By Mary Jo Layton Bergen Record
Legislators and universities in New Jersey are changing the way rapes are dealt with on campus following two explosive incidents at local colleges and several high-profile cases that have brought national attention to the epidemic of sexual assault among students.
The allegations of rape at William Paterson University in Wayne and Ramapo College in Mahwah late last year came on the heels of incidents in New York, Florida and Virginia, scandals that prompted the federal government to push schools to be more aggressive in the handling of sexual assault cases.
But universities have struggled to investigate claims that are often difficult to prove — consent sometimes comes down to a matter of perspective, especially in young adults, and in most incidents there are no witnesses and memory is impaired by trauma, alcohol or drug use.
The task is all the more complicated by the need to preserve the rights of the accused. And increasingly, more young men are suing their schools — three have filed notice of intent to sue William Paterson — saying their lives have forever been altered by accusations that are unfounded and cases that were mishandled.
The proposed reforms seek nothing less than a cultural change — and it’s roiling campuses and statehouses.
Lawmakers in New Jersey and other states are trying to legislate the very nature of consent and take rape investigations out of the hands of campus police, putting outside law enforcement in charge. Students are marching at more than 100 universities in solidarity with rape victims. Administrators at Ramapo and other schools are banning boozy gatherings in the hopes of preventing the kind of activities that lead to trouble. Ten states are even considering permitting students to carry guns to prevent rape.
“There’s definitely been a big change,” said Scott Berkowitz, president of the Rape, Abuse and Incest National Network, a victim advocacy group. “There’s a lot more awareness on the part of students about the risks they face. There’s a lot more focus by college administrators on implementing prevention and on making sure how cases are adjudicated meets the expectation of all parties.”
Review of policies
Fearful of finding themselves in the middle of the next national scandal, several universities are hiring consultants to review their policies, mindful that missteps can result in litigation or federal fines.
Fairleigh Dickinson University is changing its internal judicial process: Two retired law enforcement officers will now investigate and report findings to a specially trained dean, rather than a panel that had included students. Ramapo hired a former state attorney general to review its policies following the alleged rape of an intoxicated freshman, which led to the arrest of five students in November.
Meanwhile, Princeton University has promised to respond to complaints of sexual abuse and harassment on campus in a more timely and thorough way, according to an agreement the school reached with the federal government last fall.
More changes are needed, said state Sen. Peter J. Barnes, D-Middlesex. He is sponsoring a package of bills to ensure better investigations. “We can look at Princeton University, we can look at William Paterson and the conclusion is clear: New Jersey has not done a good job of handling sexual assault allegations on campus,” he said.
One bill would require colleges and universities to report incidents to local law enforcement, including prosecutor’s offices, which typically have sex crimes units. “Campus security or police are not equipped or trained to handle sex crimes investigations,” Barnes said. “Leave that to the people and experts who are trained for this.”
Public and private colleges in New Jersey reported 91 sexual assaults in 2013, according to federal data. But experts and students suspect there are far more.
How allegations are handled varies by campus. At Montclair State University, nurses who are part of the school’s Sexual Assault Response Team conduct forensic exams and work with trained officers, a program that campus Police Chief Paul M. Cell helped create and lectures about nationally.
At Rutgers University, campus police inform the Middlesex County Prosecutor’s Office, which takes the lead in the investigation. In Bergen County, allegations of sexual assault must be immediately reported to the Prosecutor’s Office.
Others forge ahead on their own — using campus security to investigate cases that would be prosecuted as felonies if tried in criminal court and likely result in a prison sentence for those found guilty.
Campus police undergo training to handle sexual assault claims, but expertise varies. Few have the experience — or the case volume — of a dedicated sex crimes unit in a prosecutor’s office.
Missteps last year in the campus police department at William Paterson resulted in police releasing a report about an alleged gang rape without first redacting the victim’s name. Three of the young men accused in the case have filed a notice of their plans to sue the university, contending that campus police botched the investigation in many other ways. They were charged with first-degree sexual assault and spent several nights in the Passaic County Jail. They were cleared in January when a grand jury declined to indict.
Complaints of sexual assault are also handled by school disciplinary panels, which are also facing much greater scrutiny following many high-profile missteps.
