SUNY grad says school made her prosecute her own sex attacker

She's had nightmares, flashbacks and panic attacks since being sexually assaulted last year at Stony Brook University.

Yet when Sarah Tubbs sought the university's help to proceed with disciplinary charges against her alleged attacker, officials required her to personally prosecute him, she said. Tubbs has no legal training. Yet she had to question and be cross-examined by the man she claims sexually assaulted her in his dorm room.

Tubbs, 22, of Montrose, is suing Stony Brook, which is part of the State University of New York system, and her alleged attacker in violation of Title IX, the federal law that prohibits discrimination on the basis of gender at schools that receive federal funding. Under the law, such discrimination can include sexual harassment, rape and sexual assault.

Her lawsuit, filed last month in federal court in White Plains, seeks monetary damages and a court order abolishing the practice of having sexual-assault victims "prosecute their own cases and to cross-examine and be cross-examined by their assailants."

The alleged attack occurred nearly a year before State University of New York campuses adopted a more comprehensive sexual assault policy in December 2014 at the urging of Gov. Andrew Cuomo. Tubbs wants the new policy broadened to specifically prohibit victims from having to prosecute their own attackers at student disciplinary hearings.

Tubbs alleges she was sexually assaulted early on Jan. 26, 2014, after a campus party where she played drinking games. She accompanied her alleged attacker to his dorm room intending to have sex, the lawsuit says, but changed her mind. Tubbs tried to physically resist, she claims, and blacked out at points from intoxication. She claims the alleged assailant forced her to perform oral sex, penetrated her with his fingers and attempted vaginal intercourse.

The newspaper is not naming the alleged attacker because he has not been criminally charged. He didn't respond to phone or Facebook messages seeking comment.

"I froze and there were parts of the night where I couldn't fight because it's not an option," said Tubbs, who was a senior resident assistant at the school.

Two days later, Tubbs reported the alleged assault to campus police. She said she was told she would need to undergo a rape examination at Stony Brook University Hospital, after which she could return and file a formal complaint.

Two weeks later, Tubbs said she filed a formal complaint. The officer with whom she spoke told her she didn't have a viable case, the lawsuit says, "because she did not scream 'No,' or violently fight back." The officer told her she could consult with the District Attorney's Office, but said that prosecutors would likely have the same opinion, so she declined, she said.

Tubbs proceeded with a university disciplinary action, she said, because she wanted her alleged attacker to "know he did something wrong" and receive "some type of justice."

University officials interviewed the alleged attacker, talked to witnesses and reviewed surveillance video, according to Tubbs. But she said she was told a week before the hearing that she would have to prosecute the alleged attacker herself. Tubbs had to create exhibits, write an opening statement and pursue witness testimony, preparation that she said took 60 hours.

"I would say the hardest part was hearing his voice because it's the voice I hear in my flashbacks," said Tubbs, who was separated from her alleged attacker by a paper screen during the five-hour disciplinary hearing last May. She said there were no police or security officers present, adding to her anxiety. "One of my biggest concerns ... was that he would get aggressive and retaliate," she said. She also was forbidden to bring her therapist to the hearing.

"My world fell apart," Tubbs said during a recent interview at the Ossining office of her lawyer, Amy Attias. Following the attack, she said, she was diagnosed with post-traumatic stress disorder. She brought her therapy dog, Fiona, to the interview.

The alleged assailant, who maintained the sex was consensual, was found not responsible at the hearing.

At the time of the attack, Stony Brook's policy on sexual misconduct spelled out that consent cannot be given if a person's judgment is impaired by alcohol or if she or he loses consciousness.

Tubbs was granted an appeal by the university in August, based on a finding that the disciplinary board didn't properly consider the definition of consent to weigh whether the sex was consensual.

A university official, Jay Souza, wrote in a letter to Tubbs that "he found no evidence that the Hearing Board considered the definition of consent" as spelled out in the university's student conduct code or applied that definition to "the facts of this case," the lawsuit says.

Souza said in the letter that Tubbs would be contacted by the university about the next steps, but Tubbs said she hasn't heard anything, despite her own efforts to reach school officials.

How to define consent — and how to prevent and respond to sexual assaults on campuses — are issues colleges across the country are grappling with, as sexual-violence victims seek redress under Title IX.

In New York, state-operated public campuses, including Stony Brook, agreed in 2013 to modify their sexual-assault policies to align with each other and with Title IX, following a review by the U.S. Education Department's Office of Civil Rights.

In December, SUNY adopted a sexual assault policy that created a uniform definition of consent: a clear, voluntary agreement between participants to have sex. Under the definition, silence or lack of resistance is not considered consent, and consent cannot be given when a person is under the influence of drugs or alcohol.

The definition further states that "consent may be initially given but withdrawn at any time. When consent is withdrawn or cannot be given, sexual activity must stop."

The policy also provides a sexual-violence victim/survivor bill of rights and establishes training for campus police officers — whom Tubbs said rushed her interviews and showed "a disregard for the emotional state I was in" — and school administrators — whom Tubbs claims have ignored her requests for help and for follow-up information concerning her case.

Stony Brook is one of 11 colleges and universities in New York and 94 nationally that were listed last month as having pending Title IX sexual-violence investigations. University spokeswoman Lauren Sheprow declined to comment on Tubbs' lawsuit, but said the school "takes all reports of Title IX violations very seriously and is committed to the prevention of sexual assault and violence on campus."

Sheprow declined to say whether Stony Brook plans to require sexual assault victims to cross-examine their attackers at disciplinary hearings in the future. The practice is not addressed in the new statewide policy. Casey Vattimo, a spokeswoman for the State University of New York system, said she could not comment because of pending litigation.

Stephen Thompson, the sexual aggression services director at Central Michigan University, who trains university employees how to recognize and report sexual assault, said requiring Tubbs or any victim to question her alleged attacker at a hearing is "about as absurd as you can possibly get." Such practices deter sexual-assault survivors from coming forward, he said.

"The harder you make it on a survivor, the less likely they're going to stay with a complaint," Thompson said.

Tubbs claims in her lawsuit that Stony Brook's failure to address her rights as a victim of sexual assault is part of a broader pattern of Title IX "compliance deficiencies" at SUNY colleges and universities.

Some colleges have been overwhelmed trying to comply with federal requirements, said Kiera Pollock, a sexual assault expert who made recommendations for the SUNY policy.

For Tubbs, who graduated from Stony Brook in May and is now studying for her master's in social work at Hunter College, the policy is too lax, as it doesn't specifically outlaw the practice of having victims confront their attackers at disciplinary hearings — or require colleges to provide victims of sexual violence the help they need to access the criminal justice system.

"I don't think it's the rape that makes the person a victim," said Tubbs. "I think it's the systemic failure that makes someone from a survivor to a victim. ... I can honestly say I won't stop fighting until those systems change."