Jury convicts man of sexual battery stemming from incident at KU dorm; issue of consent at heart of case
A former University of Kansas student must register as a sex offender for 15 years after being convicted of misdemeanor sexual battery for groping a female friend who was in bed with him.
The case is one example of the type of sexual assault reports KU investigates and punishes in secrecy but rarely lead to criminal trials, where documents and testimony are open to the public. The case also illuminated a concept emphasized by current sexual assault prevention and education training at KU: consent.
The defendant thought the woman was consenting, based on her actions leading up to the touching, his lawyer argued. But prosecutors arguing that those actions were irrelevant and that the victim did not consent won the case.
On Tuesday in Douglas County District Court, a jury of six found Hanbit J. Chang, 20, of Shawnee, guilty of one count of sexual battery, a misdemeanor, after a day of testimony and about 45 minutes of deliberations.
Instead of sentencing Chang following the verdict, Judge Sally Pokorny scheduled sentencing for Dec. 12 because, according to prosecutor Mark Simpson, the victim wanted some time to think about what she would like to say to the court.
Though the conviction is a misdemeanor, Chang will be required to register as a sex offender for a period of 15 years, his attorney John Frydman said.
Chang is no longer a KU student, according to the university directory.
The incident occurred Sept. 3, 2016, in Chang’s room in Oliver Hall on the KU campus.
The victim, then 19, reported it to KU police four months later, and Chang was charged March 6 of this year.
According to testimony from the victim and other witnesses:
The woman had come to KU from out of state to visit Chang and other close friends of hers from the same high school.
The group was drinking alcohol in a room in Ellsworth Hall, then the victim returned around 2 a.m. to Oliver Hall with two of her best girlfriends and Chang, who all lived there.
The woman said she had been drinking but was not very drunk. She said she chose not to sleep in her girlfriends’ room on the floor and instead went to Chang’s room because his roommate was out of town and there was an empty bed. Once there, she got into the twin-size bed with Chang because the roommate’s bed didn’t have any sheets.
She said she had extra clothes in her girlfriends’ room but was too tired to go get them, and borrowed a change of clothes from Chang. She said Chang asked her to change in front of him but that she made him turn around.
She said she dozed off and on as Chang watched a movie on a laptop in the bed. She said she had fallen asleep when she woke to him touching her breast.
She didn’t say or do anything in response, and pretended she was asleep, she said.
“I didn’t know what to do. I froze,” she said.
Then, she said, Chang put his hand down the front of her pants. She said she again did not say anything or push his hand away, but did roll over to stop him from going further. He stopped, she said, then she got up and left.
Back in her girlfriends’ room, she was “crying hysterically” and told them what happened, one friend testified. The friend said she and the victim, unable to settle back to sleep, went downstairs to the dorm lobby and reported the sexual assault to the university.
The victim testified she was notified that KU’s Office of Institutional Opportunity and Access investigated, found Chang responsible for “sexual harassment” in violation of KU’s student code, and that he was placed on probation.
When asked why she did not report the incident to police until months later, the victim said she saw a photo of Chang smiling, which upset her because she was still traumatized from the incident.
“He looked happy, like really happy, like he didn’t do anything wrong,” she said.
KU IOA investigator Jennifer Ananda — recently elected to the Lawrence City Commission — testified that Chang willingly spoke with her, and corroborated much of what the victim said.
Ananda said Chang told her that he thought the victim was asleep when he first touched her. She said Chang stated that “he messed up” and that the reason he stopped the touching was that “he came to his senses and realized that what he’d done was inappropriate.”
Chang told Ananda that he texted the victim an apology the next morning, saying “I f*ed up.”
Ananda’s testimony illustrated a key difference between KU IOA findings and criminal convictions.
KU IOA makes conclusions based on a preponderance of the evidence standard, meaning something is more likely than not to have occurred.
“We call it 50 percent and a feather,” Ananda said, of the level of convincing needed to find someone responsible for violating university policy.
In criminal cases, however, juries are instructed that they must convict only if they are convinced beyond a reasonable doubt that the defendant is guilty of the alleged crime.
Frydman emphasized the higher burden of proof in his closing arguments.
“There’s reasonable doubt that’s pervasive in this matter,” he said.
“There was confusion, there was misunderstanding, there was implied consent.”
Frydman challenged the victim’s testimony that she was asleep when the touching began. He said Chang testified in court that he thought she was awake, and that Chang was saying the victim’s name and stated he first touched her stomach before her breast.
Frydman said that numerous prior interactions should have made known to the victim that Chang was romantically attracted to her, including him “cuddling up” to her earlier at the party and outright telling her he wanted to see her undress.
Then, despite having other options, the woman chose to wear Chang’s clothes and get into the bed with him, Frydman said.
“That is implicit consent,” Frydman said.
Frydman pointed out that even though KU policy may explicitly define consent, Kansas law does not require verbal affirmation to consent to sexual activity.
Likewise, while consent can be withdrawn at any time, the law does not require that to be verbal, either, Frydman said.
Frydman said the defendant removed his hand when the woman moved away.
“As soon as the implicit consent is stopped, he stops,” Frydman said.
Frydman said that while Chang did apologize, it wasn’t for criminal sexual battery.
“He was apologizing for ruining their friendship,” Frydman said. “He did not commit a crime.”
Prosecutors reminded the jury that in order to convict the defendant of sexual battery, the state didn’t need to prove he knew the victim did not consent, it only needed to prove that the victim did not consent.
And, Simpson said, she did not consent.
“Does the fact that she’s going to sleep in her friend’s bed mean that she has consented to him touching her breasts and trying to touch her vagina?” Simpson said. “Folks, that’s not consent.”
The victim was asleep when the touching started, and could not consent, Simpson said.
Since they were close friends, the victim trusted Chang, Simpson said. The victim didn’t understand what was going on when it started happening, Simpson said. When the touching stopped, she left and was hysterical.
“She didn’t realize that she needed to protect herself against him that night,” Simpson said. “He took advantage of that.”