‘To her, it’s black and white’: Lewis Hall rape case illustrates challenges KU, prosecutors face in sex assault investigations
To her, it’s black and white.
What happened in a fellow Kansas University student’s dorm room — two times during the fall of her freshman year, both after nights of heavy drinking — was rape.
To her alleged assailant and those investigating her case, it’s not so cut and dried.
Allegations by the 20-year-old KU sophomore, who recently shared her story with the Journal-World, have spurred outrage on campus and beyond. She says KU mishandled her case and failed to adequately discipline her assailant, prompting her to file a federal complaint against the university. Media reports have labeled the male student a “confessed rapist,” and it’s now a foregone conclusion in many minds that not only is he guilty of rape but that a major university, a district attorney and the police chose to protect him.
But a closer look reveals a more complex story that illustrates the challenges of identifying and adjudicating sexual assault cases in a university setting.
Campus rape has emerged as a top political and social issue this year. It’s one where federal Title IX law, criminal law, campus policies, enforcement of them and education about them all intersect.
Further complicating investigations? Alcohol abuse figures prominently in most of them.
The female student in the much-publicized KU case contacted the Journal-World in August. At her request, the newspaper is not publishing her name.
Besides the woman, her mother and her attorney, no one else involved in her case agreed to talk about it. The woman declined to sign a release form that would have allowed KU officials to do so. She also has asked the district attorney not to discuss specifics about it. The newspaper’s attempts to reach her alleged assailant or his attorney were unsuccessful. The police investigation is closed to the public — even the woman has not been allowed to see it, she said.
The Journal-World obtained a number of documents from the KU Office of Institutional Opportunity and Access, or IOA, investigation into the woman’s case as well as a copy of the complaint she filed with the U.S. Department of Education’s Office for Civil Rights. Her account comes from an in-person interview, as well as those documents.
The woman arrived at KU from out of state for her freshman year in 2013 and moved into Lewis Hall. She didn’t know anyone, and her boyfriend was many states away.
Within a few weeks, she met her alleged assailant — who also lived in Lewis, on a different floor — through a friend and they exchanged numbers and started hanging out.
One day in late September, after she’d had a “particularly difficult” conversation with her boyfriend, the male student invited her to his dorm room to spend some time together.
She got drunk, and they had sex.
“I had strong feelings of guilt and shame,” she said. “I even told (him) we were not going to discuss (the) September incident since I refused to acknowledge to myself or to him that it even happened.”
But they stayed in contact, and she regularly spoke about her confusion over her boyfriend with the man, who she described as a friend. When he invited her to a fraternity date party in October, she agreed. “I figured it would be fun.”
The party was Oct. 18, 2013, at a private residence near 19th and Kentucky streets (the fraternity doesn’t have a physical house at KU). She isn’t sure which one.
They arrived around 10 p.m., she said. The house was crowded. Baby pools were filled with help-yourself beer on ice. To match the party’s stars-and-stripes theme, the cocktails were red, white and blue. A friend of her date’s from another school had brought in her own bottle of vodka and was sharing it. There weren’t any formally organized activities, but people — including her — were playing drinking games.
She drank a lot of beer, some vodka, more beer, and sometime around 1:30 a.m. Oct. 19, she said, she “kind of blacked out.” Her date had driven them to the party, but they walked back to their dorm, just over a mile and a half away. He was definitely drunk, she said, but able to get her home.
“I was tripping all over the place,” she said. “I had to hold onto him.”
Back at Lewis Hall, they both went to his room.
Earlier in the night they’d decided that if things “got crazy” they would stay together to keep an eye on each other, like in case someone ended up vomiting, she said. Plus, her own roommate was asleep in her suite and she didn’t want to bother her.
They had sex for the second time. She said she told him to stop but that he continued until he climaxed.
“I told him, ‘No, I don’t want to,'” she said. “And that didn’t change anything … I kind of just took it.”
The next morning, she woke up in different clothes, felt “awful” and slipped out while the male student slept.
At first she didn’t remember having sex, she said. She texted him to say thanks for a fun night.
Then things started coming back to her. She texted him some more, fishing for information about what happened and asking how drunk she was. He replied, “I honestly didn’t think you were too bad but you were deff drunk.”
The female student called her boyfriend, who told her she needed to call the police. Her girlfriends told her the same thing. The next day she called her parents, who she said helped her understand that what happened was rape and also told her to call the police, though they understood her hesitation.
“We were really good friends for a while,” she said. “It was like, I don’t know if I want to send my friend to jail.”
The woman reported the rape to KU Office of Public Safety on Oct. 20. She gave officers a verbal and handwritten account of the incident, had a rape examination at the hospital and was given emergency contraception.
She thinks the male student used a condom, but she isn’t sure.
The woman filed a second sexual assault complaint with KU IOA on April 17, alleging that the man also raped her the first time they had sex in September.
“As I came to terms with that had happened prior to the October incident, it became quite clear to me that there had been a second rape,” she said.
