluate complaints, or else lose funding.
Prior to the letter, a 1992 law forced universities to draft and distribute policies regarding sexual assault procedures, but rarely challenged their enforcement of Title IX, a federal civil rights law passed in 1972 that prohibits discrimination on the basis of sex.
Since the 2011 letter was disseminated, the number of civil complaints filed by victims and accused students has increased. That uptick is one of many inherent flaws in the letter and other recent legislation, critics claim.
The pendulum swings
In the years following the “Dear Colleague” letter, Harris said accused students were often denied access to complaints, evidence, identities of witnesses or investigative reports. Often, alleged perpetrators were not given the opportunity to question complainants or witnesses. Many universities also employed a single- investigator approach in which a Title IX coordinator took the testimony of both students involved and then independently came to a decision.
That was not the case at Fairfield University.
Lawlor and the accused male student each gave written testimony to a Title IX investigator, then took part in an in- person hearing. Each was represented by a different school employee and both were cross- examined.
The experience was traumatizing, Lawlor said.
But, according to Harris, this type of thorough investigative procedure can best be used to find the truth in what are often difficult cases, in which each party has a conflicting account of what occurred.
Detective Kerry Dalling, domestic violence coordinator with the Fairfield Police Department, said such cases are further complicated because they often happen behind closed doors, with no witnesses.
“It’s not one- sided,” Dalling said. “It has nothing to do with believing the complainant, because of course, I believe a complainant who comes forward and tells me they were assaulted. But believing is very different than establishing probable cause for an arrest.”
The standard Dalling must apply in criminal cases is different than that on many college campuses — another frequent critique of the “Dear Colleague” letter, which established a “preponderance of the evidence” standard of proof that was widely applied.
Whereas in most criminal cases when guilt has to be proven beyond a reasonable doubt, the preponderance of evidence standard requires just greater than a 50 percent chance that charges against a student are accurate. If a hearing panel feels it’s more likely than not that an accused student is guilty, he or she can be disciplined accordingly.
Such a standard is common in civil cases, but some argue is too low for cases that, while not criminal, can have serious implications for those found at fault. Since the letter’s publication, more than 500 accused students have filed lawsuits for discrimination based on sex against their schools, a small number of whom have left court victorious.
“This was all well- intentioned, of course,” Harris said. “But what we saw is a lot of schools responded simply by eliminating procedural protections for accused students.”
One former Fairfield University student, referred to as John Doe in the lawsuit he filed in May against the school, claimed he was denied due process rights and dismissed just short of graduation after he was accused of sexual misconduct. The student reached an undisclosed settlement with the school in December.
A question of consent
Use of drugs and alcohol on college campuses, especially among freshman students, has further complicated the concept of consent, which often plays a central role in the adjudication of complaints.
In Lawlor’s case, she considered herself incapacitated and unable to consent. According to a statement from the male student she accused, who had also been drinking, she was not visibly drunk.
It’s not just college students who are confused about the topic. Professionals who work alongside students often have varying opinions, as well.
“There’s a misunderstanding about what consent means,” said Jessica Feighan, director of education, outreach and operations at Stamford’s Rowan Center: A Sexual Assault Resource Agency. “People don’t understand that when you’re under the influence, you can’t consent. And that’s tough because people often say, ‘ If you don’t want to get sexually assaulted, then you shouldn’t drink.’ Being sexually assaulted is not a consequence of drinking. It should never be.”
Harris, however, contends the definition of consent is too narrow and might lead to arbitrary, or selective, application of the law.
“If you have two people who had been drinking, how do you adjudicate that?” Harris asked. “When a law can only be applied arbitrarily, that can itself raise due process questions.”
Additionally, determining the degree to which each party was impaired in the event of a complaint, and whether it affected the person’s ability to consent, can be unscientific and exceedingly difficult, Dalling said.
“There’s no number. Everybody acts differently ( when drunk),” Dalling said. “It’s pretty popular in the college- age world for students to get blackout drunk. So it’s a very, very difficult task to try to sift through that, especially when you’ve got memories that are impaired.”
In 2016, Connecticut’s General Assembly passed an affirmative consent law, specific to college campuses, which changed the standard for sexual assault policies at schools.
The legislation defined consent as “an active, clear and voluntary agreement by a person indicating willingness to do the same thing, at the same time, in the same way to each other.” Connecticut is one of five states — along with California, Colorado, Illinois and New York — with similar laws requiring colleges to apply the more stringent standard.
