Students Are Concerned About Case Western Reserve University's Handling of Sexual Misconduct Investigations

A Letter to the Administration

“Last April John Doe sexually assaulted and physically attacked me,” fourth year CWRU undergraduate Emma Bardwell wrote in an open letter, published today by the Observer. “The night ended with his hands around my neck, and the feeling of my fragile pulse fluttering under his grip. After that night I lost who I used to be. I woke up with bruises all over my body, and an emptiness in my chest.”

In a letter to the Case Western Reserve University administration, Bardwell describes the shortcomings of their sexual misconduct policies following the report of her assault.

“Change your sexual misconduct policy… and start caring about us.”

After a CWRU investigation, John Doe was found responsible for intimate partner violence and non-consensual sexual intercourse. His sanction was a one-year separation from the university. Doe appealed the decision through the university. Following his denial, Doe sought out legal intervention.

“The case in front of you was about what he did to me, yet you were willing to compromise with him and decrease his Title IX sanction in order to save face for your university,” Bardwell wrote. “I asked you to stand with me, but you did not.”

In situations like these, the Office for Civil Rights (OCR) has published guidelines requiring schools to use a “preponderance of the evidence standard.” Based on this standard, guilt is not based on how certain the evidence is, but rather if an event was more likely than not to have occurred.

In Doe’s lawsuit against CWRU, a case was built upon their inconsistencies in enforcement and processes of its policy. His attorney notes in court documents that CWRU displayed inconsistencies in its own sexual misconduct policies. At one point he was not informed of new evidence prior to his hearing. CWRU policy also states that during the trial, parties are allowed to question each other through notecards passed through the investigator. In John Doe’s investigation, the investigator would not ask his questions. Less than month from the initial filing date, CWRU and John Doe reached a settlement which includes a decrease in the university sanctions.

“I used to be afraid, and sometimes I still am,” Bardwell wrote. “But everyday I fight, and I should expect nothing less of the institution I have called home for the past four years. We are worth fighting for, so step up to the plate.”

Students Speak Out

Hayley Yocum is third year at Case. She was the second speaker of the night in April at Take Back the Night, a yearly event for people to share their experiences with sexual violence. She walked up to the center of the polished floors, wearing a plain white skirt and a black top with matching stockings. In the Thwing Center Atrium, a blue neon lighting, chosen for this event, cast onto the audience’s somber faces.

“I was raped by my boyfriend.”

Yocum paused between every phrase. Her voice quivered as she relieved the pain.

“Before you ask me what I was wearing,” Yocum said. “I will tell you that it was this skirt the first time I was raped.”

Her audience included friends and family as well as other students that were victims of sexual assault. In spite of their suffering, Yocum and others referred to themselves as survivors, fighting against a broken system.

“We go to a university that has a sexual misconduct policy that clearly outlines that you can be suspended or expelled for false reporting, but hides the possibility of being suspended or expelled for raping someone amongst 13 other punishments, including an apology essay.”

Yocum is now a hotline volunteer for the Cleveland Rape Crisis Center—a position where she supports others struggling in the aftermath of sexual assault. According to the American Association of Universities, during an undergraduate education at CWRU, 1 in 5 female students are sexually assaulted.

Yocum explains it as a cultural problem. It is a complex issue, but she wonders what could be done to improve the systems. Despite the resources offered by her university, only 1 in 6 students at CWRU know the sexual assault policy. Her best friend was also sexually assaulted; she was among those that didn't know the policy.

Regardless of student knowledge of the policy, when the university learns of sexual misconduct, an inquiry is launched from the Office of Title IX. During that process, every effort is made to distinguish CWRU actions from that of the criminal system, explaining to students that they also can file a police report. Unlike the criminal system, CWRU sexual misconduct investigations have no victim and no perpetrator; instead they are referred to only as the complainants and respondents. At the end of a misconduct hearing, there is no verdict of guilty or innocent—instead the "complainant" is found to have been violated or not to have been violated. Both complainants and respondents alike have criticized the university methods for misconduct investigations, describing it as unfair and inconsistent across gender and magnitude.

In the last four years, CWRU has been involved in several lawsuits by former and current students that have claimed that its sexual misconduct policy is inconsistent and discriminatory. While the cases do show a lack of adherence to policy, Ohio courts have expressed restraint in intervening in internal investigations of private institutions. At the federal level, the Office for Civil Rights has taken the opposite approach, establishing a set of specific policies universities must enact.

“Dear Colleague…”

It was 2011 when the Office for Civil Rights (OCR) released its “Dear Colleague” letter in which sexual violence was defined as a form of gender-based educational deprivation. The letter surprised universities and colleges, and compelled schools to take vigilant stances against all forms of sexual misconduct.

“Dear Colleague:” the letter reads. “The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime… This letter begins with a discussion of Title IX’s requirements related to student-on-student sexual harassment, including sexual violence, and explains schools’ responsibility to take immediate and effective steps to end sexual harassment and sexual violence.”