Alleged victims — as well as the accused — argue that disciplinary panel members aren’t properly trained to undertake sensitive investigations involving allegations of serious crimes. For instance, at Hobart and William Smith College in upstate New York last year, a panel exonerated three football players accused of assaulting a freshman before the medical evidence from the victim had been reviewed.
“You have investigators and deans who are reviewing complex factual events and sitting in judgment of things that are highly nuanced and for which they are not trained to do,” said Andrew T. Miltenberg, an attorney who has filed lawsuits on behalf of students accused of assault who say their cases were mishandled.
Rose D’Ambrosio, associate vice president for human resources at Fairleigh Dickinson, acknowledges the difficulties faced by disciplinary panels. “We, in addition to police, have to do our own internal investigation,” she said. “We are not equipped necessarily with the expertise that law enforcement has, but we do provide training to our panel. There’s definitely a burden placed on administrators now to be brought up to speed on sexual assault investigations.”
Options for victims
Still, the legislative effort to require that outside law enforcement be called in immediately — also proposed in Rhode Island, New York and Virginia — is meeting opposition from the victims the reforms are meant to protect. A victim still has a right to refuse to file a criminal complaint under the pending laws, but advocates say even the initial involvement with police can be too much.
“When a survivor has been sexually assaulted, much of her power and decision making has been taken away,” said Sarah McMahon, associate director of the Center on Violence Against Women and Children at Rutgers. “One of the most important things we can give them is control over how their case moves forward and what options are best for them.”
And there’s no guarantee outside experts will do a better job, advocates say. “We know a bit about police — they do a lot of victim blaming,” said John Foubert, national president of One in Four, a sexual assault prevention group and a professor at Oklahoma State University. In cases that involve alcohol, some prosecutors and district attorneys won’t prosecute because it’s not winnable, Foubert said.
“It’s not a panacea to go off campus,” he said.
Trauma in reporting
A 31-year-old Monmouth County woman, raped a decade ago at a college in North Carolina, said efforts should focus on better training for first responders.
After the attack, she said, she went to a college clinic and the doctor dismissed her. “I blurted out I was raped,’’ said the woman, who spoke on condition of anonymity. “She looked me up and down. She made me feel like a germ. I just shut down.” She never filed charges.
In fact, many victims decide not to report. Of 10 allegations of sexual assault reported at Fairleigh Dickinson in 2012, none of the victims opted to pursue a case, D’Ambrosio said. “It could be peer pressure, not wanting word to get out,” she said. “They may not be strong enough to deal with what’s occurred. We can encourage them to go to police, but we cannot force them.”
The federal government has been pressuring universities to take sexual assaults more seriously since 2011, when the Department of Education sent a letter saying that under Title IX — designed to prevent sex discrimination at schools — schools could face fines and sanctions if they didn’t comply. The letter clarified the standard to be used in deciding cases — previously panels had to determine it was “highly probable” that an assault had occurred before it could sanction a student. Now, a lesser standard applies — preponderance of the evidence, which means it’s more likely than not that a rape occurred.
Last year, the Obama administration appointed a task force to recommend how to prevent and respond to sexual assaults on campus. It sparked congressional hearings and placed the issue of college rape in the national spotlight.
As a result of the growing awareness, more schools are expelling students for sexual misconduct, a far cry from prior years when deans thought Title IX referred only to sex discrimination in sports, said Colby Bruno, a lawyer at the Victim Rights Center in Boston who has represented victims of campus sex assault.
“We’ve made progress,” Bruno said.
But some law professors and other experts see a more aggressive process that risks violating the rights of the accused. Indeed, in this charged atmosphere, an article in Rolling Stone magazine in December about an alleged gang rape at the University of Virginia led school officials to suspend all fraternities, provoked death threats against some male students and incited marches on campus. The story was later deemed to be not credible.
“Some of the best advice parents can give their children, especially their sons, is to warn of the dangers and perils of a one-night hookup with someone, where you can very easily be accused of a sexual assault when the one night is over,” said Raymond Flood, a former assistant Bergen County prosecutor and longtime defense attorney.
He said, she said
In the lawsuits filed against Drew University, the University of Colorado, Vassar College and Columbia University, the narrative is similar: A couple has sex, alcohol is typically involved, and there’s a dramatically different account of what transpired, leaving police or discipline panels to sort out private acts between two people.