The standard does not apply to criminal law, but even in Title IX cases, critics have claimed it places an undue burden to disprove guilt on accused students. Proponents say it helps to balance the scales in cases that have often favored the accused.
A response long overdue
Victims, like Lawlor, often face a daunting set of challenges. In pursuit of justice, students may be taking on powerful institutions that do not necessarily have their best interest in mind.
Former Michigan State University and U. S. gymnastics doctor Larry Nassar and former Penn State University assistant coach Jerry Sandusky each used their positions of power to sexually abuse children with impunity for more than a decade, despite their colleagues’ knowledge of their crimes.
Brock Turner, the Stanford University swimmer, was given a three- month sentence, as opposed to the maximum 14 years, after assaulting an unconscious student on campus. And NFL quarterback Jameis Winston settled a rape allegation made against him while he was a student at Florida State University without ever having been prosecuted or disciplined.
The examples abound. And, according to Feighan from the Rowan Center, in such cases, as well as others, there may be some incentive for schools to protect their own reputations or that of an accused student when a complaint is filed.
“It is common for universities, in general, to downplay accusations of sexual assault,” Feighan said. “It’s sort of a societal myth that people who come forward aren’t telling the truth. That’s not the case. People don’t tend to wake up one day and decide they’re going to lie.”
There are certain exceptions. In a rare instance, a former Sacred Heart University student, Nikki Yovino, was sentenced to up to three years in prison for falsely accusing two football players of raping her in 2017.
However, the presumption that accusations are false apparently has little basis. According to one 2010 study, co- authored by clinical psychologist David Lisak, a pioneer in the field of sexual assault research, just roughly 2 to 11 percent of reported sex crimes are false allegations. And yet, it can complicate data collection, said Camille Cooper, vice president of public policy at the Rape, Abuse and Incest National Network.
In addition to having the voracity of their claims challenged, students who make sexual assault allegations could face bullying or receive backlash from friends and family, Cooper said. The experience could affect their mental health and even make them fear for their safety. Many forgo the process altogether.
A 2015 study conducted by the Association of American Universities, states that less than 28 percent of even the most serious sex crimes are reported to an organization or agency. The low rate of reporting only fuels debates about prevalence.
One statistic often- cited by advocates and legislators states one in five women is a victim of campus sexual assault. But detractors note the 2007 survey from which the figure emerged had a sample size of just over 5,000 undergraduates at two universities and a combined response rate of roughly 42 percent. Skeptics suggested the selection bias of participants may have skewed the data.
A separate 2014 report from the Bureau of Justice Statistics, an arm of the U. S. Department of Justice, states that between 1995 and 2013, less than 1 percent of female college students were raped or sexually assaulted each year. Other estimates tend to fall somewhere in between the two.
Next steps
Whatever the quantitative reality, social mores in that period have shifted, with universities being asked to do more to contend with the problem.
Lawlor has taken up that call.
Fairfield University ruled the accused student committed non- consensual sexual contact, rather than non- consensual sexual intercourse, which Lawlor believes more accurately described the incident. The student was dismissed from the school for a threeyear period ( after which point Lawlor will have graduated), but was allowed to finish out the week between the ruling and the end of the semester.
According to Lawlor, and other students familiar with the situation, he then transferred to another school.
That single night in March 2018 left an indelible mark on Lawlor’s college experience and imbued her with a continued feeling of unease. The university, meanwhile, said in a statement that it was committed to the “safety and security of its campus and ensuring the well- being of students,” and highlighted several ways in which it is working to accomplish those goals.
And yet, whatever the school’s efforts to modernize its policies in recent years, Lawlor feels more could have been done.
Whether well- intended or acting in their own best interest, those adjudicating campus sexual assault cases find themselves in a precarious position. Failure to protect the rights of either the accused or accusing parties leaves universities legally liable. The publicity of campus sexual assault could put an institution’s reputation in jeopardy.
And no matter the finding in such a case, the experience carries with it a lifetime of consequences and potential trauma for both the accuser and the accused student.
“They’re tough cases,” said Dalling, the Fairfield detective. “It’s a big responsibility and there’s a lot at stake — these peoples’ future. We’re not talking about lifelong criminals, often we’re talking about two genuinely decent human beings. It’s a big responsibility and there’s a lot at stake. You feel bad. There’s no great feeling at the end of it. You pray to god that you’ve done the best investigation you can and you’ve made the right decision. Whichever way that goes.”