Miami University is under investigation by the U.S. Department of Education for how it handled an accusation of rape by one student against another.
The investigation is looking into a University process that took nine months to review the student’s sexual assault claim when such reviews are supposed to take about 60 days. Also, the investigation is looking into whether other students were left at risk by the outcome of the case. A university board ruled that the male student involved had violated school policies but an administrator allowed him to stay on campus for a month after he appealed, enabling him to complete his courses.
Most investigations by colleges and universities into accusations of sexual assault are shrouded in secrecy; records from those investigations are often withheld and the public cannot typically see them. This newspaper interviewed both parties to this case, however, and received copies of hundreds of documents in an attempt to shed light on the complexity of these investigations, the process some students have to go by if they feel they are the victim of sexual assault, and whether these kinds of systems do enough to help make campuses safe.
This case has led to no criminal charges and both the male and female students say the experience left them feeling betrayed and angry.
“Every stage of the reporting process has been adversarial, painful and re-traumatizing,” the female Miami University student wrote in a complaint to the U.S. Department of Education, “whether it was a detective telling me I could be arrested, the nine-month long reporting process, and the final outcome which resulted in my assaulter being allowed to finish his second semester as a senior.”
The event occurred in May 2015 and the investigation into it has involved a police inquiry, two reviews by separate Miami boards, and now a review by the U.S. Department of Education. The male student has denied that any rape took place and says the sexual encounter between he and the female student was consensual.
“They just kept allowing the other party to appeal until she found someone willing to rule the other way,” he said in an interview. “I think overall that if it’s something this serious and it’s a criminal situation, then it shouldn’t be handled by a university, it should be handled by the legal system.”
This newspaper has agreed not to name either student in accordance with its policy of not identifying victims of possible sexual assault.
The U.S. Department of Education investigation of Miami University falls under a federal law known as Title IX. That law requires schools to prevent students from being discriminated against because of their gender. Reviews of how schools have handled sexual violence allegations have increasingly fallen under this law.
The review is one of three Title IX investigations pending at Miami; only Ohio State University has as many. There are 19 investigations open at 10 colleges and universities in Ohio. The U.S. Department of Education is now reviewing how it enforces Title IX. U.S. Department of Education Secretary Betsy DeVos says she wants the processes to be fairer, but critics say they fear the review could reduce protections for assault survivors.
The university wouldn’t comment on specifics of this case, but issued a statement defending their process.
“Miami’s progress in addressing the nationwide issues of sexual assault and interpersonal violence on our campuses has been significant and meaningful, though like other universities, we continually strive to improve,” wrote university spokeswoman Claire Wagner.
“Our disciplinary process is designed to provide a full investigation, seeks to protect the rights of both the accuser and the accused and hold accountable those who are found responsible.”
Miami University has changed its processes, however. Earlier this year it streamlined where students can report accusations of sexual assault, and made one board responsible for all student disciplinary investigations. Wagner said the changes were not due to any specific case.
Were it to be found guilty of violating Title IX, the university could be forced to negotiate a resolution agreement with Department of Education or risk losing federal funding.
The Department of Education has stated that colleges should typically take 60 days from when they receive a sexual assault claim through hearings to the point where the school takes action in a way that ensures student safety. Appeals can prolong the process further, but Saundra Schuster, a co-founder and advisory board member of the national Association of Title IX Administrators, said appeals are typically resolved in an additional 10 days.
“Something should never be able to go for nine months,” she said.
And she said the university’s decision to let the male student accused in this case finish his last semester doesn’t comply with Title IX’s goals of keeping campuses safe.
“If they found him responsible, they feel this guy poses a risk of threat or harm… yet they let him hang around on campus,” she said. “They either think he did something wrong and poses a risk of harm or they don’t.”
The alleged assault took place the night of May 9, 2015.
The two worked together at an off-campus business. She invited him and others to a party and was drinking heavily: rum, vodka, tequila and “jello shots,” according to her statement to police. Her friends would later tell police she was stumbling.
Her friends also told police they did not see the male student in this incident drink anything, but he told investigators later he was just as drunk as she was.
They left together and went to his dorm. She said she thought they were going to watch a movie. She wrote to police that she was tired and sluggish from alcohol, and that they kissed and eventually he was on top of her.
