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09/02/2014 07:42 pm ET Updated Dec 06, 2017
University Of Kansas Considered Community Service Too 'Punitive' For Rape Punishment
By Tyler Kingkade
On the night of Oct. 18, 2013, a few blocks from the University of Kansas campus in Lawrence, Kansas, underage students put back vodka shots at a "Stars and Stripes"-themed party hosted by the Lambda Chi Alpha fraternity. One of the students was a young woman, a freshman from out of state who after midnight was drunk enough to need help from a male classmate getting back to the campus dorm where they both lived. They went to his room that night and had sex.
The man would later admit to campus police that he continued to have sex with the woman even after she said "no," "stop" and "I can't do this."
To the woman, that confession is a clear-cut sign she was raped. When she reported the attack on Oct. 20, she assumed it would lead to swift punishment. But area police and the local district attorney have so far refused to prosecute the male student for sexual assault. The school wasn't much better, declaring the man guilty of "nonconsensual sex" and punishing him with probation and a ban from university housing, and ordering him to write a four-page reflection paper and seek counseling.
The university also considered having the man perform community service, but ultimately decided such a measure was too "punitive." Meanwhile, the woman says that a local police officer threatened to arrest her when she acknowledged that she'd taken part in underage drinking at the fraternity.
The woman, now a sophomore, requested anonymity when speaking with The Huffington Post.
"I was just so baffled at how little of a punishment he was getting," she said of the male student.
The woman still wants justice. After finding no help at the local level, she turned to the federal government, filing a complaint against KU in April.
The University of Kansas became one of 76 higher education institutions under federal investigation in July for how it handles sexual violence on campus. Schools are required under the gender equity law Title IX to respond to reports of sexual assault, in addition to any criminal proceedings, as a way to keep their campuses free of harassment or a hostile environment. But like many college sexual assault victims who have brought the issue to the attention of Congress and the White House, the female student says she was let down by lenient punishments and local officials who refused to even try to put her alleged rapist behind bars.
"People need to know how little attention this is being given when they do come forward to the university," she said. "You get serious consequences for plagiarizing, and you get horrible consequences if you have a six-pack of beer in your dorm. I think this is more serious than those, and it's given very little attention."
The morning after the Lambda Chi Alpha party, the woman remembers being confused. Text messages show her trying to recollect what had happened with the man, who told her "You were deff [sic] drunk."
After leaving the fraternity party, the female student needed help getting home due to her level of intoxication. She says a sexual assault took place in a male acquaintance's dorm room.
As the woman pieced together what happened, she went to campus police to report the male student for sexual assault. When police interviewed the male student later that week, he said that he'd continued intercourse with the woman until he reached orgasm, even after she'd said "no" and asked for the sexual contact to stop, according to the woman's attorney, Chuck Schimmel.
"To me, the law is that you have to disengage from sex once someone tells you to stop or 'no,'" said Schimmel, noting that the man was also aware of the woman's heavy intoxication at the time.
Douglas County District Attorney Charles Branson decided by the end of October 2013 not to press charges, despite the man's confession, because there was a less than 1 percent chance a jury would convict, according to the woman's family.
"Well, if those 99 percent are for sure losers, how many of them come with a full confession?" the woman's mother said in an interview with HuffPost. "It's not 'he said, she said.' It's 'she said, he confirmed.'"
The Huffington Post reached out to Branson on Aug. 24 to get his side of the story. The following day, Branson said it would be improper for him to comment because he was reconsidering the case. He said he'd received new information while speaking with Schimmel about HuffPost's interview request.
But KU fully investigated the case back in 2013.
The accused student was found responsible for "nonconsensual sex" on Dec. 20 by KU's office for Institutional Opportunity and Access (IOA), which handled the case. He was punished with probation, counseling, a ban from university housing and a mandatory reflection paper "regarding alcohol, incapacity and sexual activity," according to confidential documents signed by Nick Kehrwald, director of KU's student conduct and community standards, and obtained by The Huffington Post.
"Given your assisting [the woman's] walk home, as well as witnessing her behavior in the room, IOA concluded that you knew or should have known of [her] incapacitation," Kehrwald wrote, noting that at no point did the accused man deny the charges against him or provide any statement in his own defense.
IOA had recommended that the male student also perform community service, listed on KU documents as a more severe punishment than probation, but Kehrwald decided against that. He wrote to the male student, "I expect in the future you will use more appropriate judgment in your decision-making." Then Kehrwald wrote in an email to the woman that he "understood that these sanctions addressed your concerns and were considered fair."
The woman's family begged to differ.
