Lee Rood

lrood@dmreg.com

A graduating senior at Central College who was found responsible for "non-consensual sex" with a fellow student was given a choice: be expelled a month before graduation or stay in school with the conditions that he not walk in the ceremony and allow the college to notify a future employer and other schools that he'd violated the code of conduct.

The decision this month, and what happened during the school's investigation, shocked the 20-year-old woman who reported being raped.

"I wouldn't want anyone to go through their process," she said. "I'm the one who has been treated like a criminal."

The controversial choice offered by school administrators comes amid Sexual Assault Awareness month and during a year in which colleges around the country have been scrambling to better deal with sex crimes. High-profile cases in Montana and elsewhere have spurred policy guidance from the U.S. Department of Education and the U.S. Department of Justice, a White House task force, and changes in federal law regarding annual security reports and new disciplinary proceedings.

In Iowa, the Central College case in Pella raises questions about how private colleges — subject to federal Clery Act crime reporting and Title IX-related requirements, but not to state open records law — handle reports of sexual assaults. The state's public universities, which have stepped up reporting on campus, have faced a firestorm of pressure to do more to protect students and properly investigate reports.

Sexual assaults on college campuses are prevalent: the federal Bureau of Justice Statistics says more than 75 percent of the women who reported a rape were under 25 years old at the time. A year-long investigation by the Center for Public Integrity found that students deemed "responsible" for sexual assaults on campus often face little or no punishment from school judicial systems, while their victims' lives are frequently turned upside down.

The crimes also are woefully underreported, numerous studies have found. Iowa State University reported 23 forcible sexual offenses on campus from 2010 to 2012 and four off its campus of more than 30,740 students. The University of Iowa, with about 30,129 students, reported 31 sexual offenses on campus during the same span, and four off-campus. Central, with about 1,486 students, reported three on campus in those three years.

Rebecca Stout, legal services coordinator for the Iowa Coalition Against Sexual Assault, said it's not unusual for schools to struggle when trying to meet the rights of the accuser and the accused in sexual assaults, as well as state and federal mandates. But it is unusual — and troubling — for schools to give perpetrators choices in their punishment, she said.

"I've never been aware of schools giving a choice in the level of discipline," she said. "That's the responsibility of the university."

Monique DiCarlo, sexual misconduct response coordinator at the University of Iowa, said she understands why institutions may be tempted to negotiate with students to resolve complaints. But, she said, offering a choice in sanctions is not a good practice.

"I think you want to have clarity about what your sanctions are regarding violations of your code of conduct," DiCarlo said. "Negotiation can send the wrong message to the larger community."

Diverging accounts of what happened

An investigative report at Central College, issued in March, shows the woman and man became friends during the 2011-12 school year at the small liberal arts college in Pella.

The Des Moines Register is not identifying the woman because it does not generally identify sexual assault victims and is not naming the man because he has not been criminally charged.

The two were friends, occasionally flirting, hanging out and "drunk dialing." The female student said the relationship was never close to sexual, but the two had kissed previously and she had just broken up with her boyfriend.

In late March 2013, the two met up after a night of drinking separately and agreed to watch a movie at his place.

The female student said they talked and listened to music, eventually kissing, according to the school's investigative report. She said the man asked if she was ready to have sex, and she said no. She said she fought him and repeatedly told him "no" as he tried to take off her clothes. She said he became more aggressive, told her to be quiet, grabbed a condom from his desk drawer, put a pillow over her face when she tried to yell for help, and raped her.

The male student said they began watching a movie and kissing, then she put her hands down his pants and asked if he had a condom. He said he got a condom, she climbed on top of him and they had sex, according to the investigative report.

The next day, after leaving the dorm, the female student sent him a text that said: "I am not sure what happened last night," to which he replied, "oh." Later, she sent a text saying, "That was a rude awakening," and he replied "why."

The male student later said he thought she texted him that because his phone alarm had sounded, playing the song "Toot It and Boot It" — a sexually explicit song that Central's misconduct panel noted was "demeaning."

The woman, a student athlete, told the Register her first reaction was denial — she didn't want to tell anyone what happened and tried to forget it. But after she ran into the man at a party during Central's Homecoming weekend last October, memories sent her into a tailspin, she said.

The young woman's parents said in letters to the investigative panel that their daughter had never had academic or behavioral problems until then. After Homecoming, they had to bring her to an emergency room because she was suicidal — a breakdown witnessed by Dean of Students Charlie Strey, they said.

On Oct. 6, the sophomore took medical leave from the college for the remainder of the semester. The following week, her parents brought the young woman to an event at Augustana College, where a woman recounted being raped.

Their daughter, they said, broke down in tears and said that she, too, had been raped.

Central's reaction: Call police first

On Oct. 29, the girl's father drove to the college to tell Strey and another official that his daughter had been raped by a fellow student. He provided the student's name just before Christmas, after his daughter experienced panic attacks and gave him the name.