She explained that the day she went to his dorm room after arguing with her boyfriend, the man “plied” her with tequila but did not imbibe with her. He was hungover from the night before, she said, but continued to give her drinks throughout the evening until she was drunker than she’d ever been in her life.
She did not physically “fight back” when they had sex, she said, but she later realized that didn’t mean that what happened wasn’t rape.
“I was the only one drinking and the amount of alcohol I consumed completely blunted my ability to resist,” she said.
KU’s investigation into the second complaint is ongoing.
The woman said the rapes and her frustrations about KU’s investigation have caused her extreme anxiety over the past year. She saw her assailant in passing once on campus last school year, she said, and it sent her into a “full-blown panic attack.” She got counseling and plans to continue it this school year.
“It’s been really hard,” she said.
The male student — whose account comes from a nine-page letter his attorney wrote to the University Judicial Board — insisted both sexual encounters were consensual.
He and the woman were engaged in a “typical college freshmen romantic relationship,” attorney Michael Fischer said in the letter, dated March 24. Regarding the sexual encounters, “There was no force or fear, just alcohol and confusion.”
The two KU students met early in the semester and “took an immediate liking to one another and began texting,” Fischer said. Occasionally, they talked about the woman’s confusion about a relationship she had with her boyfriend from high school.
After the night of drinking and partying in October, Fischer said the two walked for at least 20 minutes on the crisp night to their dorm. They took the stairs to the man’s room, where they spent several minutes talking to his roommate and roommate’s girlfriend and the woman took her birth control pill in front of them, Fischer said. Within 10 minutes, he said, the woman had voluntarily disrobed.
Fischer argues that the allegations are linked to alcohol consumption and so KU’s sanctions should relate to alcohol.
“What is also known is that allegations relate exclusively to the conduct of two individuals who were actively and obviously in a romantic relationship, and relate to conduct occurring while the parties were under the influence of alcohol,” Fischer wrote.
He added, “The allegations by (the woman) have completely turned (the man’s) world on its head. At the time he was arrested, late on a Sunday evening, (the man) still believed the parties were in a romantic relationship,” Fischer said.
Fischer said the man was removed from his dorm “and will have to figure out a way to address issues related to trust and intimacy with each and every relationship he has as he moves forward.”
The woman called Fischer’s letter “lies.”
District Attorney Charles Branson’s office has not filed charges in the October rape case. His office has been in contact intermittently over the past year with the female student and her family about the possibility of charges, both said.
Her attorney, Chuck Schimmel, said that after KU completed its findings — “much to her dissatisfaction” — she renewed her push for criminal charges.
“At this time, it’s her desire that charges be filed,” Schimmel said. “However, she understands that the DA’s office needs some time to look at it and come to a decision.”
Initially, Branson only knew of the October report. A few weeks ago, the woman told him about the September incident, for which she never filed a police report.
Branson said he’s taking another look at the case with the new information added to determine whether it would make a difference in a charging decision.
One question is whether, as the woman said, the man continued intercourse after the woman told him to stop.
Schimmel, said he was allowed to view the police report, which includes KU police officers’ interview with the male student, at the district attorney’s office.
“What he claims is that they were both intoxicated, that she initially said ‘I don’t know,’ then ‘No,’ then ‘I don’t know’ again, and then she went silent,” Schimmel said. “He said he continued for 15 minutes after she said no.”
The police report is not an open record so the Journal-World could not review it. However, those who were charged with making decisions about prosecution and campus discipline — the DA’s office and KU’s Student Conduct Office and IOA — did have access to the report, Capt. James Anguiano of the KU Office of Public Safety said.
KU officials will not talk about what’s in the file, and neither will the DA.
Speaking generally, Branson said alcohol-facilitated sexual assault cases are difficult.
When evidence associated with the more traditional stranger rapes — such as bruising, torn clothes or even a weapon — isn’t there, investigators and jurors must consider what each party says, Branson said. Especially when alcohol is involved, accounts may vary so it’s important to glean information about the context to help corroborate statements.
“You really have to look at those surrounding circumstances,” he said.
Branson said predators who knowingly and purposefully have sex with incapacitated women “are definitely out there, without a doubt.” He said sometimes after the men are prosecuted, additional women they victimized come forward.
A man taking advantage of an inebriated woman who’s lost her inhibitions may be wrong, but it’s not criminal, Branson said.
According to Kansas statutes, rape is knowingly engaging in sex with a victim who does not consent. Branson said the victim must be overcome by force or fear or incapacitated, which includes being unconscious or inebriated enough to be incapable of giving consent.
Some students bristle at the suggestion that alcohol should be a factor in rape cases, saying that factoring in a woman’s alcohol use is blaming the victim akin to describing her attire.
Branson said he’s aware of so-called “victim blaming” and that it is a concern when it comes to criminal prosecution of rape.
“There is no way we can get around talking about how much alcohol was consumed,” Branson said.
