An unlikely tool to help assault survivors: consumer protection law – By Stacy Teicher Khadaroo (CS Monitor) / Sept 13 2019
What role should transparency play in addressing sexual assault at colleges? Increasingly, a campus crime reporting law is being used to hold schools accountable for communication, and to offer a way forward for survivors.
She only wants to use the name Jane Doe, but the recent college graduate says she has hopes that the record-setting fine leveled against Michigan State University last week will propel reforms across the country. That would potentially spare others what she experienced after reporting sexual assault at her Florida campus last year.
The U.S. Department of Education’s $4.5 million fine may seem paltry to some, given former MSU sports doctor Larry Nassar’s decadeslong sexual abuse of students. But the Trump administration’s bold action is putting schools across the country on high alert because of the punishment and the sweeping changes the university must now make.
“When you’re away from home … you don’t have anybody really to help you do this,” says Ms. Doe, who accuses Florida Atlantic University of not informing and assisting her properly. She shared her story with the Monitor the day before filing a complaint with the Department of Education on Sept. 11.
Ms. Doe says she naively trusted her school to be in her corner, but looking back, it appears to her that staff were more concerned about protecting FAU’s reputation.
Ms. Doe’s complaint invokes an education statute called the Clery Act, the same statute that triggered the fine against MSU. Among its many functions, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act mandates crime reporting, sets rules for issuing timely warnings about threats, and requires campuses to inform victims about their rights and options. Though decades old, the act has added more layers of protection in recent years, prompting advocates to see it as an increasingly useful tool to address a continuum of sexual violence, ranging from stalking to assault.
At the heart of the Clery Act is the idea that transparency – keeping the community informed about crimes and the best options for responding to them – leads to better public safety.
Clery is framed as a consumer protection law, and overseen by the Education Department’s Federal Student Aid office. Unlike Title IX, the civil rights law that’s often in the news because of its rules around handling sexual assault at schools, Clery does not allow for private legal action, so only the Education Department’s enforcement can give it teeth.
Laura Dunn, a lawyer and sexual assault survivors’ advocate in Washington who helped Ms. Doe file her Clery complaint, says she is “amazed” at “how routine it is for schools to outright ignore the Clery Act.” She hopes the MSU enforcement “won’t be a dog and pony show only about this high-profile [Nassar] case, and that it will mean true reforms to address all cases.”
Schools have dedicated a lot of energy to complying with Title IX in recent years, but survivor advocates are concerned that law will be weakened by new regulations the Education Department will be finalizing soon. That makes Clery enforcement even more essential in their eyes.
Previously, the largest fine had been nearly $2.4 million for Penn State’s scandal involving sexual abuse by Jerry Sandusky, one of its football coaches. But in MSU’s case, even more potent than the fine is the fact that its access to federal financial aid for students is now conditional on full compliance with Clery reforms, says S. Daniel Carter, president of Safety Advisors for Educational Campuses, a consulting company in Thomson, Georgia.
These unprecedented moves are “a signal for all of higher education that enforcement is being stepped up significantly,” he says.
Putting safeguards in place
Mr. Nassar had so many victims partly because when people reported his abuse, some MSU employees receiving the reports didn’t pass the information along as they should have.
When she announced the fine on Sept. 5, Secretary of Education Betsy DeVos also included resolution agreements spelling out what Michigan State must do to comply with both the Clery Act and Title IX. Many of the reforms outlined go beyond the specifics of Mr. Nassar’s crimes, and could be applied proactively on any campus.
For example, MSU has agreed to hire a Clery compliance officer, set up safeguards and abuse-reporting channels for sports participants, and ensure specialized training of all staff responsible for reporting crime or investigating claims of sexual violence.
As a student in Boca Raton, Ms. Doe had never heard of the Clery Act. Near the end of 2018, the middle of her senior year at FAU, she reported to police and campus officials that she had been raped by a student athlete.
She says he then pressured her to change her story and tell police it was consensual, and that she did so because he made her feel guilty about potentially ruining his life. She had no legal advice and did not understand how that could later undermine her credibility in the eyes of campus investigators, she says.
Once she had time to reflect over winter break, however, Ms. Doe says she talked again to the Student Affairs staff member who served as her campus advocate. She explained, she says, how she had been pressured to recant her police account, and was assured that she could still go forward with a campus investigation.
For the next several months, though, she was frustrated when she tried to offer evidence to back up her account, because investigators told her they didn’t need it. She also says she was discouraged from getting a lawyer.
Her complaint to the Education Department claims that, according to the Clery Act, she should have been informed about legal assistance options, her right to seek a protective order, and her right to report witness tampering to the police, who had recorded a call with the accused student that could have been used as a basis to continue the investigation.
FAU spokesman Joshua Glanzer emailed a statement in response to a Monitor interview request on Thursday. “The safety of our students is our top priority. … We take any accusation of sexual assault seriously and pursue all appropriate measures to ensure that the rights of those involved are protected,” it reads in part. “We are cognizant of the Clery Act’s requirements and we consistently strive to maintain compliance with it and all other laws and regulations.”
The Monitor reached the lawyer of the student athlete, who still attends FAU, and he did not offer a comment.
One student’s experience
The day FAU decided the case was closed turned out to be just the beginning of a new chapter in Ms. Doe’s experience, as she recounts it.
On June 17, she got a call from the advocate: Campus investigators did not find the male student responsible for sexual assault.
Under Clery, campuses must give complainants and respondents simultaneous written notification and explanation of decisions after such investigations. But in her case, Ms. Doe says, the only option to read the lengthy report was to go sit in the advocate’s office and view it on a computer.
She wasn’t shocked by the outcome, because she knew rape is often difficult to prove. What hurt was for the report “to basically call me a liar and say that I’m lying and he’s telling the truth,” she says. Her complaint, which the Monitor has seen, includes detailed information intended to corroborate her claims.
“I was crying a lot,” she says, and before she finished reading, the advocate asked if she had thought about harming herself. She mentioned some thoughts had crossed her mind, but then insisted to the advocate, “I wouldn’t ever do anything to actually harm myself,” she says.
The advocate stepped away briefly, and soon two police officers arrived. “The next thing I know, I was being put in handcuffs and being put into the back of a car. And then I got taken to a psych ward. … I didn’t know what the heck was happening,” she says.
She had to spend a deeply disturbing night there before the psychiatrist interviewed and released her. She found out later that the advocate had made a call ostensibly based on the Baker Act, a Florida law to prevent people with mental illness from harming themselves or others.
Having this incident on her record could interfere with her longtime desire to become an Air Force officer, Ms. Doe’s Clery complaint notes.
She spent a week compiling evidence into a 19-page appeal letter. Officials declined to change their decision.
Ms. Doe graduated this summer, and says she hopes her complaint will lead to the university improving its staff training and “being more transparent while they’re doing their investigation, because they weren’t transparent at all.”
Campuses often have gaps in budgets and training, and many need to do a better job of compliance, says Laura Egan, senior director of programs at the Clery Center, a national nonprofit that provides technical assistance. But there’s also been progress, she says, with “campuses taking a more proactive approach, ahead of finding themselves in a situation where they are under the glare of national attention for doing things poorly.”
Clarence Tabb Jr./Detroit News/AP/File Morgan McCaul holds a sign showing the years doctor Larry Nassar, who abused her, was reported to Michigan State University as trustees arrive for a university board meeting on April 13, 2018. The government’s $4.5 million fine against MSU is unprecedented.
