No Easy Answers: Investigating Sexual Assault on Campus

All student names have been changed to protect their privacy. Mark was out bar hopping when he got a message from his friend Taylor. He texted back and invited her to join him downtown, but she wasn’t in Columbus yet. Taylor asked if he was free to smoke that night instead when she got back. Mark, already having been to a few bars, flirted back, calling Taylor “babe” by text message. The two met up, got gasoline and a bottle of water, and then found a spot in an abandoned parking lot to light up. At this point, Taylor says, Mark got handsy. She says he groped her inner thigh and crotch while reaching over the center console. He tried to touch and kiss her, and she says she continuously told him to knock it off because she knew he had a girlfriend. It started raining, and they returned to Taylor’s room. Taylor found some towels, told Mark that he should probably go after he had dried off, and then went to the bathroom. When she came out, Mark had taken the lofted bed down because he thought she might be too high to get to it safely. At this point, Taylor says she had a “brown out” from the marijuana. She says she only remembers brief feelings and impressions of what happened next. In the morning, Taylor woke up naked and with pain in her pelvic region. Vaguely, she remembered feeling Mark on top of her during the night. She felt confused, in pain and uncomfortable. She saw that while still under the influence the night before she had realized her smoking paraphernalia was still in Mark’s car, and she had texted him to come bring it to her the next day. She messaged him again later that morning to set up a specific time. But sometime before that meeting, Taylor also texted her friend Lisa. She said she thought she had been raped. Lisa frantically texted Taylor for a few hours while Taylor told her boss what she thought had happened, then the two girls went to see a counselor on campus. Afterward, they went to a local hospital to have Taylor examined for signs of rape and trauma. According to medical records obtained by the Saber with Taylor’s consent, she had gone to the emergency room with a complaint of “dysuria, pelvic pain,” or “painful or difficult urination,” as well as pain in her pelvis and genital area. Then Taylor reported her experience to CSU. While The Saber was not able to talk to him directly, Mark’s official statements, quoted from copies of the investigative report that the Saber received from Taylor directly, contradict Taylor’s almost to the letter. He says that he brought up the idea of them having sex, that she told him she was interested, and that she invited him to her dorm “for privacy.” He says they both took off their wet clothes together, had consensual sex without a condom (he said he asked her if it was okay, and she told him she was on birth control) for about fifteen minutes, then talked and cuddled for a few more minutes before he left to go home. He says Taylor was perhaps a bit more “giggly,” but certainly not unconscious or incapacitated at any point.

When a sexual assault is reported on a college campus, a Title IX investigation begins alongside a police investigation. University staff and police have 60 days to come to a conclusion, then decide whether or not to pursue university sanctions as well as legal charges. It immediately became clear that, like most assault cases, there was not going to be an easy answer. For one thing, there was a lack of physical evidence. Taylor had taken a bath before being examined for a rape kit, and had not gone to the hospital until almost half a day had passed. Taylor, her friend Lisa, and Taylor’s roommate Claire all gave testimony to UPD and CSU’s Title IX investigators. Taylor and Mark both gave their perspectives of the night in questions, with vast differences in their view of the events following when they started smoking. These differences in testimony made making sense of the night difficult for investigators At CSU, all cases that are reported are investigated by UPD and the Office of the Title IX Coordinator. However, without substantial physical evidence in either direction, Title IX investigations can quickly become cases of “he said/she said,” leading to an investigation based upon a preponderance of evidence (usually characterized as “fifty-percent sure plus a feather”) rather than clear-cut facts. The main issue at hand is consent. “Nonconsensual sexual contact” is defined as ‘An intentional sexual touching upon a person, without consent or where the person is incapacitated, and/or by force, by another person or with any object...’” by the CSU Student Handbook. So then, what is incapacitation? Again defined by the handbook, it is “The physical and/or mental inability to make informed, rational judgments, which can result from mental disability, sleep, involuntary physical restraint, or from intentional or unintentional taking of alcohol and/or other drugs.” While Taylor says she was too high to make rational decisions (to the point of amnesia, she claims), Mark believed both of them to be sober enough to consent, shown in written statements given to the Title IX investigator. “I asked Taylor if she was still interested in having sexual intercourse with me as [she] had expressed interest to do so in the past,” said Mark in written testimony submitted to the Title IX investigation. With the information from Taylor’s testimony, Mark’s testimony, and a series of texts and interviews of witnesses provided by both the complainant and respondent (Taylor and Mark respectively), CSU could not come to a conclusion as to what exactly had happened. In the report given in hard copy to Taylor, CSU stated that “The statements by both the complainant and the respondent are very similar until they get to the actual ‘meeting up,’ their relocating to the parking lot where they went to ‘smoke,’ their perceptions of how this encounter transpired, and then the events that occurred once they had returned to her dorm room until he left her dorm room at approximately 2:00-2:15 a.m. Unfortunately, with no physical evidence or eye-witness accounts that substantiate one story or the other, investigators are unable to conclude that this was not a consensual encounter.”