“I remember being confused as I realized this and telling him ‘wait’ and ‘no’ and I remember crying out in pain while it was happening,” she wrote in the police report.
He offered a different account, saying they kissed and began “hooking up” for maybe half an hour.
“We began to have sex. It lasted for roughly 10-15 seconds. She told me to stop, then I stopped,” he wrote in his statement to police. “After that, I remember saying that I was sorry, then waking up to her being gone.”
The male student said in an interview with the newspaper “I didn’t ask out loud and have her say yes. I don’t think anybody does that. It was a really long slow process.”
In her newspaper interview, the female student said she confronted her alleged attacker about the incident the following July. His tone was initially apologetic but became defiant, she said.
“He told me I could report it if I wanted to, but nobody was going to believe me and that he was going to win,” she said. “And I took that as sort of a challenge. After hearing him talk like that I realized he really did mean what he did and it wasn’t, like, unintentional.”
In his interview, the male student adamantly disputes the allegation that he assaulted her: “Her version of events makes it sound like something that it’s not,” he said.
The female student reported the incident to Miami University police in July. She said she went to police after going to group therapy and speaking to her parents.
Experts say it’s not uncommon for there to be a delay in reporting these cases as survivors muster courage, and psychological and emotional energy, to begin the law enforcement process.
“Two months is not unusual at all,” said Schuster.
“I was like I don’t want to be one of the people who doesn’t report,” the female student told this newspaper. “I just knew that I didn’t want to be the statistic.”
She says that after filling out her statement, a male detective who was pulling text messages off her phone to use as evidence warned her that she could face a counter-claim because her alleged assailant also says he was too drunk to consent.
“That just absolutely crushed me,” she said. “I just finished telling the whole story about what happened to me and how traumatic it was and I felt re-traumatized even just by sharing that story.”
Miami University police obtained text messages and statements from both students, and then handed the case to the Butler County Prosecutor’s Office. On Aug. 6 2015, the prosecutor’s office declined to take the case to grand jury.
“Based on the written statement alone of the victim, there is not enough to press charges criminally on the suspect,” police records quote assistant county prosecutor Mike Hon as saying.
Speaking for the office, Butler County Prosecutor Michael Gmoser wouldn’t comment on this specific case. But he said campus “date rape” cases are hard to prosecute because they often lack physical evidence beyond differing testimonies and involve students who knew each other before the incident and became willfully intoxicated.
“Grand juries take into consideration those circumstances, whether it’s justified or not,” he said.
Nadia Dawisha, a community organizer and volunteer victim’s advocate who worked with the female student, was disappointed in the criminal investigation.
“They just basically took her statement, took his statement, took the text messages and called it a day,” she said. “It really drives me crazy when people call these cases ‘he-said, she-said.’ There are so many ways they could be investigating and finding evidence to support either side, and they just don’t.”
Criminal cases must be proven beyond a reasonable doubt in court. Title IX calls for schools to have a process with a different standard: whether “reasonable cause exists” to believe a student violated university policy against sexual assault. That is why even though no criminal charges were filed, the university still was responsible for looking into the incident.
At Miami, that student code defines sexual assault as “any sexual act directed against another person, without their consent, including instances where the person is incapable of giving consent.”
“Conduct will be considered ‘non-consensual’ if no clear consent, verbal or non-verbal, is given. The absence of ‘no’ does not mean ‘yes’,” the policy states.
The female student filed a complaint with the university five days after going to police.
She was steered, she says, to the Miami University Office of Equity and Equal Opportunity (OEEO), an office that investigates discrimination and harassment. She says she was told that if she filed her case there she would not have to confront the male student at a hearing; she said she preferred that option. But she says it wasn’t made clear to her that the office does not handle student discipline but typically handles employee matters.
Student disciplinary matters are handled by Miami’s Office of Ethics and Student Conflict Resolution (OESCR). A complaint to that office, however, typically involves a hearing in which both the accused and accuser are present.
The OEEO staff reviewed the evidence and interviewed the police and ruled in September 2015 that no violation of the university’s harassment and discrimination policies had occurred. The female student appealed the decision, and an OEEO panel upheld the decision in February 2016.