The main authority from the Dear Colleague letter stems from reinterpretations of Title IX of the Education Amendments of 1972 (“Title IX”) by the Obama administration. Title IX states, “No person in the United States shall, on the basis of sex...be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Initially, this was mainly applied to collegiate sports. But over time, victims of sexual assault would use it in legal arguments against university inaction.

Title IX required universities to establish stronger protections of education as a place free of gender discrimination. The “Dear Colleague” letter formalized those requirements and expectations into specific policies on how universities must handle sexual assault. What took many schools by surprise was that it stated that noncompliant schools face would lose federal funding. Even smaller schools like CWRU receive federal funding on the order of millions of dollars per year. This was an immediate call to action.

The OCR would later published additional guidelines on Title IX, clarifying many facets of the 2011 Dear Colleague letter. This document included procedures, interim actions and outcomes of sexual misconduct investigations—all enforced by the threat of loss of federal funding. They continued to expand the scope of Title IX to encompass rights of transgender students. This was a historic but controversial change, based on a more flexible definition of gender.

“All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX,” the OCR wrote. “A recipient generally must treat transgender students consistent with their gender identity.”

By now, universities like CWRU have firmly embedded the OCR guidelines into their policies. The impact of this policy change has resulted in a higher focus on preventing sexual misconduct on universities and college campuses to the effect of sexual safety improvements across a variety of metrics.

An Imperfect System

The Dear Colleague letter has held universities to the fire, keeping them accountable to a standard of sexual safety and inclusiveness more stringent than at any other time in US history. CWRU quickly adapted the guidelines, but its haste resulted in a rapid upheaval and implementation of new policies that many staff were not aware of. A separate lawsuit earlier this year describes the effects that this tumultuous time had on students. The suit against CWRU describes an investigation from 2013 where a student was not informed of his rights or available support services.

“[I am] having troubling verbalizing things lately. I was told I have a depression based aphasia,” the student told the CWRU Title IX investigator. “I have an impairment in the speaking portion of the brain.”

Despite his apparent disability, he was questioned without the assistance or accommodations provided by disability services. Many of the policies for handling sexual misconduct were ignored. This resulted in the student having limited access to evidence and witness testimonies. The university did not inform him of the allegations until he had been brought in for questioning.
Since then, CWRU updated their sexual misconduct policy significantly. The latest Association of American Universities (AAU) report shows a rate of female sexual assaults slightly below national averages and a rate of male sexual assaults slightly higher than national averages. While Title IX has been a milestone in campus safety, many have criticized those OCR guidelines as violations of the right to due process. One of the main reasons for these concerns is the lowered threshold of proof, a preponderance of evidence standard, now used in sexual misconduct investigations. In raising the standards for schools to take action against sexual misconduct, the OCR consequently lowered the threshold required to be found responsible for a sexual assault.

The OCR expects these investigations to conclude two months from their start. CWRU has incorporated this timeframe it into its own policies, but this has resulted in expedited investigations that hamper due process. In the past, complainants and respondents at CWRU have both noted failures of the Office of Title IX to inform them of new evidence and new violations in investigations. As a private university, courts do not consider the constitutional right to due processes applicable to CWRU. While university investigations are distinct from criminal investigations, they do have lasting impacts on all parties involved.

A University Increases Its Educational Capacity

Yocum as well as other students note that while CWRU is doing well in some regards, there still are areas that need improvement.

“CWRU sexual misconduct policy outlines eight types of sanctions for policy violations, ranging from apologies and warnings to expulsion.” Yocum explained. “While there is a range of sanctions for sexual misconduct and assault, the only mentioned punishments for false allegations are suspension or termination.”

To those victimized by a sexual assault, fear of being labeled a false reporter can be enough to dissuade them from action. Yocum explains that false reporting of sexual assault occurs at rates near that of grand theft auto.
According to the university, sexual misconduct investigations have improved in recent years, explaining that CWRU has “expanded its education efforts involving sexual misconduct, enhanced training for those who sit on hearing panels and increased resources available to those involved in the reporting, investigation and adjudication process.”

While CWRU policies are ultimately determined by its administration, the threat of losing federal funding adheres them in effect to federal guidelines. Since the start of the Trump administration, the scope of Title IX has started to weaken. On February 22, the OCR withdrew and rescinded prior published guidelines defining Title IX protection of transgendered students—prompting many to wonder about the full list of changes planned out by the Trump administration and its ultimate goal. Despite these rollbacks, CWRU staff has been committed to retaining student protections.

Department Coordinator of the LGBT Center, AmariYah Israel said “We are going to proceed with what we believe is correct and what is in our values.”

Someone in the US is sexually assaulted or raped every 98 seconds. If you or someone you know is a victim of sexual assault, the Cleveland Rape Crisis Center has a 24-Hour Crisis and Support Hotline at (216) 619-6192 or (440) 423-2020.