As a result of the lack of concrete evidence found throughout the investigative process, even with a standard of the preponderance of evidence, no other actions could be taken that would deliver a conclusive end to the incident. The lack of a resolution ended in two ways for the students involved. For Mark, he was found not responsible and no sanctions were proposed or discussed to address his conduct, due to CSU not finding him to have violated sexual misconduct policies. Yet, for Taylor, who still believes that what happened to her was rape, these findings were frustrating and not enough. The lack of evidence to use in this type of proceeding is not an uncommon one, and the impossibility of determining what truly happened can be maddening.. All steps of the investigation go through a variety of channels, and are reviewed by the Title IX coordinator, according to Aaron “Chip” Reese, dean of students and one of CSU’s deputy Title IX coordinators. CSU’s Title IX coordinator is Laurie Jones. However, while larger schools have many staff who cover these procedures and investigations CSU is smaller and does not have those resources. This leads to officials filling multiple roles in an investigation. As deputy coordinator, it is Reese who “makes an assignment” in cases involving students, because CSU only has two investigators. After he chooses who investigates each case, he checks up on cases throughout each investigation. Many times, cases “fall to the deputy,” said Reese. “Then the deputy takes his hat off and the dean of students puts his hat on, and makes a decision as to whether someone needs to be separated from the community or not.” Additionally, while Reese “always communicates with Laurie [Jones] first” he often handles the cases himself but “keeps her in the loop.” “I can’t remember a time when two students were involved where I didn’t take on the role of oversight,” said Reese. “Where at a large university you have a Title IX coordinator who is totally independent, who has deputies that are totally independent, where all they do is answer to the president. We can’t afford to do that here, so we end up wearing a couple of hats.” Jones, “looks over every word,” and Reese and Jones “talk back and forth, and if she has questions she sends it back down through.”

After this process, CSU could only suggest that both students no longer contact each other, and potentially seek counseling. By the end of the initial 60-day investigation, Taylor said had still not received her toxicology report or rape kit exam results. It’s a common occurrence. Some agencies have untested rape kits numbering in the tens of thousands. It’s a major problem, because investigations into rape are therefore unable to take the results of those kits into account. When Taylor got the results of the investigation from CSU, and saw that they recommended no sanctions or further investigations into the matter, Taylor appealed, entering her toxicology report and her rape kit into evidence separately. Both appeals were rejected. “It just makes it seem like I was okay right afterwards, and that’s basically their basis—I feel like that’s the school’s basis for why they couldn’t go forward after. Also there were no witnesses, and there was no evidence, even though I had the toxicology report and I gave it to the school,” said Taylor, “in the report itself it said the amount was not negligible and I don’t know what that means. But according to school, there was no evidence…There’s nothing they could do.” Like other cases with little physical evidence, nothing more could be done and nothing more, it seems, could be said.