On Feb. 26, the female student appealed the university's sanctions for being too lenient. The male student was given two weeks to respond in his own defense. But that response didn't come for nearly four weeks, arriving March 24 in the form of a statement from the man's attorney, Michael J. Fischer. That statement pointed to an existing relationship between the two students, and cited the fact that the woman took a birth control pill the night of the party as evidence that no rape had occurred:
"While no one other than [the female student] can know of her intent, her decision to bring and subsequently take her birth control pill provides at least some indication that she intended to have consensual sex that night," Fischer's statement reads in part.
But that rebuttal didn't matter, because KU associate general counsel Rachel E. Rolf had already dismissed the appeal on March 12, writing that the sanctions were consistent with university policy. Adding community service wouldn't be possible, said Rolf, because it would "strictly be punitive."
"The student conduct process," Rolf wrote, "is intended to be educational, not punitive."
The woman said if she'd known how the university was going to handle her case, she might not have reported at all.
"The way [the university] dealt with it caused me so much more stress than the actual incident has," she told HuffPost.
The woman's family has also taken issue with the university's refusal to investigate the fraternity for serving alcohol to minors.
On Oct. 26, a week after the original frat party, the woman's family went to police to report the minors who had been drinking there. But Lawrence police officer Tim Froese told the family that people at the location where the party was held wouldn't talk. And since the woman had admitted to consuming alcohol as an 18-year-old, Froese said she'd confessed to a crime. He threatened twice to charge her for being a minor in possession of alcohol.
"That sounds like the most outrageous, offensive thing I've heard," said Adam Goldstein, attorney advocate at the Student Press Law Center, who is not involved in the woman's case. Goldstein said that threatening charges against a witness to a potentially ongoing criminal offense "suggests a concerted unwillingness to enforce" the fraternity's violation of alcohol-related liquor laws.
When asked about the threat of arrest to the student, Lawrence police said they could not locate any complaint filed with their department regarding the officer who investigated the incident.
Meanwhile, Lambda Chi Alpha won't be punishing the male student because the "individual involved was never initiated" into the fraternity, a national spokesman said. The fraternity did, however, put the KU chapter on probation for violating university and fraternity rules on event planning and policy procedures after learning about the incident.
For months after the assault, the female student repeatedly saw the man on campus, sending her into what she describes as a "full-blown panic attack." It's clear to her a more severe punishment was warranted.
"Basically, he was getting a slap on the wrist," she said.
The accused student, through his attorney, declined to speak with HuffPost. But the school attempted to explain:
"When we make our recommendations, we look at what is going to help the respondent understand what happened and his responsibility for what happened," said Jane McQueeny, KU's Title IX coordinator and executive director of IOA, who issued the original recommendation that the offender receive community service on top of probation. "Do they have some idea [of] what they have done and how it's affected the victim?"
University officials "agonize over every single one of these decisions," McQueeney said.
KU issued four expulsions and one suspension for violations of the school's sexual harassment policy in the 2013-14 year, and two expulsions and four suspensions for such offenses in the academic year prior.
"KU follows the best practices of the Association for Student Conduct Administration, which is [regarded] as the premier association for the field," said KU spokeswoman Erinn Barcomb-Peterson. "The ASCA standards maintain that 'the primary role of student conduct administrators is that of educator.'"
ASCA, a national organization for administrators dealing with student misconduct, distributes literature to its 3,100 members explaining that "campus proceedings are educational" and not meant to mimic the processes or punishments of courtrooms.
"These decisions aren't made in a vacuum," Kehrwald, the student conduct director, told HuffPost in an interview. "There are conversations with my assistant vice provost and the vice provost."
Kehrwald added that "from a student conduct perspective," any time they are not separating a student from the school, they want to implement sanctions that will "better equip the student to be successful while they're at the institution."
Brett Sokolow, president and CEO of the National Center for Higher Education Risk Management, who frequently counsels schools on how to handle incidents of sexual assault, said that applying such a sanction in this case did not appear appropriate.
The KU case shows why leaving these matters in the hands of student conduct administrators who lack training in the complexities of sexual violence -- rather than in the hands of a Title IX coordinator -- is a bad idea, Sokolow said.
"They want desperately to believe they can use a reflection paper to teach him to stop next time," Sokolow said. "They don't think about the next victim, if he does not stop."
Need help? In the U.S., visit the National Sexual Assault Online Hotline operated by RAINN. For more resources, visit the National Sexual Violence Resource Center's website.
Tyler Kingkade
Senior Editor/Reporter, The Huffington Post
Campus Sexual Assault College University Of Kansas Title Ix Breakingthesilence