KU investigates ‘non-consensual sex’
The morning after filing her report with KU police, the woman said she got a call from IOA executive director Jane McQueeny.
Her office — tasked with enforcing KU’s compliance with Title IX — opens an investigation into every sexual assault complaint it gets, whether the tip comes from the victim, an acquaintance, a faculty or staff member or someone anonymous, McQueeny said. IOA has investigated more than 30 cases of sexual harassment, which includes sexual violence, and in some of those cases has expelled students, officials have said.
The woman agreed to speak with IOA investigators, who also interviewed other people she’d been with that night and had access to results of the rape kit she had completed at the hospital.
The IOA concluded that the male student had “nonconsensual sex” with the woman and recommended he be banned from student housing, be placed on probation, perform community service and write a reflective paper, McQueeny told the woman in a letter obtained by the Journal-World.
But KU’s Student Affairs Office, which ultimately approves and enforces such recommendations, issued less severe sanctions, according to a letter that Nicholas Kehrwald, KU’s director of student and community standards, wrote to the accused man. Ordered in the letter — which explained to the man that IOA’s investigation found that the female student was incapacitated by alcohol when the sex occurred — was disciplinary probation, an alcohol-education course and meetings with IOA for additional training on consent, sexual harassment, sexual violence and incapacitation. He also was banned from student housing and reminded of KU’s no-contact order between him and the woman.
KU officials would not discuss the case or any punishment that resulted.
The man is not a student now, the university confirmed.
The woman’s chief complaints about KU’s handling of her case are that her alleged assailant was not punished severely enough and that even though policy requires it, KU denied her the opportunity to appeal the man’s sanctions.
She also believes KU wrongfully used the September incident against her when lightly adjudicating the October incident, she said.
The woman said she filed a complaint with the U.S. Department of Education Office for Civil Rights in June.
That office would not confirm details about the complaint or complaints that caused it to investigate KU. The university is among 76 schools where sexual assault investigations are being reviewed.
Meanwhile, the woman and her family filed a complaint with the KU Interfraternity Council about the October 2013 off-campus party. Kevin Simpson, IFC president, said that the fraternity was found responsible for holding the event improperly and received sanctions from the IFC judicial board for violating social policy. The fraternity also received sanctions from its international headquarters, Simpson said.
Lower burden of proof
Most sexual assault cases KU investigates involve heavy drinking, which “tends to cloud and in some instances cause there to be little or no recollection of events,” McQueeny said.
Further complicating such investigations is the sensitive nature of sex.
After a traumatic event, students may have difficulty processing or speaking about what happened, McQueeny said. It also can be hard for them to talk in detail about intimate sexual encounters.
“Frequently, the parties provide differing statements about the facts and during the investigative process we must make credibility decisions based upon prior consistent or inconsistent statements, medical evidence including (sexual assault) exams, the communication by and between the parties, interviews of witnesses, and other documentary or relevant evidence,” McQueeny said.
However, McQueeny’s office isn’t required to meet the same burden of proof as a court of law. And it’s charged with investigating violations of university policy, not laws.
A district attorney must prove guilt beyond a reasonable doubt to convict someone of a crime. IOA investigations aim to determine whether the preponderance of the evidence demonstrates it’s more likely than not that the accused violated university policy, McQueeny said.
“In some cases, relevant evidence is plentiful. In other cases, evidence is scarce,” she said. “When IOA determines that there is insufficient evidence to find a violation, it does not mean that the university does not believe a survivor or that the university does not take complaints seriously.”
Also unlike a court of law — which must find the accused guilty before imposing sentences — KU has the power to take certain actions whether its investigation finds a violation of university policy or not. McQueeny said common “support measures” to help survivors feel safe on campus might include providing a campus escort, counseling, tutoring, rearranged class schedules or different living arrangements.
Accused students have decried that power by universities.
Nationally, a number of primarily male students has sued universities claiming their rights were violated in such situations.
KU policy says, “full and informed consent of all persons” is needed for sex.
Like criminal law, KU considers an incapacitated person incapable of giving consent, McQueeny said.
Signs a person is incapacitated include vomiting, an inability to walk, unconsciousness, unusual behavior and blacking out, or showing a lack of conscious awareness, she said. The accused must know or should have known that the other person was incapacitated at the time of the sexual activity.
According to McQueeny:
Consent means words or actions that show an active, knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. It is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that he or she has consent.
All of that may seem obvious.
But McQueeny said that’s not the case, which underscores the importance of awareness.
“Students accused of sexual assault are often surprised by the allegations against them and express a belief that they believed the sexual activity was consensual,” she said. “This highlights the need for the university to continue to provide education about consent and for all students to engage in the dialogue about what it means to consent to sexual activity.”
Special report: Sexual violence on campus
More stories from the Journal-World’s Sept. 14, 2014, focus on an alleged rape of a woman in a KU residence hall and the issue of sexual assault here and on campuses nationwide.