Kevin Parisi, 21, a former student at Drew, said he was promised a quick resolution after a woman accused him of rape in 2013. He was banned from campus except for classes, the case dragged on for nearly three months and a key witness — a woman who was told by the alleged victim that the sex was consensual — was never interviewed by the panel, he said.
“The school handled it so miserably,” said Parisi, a resident of Hunterdon County, who maintains the sexual encounter was consensual and the alleged victim refused to cooperate with Madison police.
“When you’re accused, the school policies don’t help the males,” he added.
No charges were filed. Nearly three months after the allegation and a day before the semester ended, Parisi learned he had been cleared by the university. A month later, the Madison police said they found no wrongdoing.
“There was no due process,” he said.
“It’s pretty horrifying to think of going back to school,” said Parisi, who has not resumed his studies and has filed a federal lawsuit against the university. “It’s a hostile environment.”
A university spokeswoman said Drew has filed a motion to dismiss the suit. “We are confident that the university behaved lawfully and appropriately,” the spokeswoman, Elizabeth Moore, said.
Alleged victims too, are fighting back, in many instances taking their accounts public or filing federal complaints.
Emma Sulkowicz, a senior at Columbia, has argued her case was badly mishandled by the school disciplinary panel after she reported in 2013 of being raped in her dorm months before. The visual-arts major has carried a mattress around campus — in what is now her senior thesis “Carry That Weight” — calling for sexual assault policy reform. Students at Rutgers and dozens of other universities have launched protests and carried mattresses in solidarity.
Sulkowicz was one of 23 students who filed a federal complaint against Columbia last year for mishandling sexual assault cases under Title IX. Officials at the federal Department of Education declined to discuss individual cases, but the department’s Office of Civil Rights is investigating 102 sexual violence cases at 97 colleges and universities and Columbia is on the list, a government spokesman said. (No New Jersey colleges appear on that list.)
According to news accounts of the Sulkowicz case, the tone of the disciplinary panel was inappropriate — one member asked her repeatedly during the investigation how a painful sex act was physically possible. In addition, her alleged attacker had been accused of sexual misconduct previously, and that case was reopened by the discipline panel so it couldn’t be used as evidence in her case, her parents, Sandra Leong and Kerry J. Sulkowicz, wrote in a letter published in the university newspaper in October.
“It’s hard to see the conduct of the investigation of our daughter’s complaint and the subsequent hearing as anything but a circus,” they wrote.
The investigation took seven months — and the student she alleged attacked her remains on campus.
The accused student went public, most recently last month in the Daily Beast in which he said the sex was consensual. The story included emails he said revealed cordial contact after the incident.
Columbia officials declined comment, citing the pending litigation. The university opened a second rape crisis center last year and more than doubled the professional staff there.
Focus on prevention
Other universities also have found themselves in the national spotlight over alleged incidents. A student at Florida State University filed suit against the school after police and a discipline panel failed to take action against Jameis Winston, now a top NFL prospect, whom she accused of a sexual assault in 2012.
Campuses and even some legislators are taking another tack to better protect students — preventing sexual assault in the first place.
New Jersey, California and several other states are wading into the nuanced world of intimacy and proposing that colleges adopt codes making it clear that students say what activity they wish to engage in. The “affirmative consent standard” would make any sexual encounter a potential crime if it’s not preceded by a verbal agreement.
“We’re trying to change the culture and the mentality of young men and women,” said Assemblywoman Valerie Vainieri Huttle, D-Englewood, a prime sponsor of the bill and others to prevent assaults.
“Currently, no means no,” she said. “But if you’re silent, if you’re drugged or intoxicated or there’s a non-verbal miscommunication, this helps clarify the definition of sexual assault.”
Student groups are holding seminars to educate men and women on how to talk about consent — some schools call them “Enthusiastic Consent Workshops.” There’s even an App — parents are cringing at the name Good2Go — which is intended to put the brakes on hookups long enough to clarify intentions.
“Not getting a ‘no’ from your partner is not getting a ‘yes,’Ÿ” said Sarah Stern, 21, who helps plan seminars sponsored by the Rutgers group We Organize Against Harassment.
“It’s hard for some people to grasp that idea,” she said. “In movies you never see people ask if they want to keep going. It just happens. In reality, we have different perspectives and it’s difficult to communicate, but it’s necessary.”