The woman's father said he contacted Strey and Vice President for Student Development Peggy Fitch, who said his daughter had to report the sexual assault to Pella police before the school could begin a probe.

"It is essential that they hear her statement first to avoid compromising the integrity of the criminal/legal investigation," Fitch wrote in an email.

Going to police seemed too big a step, the young woman said.

"I wanted to regain having control and have power over when I did things, trying for one victory at a time," she said. "(Reporting to the school) was physically and emotionally draining, and it was a big step. The main reason I went to the school was the whole justice aspect of it."

The father also balked at the school's stance, writing back on Dec. 20: "I firmly believe, and will again reiterate that Central's policy, and the delay in initiating (and possibly completing) its hearing process could subject (the female student) to further emotional trauma, and, God forbid, additional physical assault."

Three years ago, the U.S. Department of Justice and the U.S. Department of Education's Office of Civil Rights sent a letter to colleges, guiding them in their responsibilities regarding sexual harassment and misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational activities. The letter underscored that schools were required to take immediate action to eliminate harassment, including sexual violence, and prevent its recurrence.

"The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical," the federal letter said. "For example, a single instance of rape is sufficiently severe to create a hostile environment."

Among other points, the letter said schools should not wait for the conclusion of a criminal investigation to begin their own investigation or to take steps to protect the victim.

But the woman's parents say college administrators declined to begin an investigation or come up with a safety plan until their daughter returned to campus in mid-January.

Emails show Strey issued both students a no-contact order on Jan. 17, a day before the young woman returned to campus. The move notified the male student before she had consented to making her complaint public, which is forbidden under federal law.

The woman and her parents say administrators didn't act to remove the male student from the dorms until the beginning of this month, after two college administrators saw the woman go into trauma-related shock, and her parents threatened to contact the media.

College President Mark Putnam declined to be interviewed because the case is ongoing.

A marathon hearing

The case went before the college's five-person Sexual Misconduct Hearing Committee on April 7. During the marathon 11-hour hearing, the woman said she was told to answer questions from the male student as he handed them to the chair of the misconduct committee. She said it was so stressful that she vomited in the bathroom.

A week later, the panel issued its decision, finding that he "more likely than not" committed the offense. The panel determined that while the man had no prior college policy violations, the woman had no motive to bring the allegations "and put herself, her family and her friends through this difficult process."

In a letter to the woman, the panel said it believed her mental health plummeted directly after the assault last year and concluded there was no evidence her symptoms were "feigned or attributable to any other cause."

The panel also found the testimony of several witnesses more credible to the woman's account than the man's.

Yet the committee said the man was offered a choice of sanctions because of "discrepancies between the two individuals' perceptions and explanations of their relationship and the incident."

"Determining responsibility was clearly a close and difficult decision," the panel noted. "But in the end, a decision of responsibility was reached by a majority (not unanimous) of the committee who decided the evidence tipped the scales however so slightly of finding (the accused) responsible."

A 2013-14 handbook distributed to students at Central College underscores that nonconsensual sex is rape under criminal law, and those found responsible will face a recommended sanction of expulsion.

But the school's conduct rules also give the committee the right to broaden or lessen sanctions in the case of "serious mitigating circumstances or egregiously offensive behavior."

Both students appeal outcome

Both students have appealed.

Des Moines attorney Peter Berger, who was hired by the young man, said his client took the option that allows him to graduate next month, but he is awaiting the outcome of the appeal.

"This is not the final decision," said Berger, who said he advised the man not to talk to the media.

The woman's attorney said he will be asking for an expedited review before graduation May 17. The woman also has accused the college of violating Title IX, the 1972 law that requires schools to address sexual assaults on campus. School officials have yet to address that complaint.

The woman said she's awaiting the outcome of the appeal to decide what to do next. "The reason I want justice is so he can't go do this again wherever he goes," she said. "It is scary for me knowing he is now leaving Central."

Prevalence of sexual assault on campus

At least one in five college women are estimated to experience sexual assault, but fewer than half of victims ever report it to authorities, according to the Rape, Abuse and Incest National Network.

Fewer than 5 percent of completed or attempted rapes of women in college are reported to law enforcement officials, according to federal statistics.

Institutions are required by federal law to inform the campus community about a "significant emergency or dangerous situation involving an immediate threat to the health or safety of students or employees occurring on the campus."

The federal Family Educational Rights and Privacy Act, or FERPA, also allows colleges to disclose to anyone the final results of a disciplinary hearing if it finds against the perpetrator of a crime of violence or non-forcible sex offense.

• Statement from Central College:

"While Central College cannot comment on any particular case, the college takes very seriously any report of sexual harassment, misconduct or assault. Our immediate attention in all cases includes providing for the well-being of the student bringing the concern forward; including, making a variety of resources available to the student; taking appropriate interim measures to facilitate the student's ongoing access to our education, residential and co-curricular programs; addressing any safety concerns; and facilitating his/her access to both campus-based student conduct proceedings and/or criminal proceedings."