Then the student filed her complaint with the Miami’s Office of Ethics and Student Conflict Resolution. That office handled the complaint within Title IX’s 60-day goal. But by then nearly seven months had passed since the university’s process began.
The two students confronted each other Feb. 25, 2016 during a six-hour hearing where they also answered questions from a panel of faculty and staff.
The proceedings focused on whether the male student had violated the university’s student code of conduct, which dictates that a student cannot consent to sexual activity if he or she is “substantially impaired.”
In audio recordings of the hearing that are part of the Title IX complaint, the male student says they were both drunk that night.
“It was not a taking advantage of someone,” he says in the recording, which the newspaper obtained from the female student. “It was not anything like that. It was consensual as far as everything we were doing up until then, and then she said ‘stop’ and I did when she told me to.”
“Was (she) impaired that night?” a member of the panel asked.
“Drunk? Yes,” he responded
“In the student code of conduct it says that an individual cannot consent who is substantially impaired,” the unidentified panel member says. “I’m trying to ask you about whether or not you feel that (she) was able to consent to sexual relations.”
“Under that definition I guess not,” he responded, then continued after a pause: “Does it work both ways, if we’re both heavily under the influence of alcohol, or is it just the girl who has to give consent?”
It comes down to who was the aggressor, a member of the panel responded — who initiated sexual contact. The student then maintained it was mutual.
A minute later, the female student asked him a question.
“I believe in the file you were quoted as saying that … when we left together you held my hand and you kissed me, is that true?” she asked.
“Yes,” he answered.
“So was that the initiating activity?”
“I suppose, yes,” he said.
The OESCR board ruled on Feb. 26, 2016, that the male student violated the university’s sexual misconduct policy and ordered him suspended immediately.
He appealed, which meant he could continue attending classes. He was in his last semester and was on track to graduate in May, 2016.
In April 2016, a panel of faculty and students upheld the finding against him, but he appealed again, this time to Vice President of Student Affairs Jayne Brownell. Brownell ruled on April 20 the male student could finish the semester on campus but that a two-year suspension would then go into effect. That suspension is in effect until May 2018, when the female student is scheduled to graduate.
Though the male student has finished his course work, he’s unable to obtain his diploma and is considered by the school as not having earned his degree yet. Prospective employers checking with the university would be told that he has not yet graduated.
Before filing her Title IX complaint, the Miami University student tried one last time to get university police to pursue prosecution.
She gave them the names of three witnesses she wanted interviewed and the recording of the male student’s statements at the OESCR hearing.
Police records obtained by the newspaper included written statements the witnesses gave police. The case, however, was closed a second time, according to the police case file and the woman’s Title IX complaint.
One of the witnesses writing in support of the Miami female student’s complaint said her friend’s experience with the university led the witness to delay reporting a sexual assault that she suffered.
“I had serious concerns regarding reporting due to seeing how the university handled my friend’s case,” she said in a letter to the Office for Civil Rights.
Interviewed on Miami’s Oxford campus this summer, the female student in the case said she pursued her situation as far as she did because she felt other survivors of sexual assault may have given up because they did not have the strength and support she has.
“I was ultimately placed in the wrong office for seven months, which greatly impacted my emotional and mental health,” she said in her Title IX complaint.
“Because of this school, I’ll probably be in counseling for the rest of my college career.”
As for the male student, he said he doesn’t intend to sue over the school’s suspension of him.
“I want it to be over,” he said
Since July 1, 2017, students at Miami no longer are given the option of picking between two offices with which to file their complaints. All student discipline cases now must go to the university’s Office of Ethics and Student Conflict Resolution, according to Miami University’s spokeswoman Claire Wagner.
“Before the July 1 change, students were free to use either or both investigatory processes in OEEO and OESCR,” Wagner wrote. “Even if a student began the OEEO process, the student was free to start the OESCR process at any time without waiting for the OEEO process to conclude. Miami’s sexual assault response coordinator explains and reviews these options along with the many facets of support she provides.”
Schuster, the Title IX expert, said having two different offices with different standards made it appear the university fell short of Title IX’s requirements that schools respond to assaults with processes that are prompt, equitable and easy to understand.
“To put both parties through multiple structures is ridiculous and unacceptable,” she said. “I can understand why both parties are unhappy.”