Subsequent to the Rolling Stones article and the calls for reform of the Sexual Misconduct Policy, please find below some of the egregious pitfalls the system, particularly the formal hearing procedure, currently imposes on survivors. These recommendations are from a UVA survivor who reported her rape to the police and to the University, in particular to Dean Eramo and Dean Groves, and who received no justice whatsoever, but who, on the contrary, felt more victimized and alienated by UVA. Institutional victimization can be equally damaging as rape, and I hope these points are kept in mind changing policy for future survivors.

This is by no means an exhaustive list, just a starting point.

This is also not meant to discourage survivors to report crimes committed against them. These are just policy recommendations to (hopefully!) improve the process. No one needs to listen to them, they are just here for you all to consider.



Current UVA Sexual Misconduct Policy

The UVA Hospital/SANE Nurse Examination

This has not been widely discussed, but the UVA Hospital does not release photos taken by the Sexual Assault Nurse Examiner (SANE), when victims of sexual assault come in to be examined.

In one case, a victim was examined by Nurse Kathryn Laughon, a SANE nurse (who also happened to be the then-Chair of the Sexual Misconduct Advisory Committee, a UVA Nursing professor and the wife of the then-Deputy Commonwealth Attorney). The SANE Nurse gave conflicting reports to the victim and her mother when the victim was examined and to the hearing panel. To the victim’s mother, she stated that injuries had been sustained. To the panel, she wrote that there were no signs of sexual activity. When the victim, confused, requested the photos from the UVA Hospital, the Hospital claimed it did not have the pictures, implying they had either been destroyed or lost. By her own admission in a Hook article in 2011 Nurse Laughon stated she is the only SANE nurse is the first contact for UVA student victims of rape.

“Laughon, who is often the first point of contact for a woman who has experienced a sexual assault and decided to report it” (http://www.c-ville.com/UVA_nursing_conference_explores_health_impact_of_intimate_partner_violence/#.VG_8kMl5XfA)

“[The UVA victim] sought treatment and went to police within a week, but according to the complaint, key information gathered by UVA forensic nurse Kathryn Laughon was never presented to the University’s Sexual Misconduct Board when Doe’s case went before them months later. Missing were descriptions of symptoms of drugging and photos of the interior of her vagina described in one of Laughon’s earlier reports, the complaint says. Marsh said it was his understanding that the ultimate lack of forensic evidence also scuttled any hopes of prosecution in the case.” (http://www.c-ville.com/allegations-of-a-botched-uva-rape-investigation-at-center-of-a-challenge-to-the-campus-save-act/#.VG_9Q8l5XfA)

First, the UVA Hospital needs to have a safe system to document photos taken during SANE examinations. The victim should be allowed to look at the photos and get a copy, as they are photos of HER body, and the victim should be entitled to an explanation of the injuries or lack of thereof.

Second, there should be multiple SANEs examining UVA victims, not just one. Nurse Laughon’s strong ties to UVA present a huge conflict of interests.

It is important to note that no UVA student has ever been criminally charged with rape or sexual assault in the past decade. Something in the system is clearly broken.

No Contact Order

No Contact Orders basically mandate that the complainant and the accused cannot communicate by any means and will be subject to further disciplinary action if he or she violates the No Contact Order.

The deans do not enforce this policy all of the time. In one case, the accused gave Dean Eramo a letter for the complainant. Instead of telling the accused that she could not give the complainant his letter, Dean Eramo told the complainant she could pick up the letter if she wanted to. The letter stated that the complainant was wasting her time going through a hearing and should give up. This was traumatizing to the complainant.

No Contact Orders should be enforced, and Deans, out of all people, should not facilitate the violation of No Contact Orders.

The Investigation

Current rules: “When the complainant indicates a desire to pursue Formal Resolution, the Dean will prepare and forward the complaint to the Vice-President’s Office for an investigation by such person or persons (the “Investigators”) designated by the Vice-President. The investigators typically include a trained attorney and a mental health professional, both of whom have received annual training that draws on professional and expert resources. The Investigators are neutral fact-finders, who, during the course of an investigation, typically conduct interviews with the complainant, the accused student, and each third party witness; visit and take photographs at each relevant site; and, where applicable, coordinate with law enforcement agencies to collect and preserve relevant evidence. The completed investigative report includes, among other things, summaries of interviews with the complainant, the accused student, and each third party witness; summaries of interviews with expert witnesses . . .; and a detailed written analysis of the events in question. A typical investigation will be completed within 60 days (2 months), if not sooner. The Investigative Report will be distributed, concurrently, to both of the parties and to the Dean. If a hearing is held, the Board Chair and the Panel will also be provided with a copy of the Investigative Report.”

In reality,

The Investigators are not neutral fact-finders. Both investigators, Susan Davis and Suzan Garson, work for the Associate Vice President for Student Affairs and, therefore, for the University.

Not only are the Investigators agents of UVA, but there has been an instance where the accused student’s lawyer monitored the investigation. The survivor in that case found out when she read the Investigators’ notes after the hearing.

There is too much discretion given to the Investigators to pick and choose what goes into the Investigative Report. The Investigators only include testimonies they deem are “relevant.” They do not inform the parties of the content of other witnesses’ testimonies, not do they provide an adequate explanation as to why the excluded testimonies were in fact excluded. The Investigative Report is consequently extremely biased for the accused. In one instance, the Investigators understood that, because the complainant and the accused had “made out” at a party, the complainant was “interested” in the accused, making it normal for the accused to believe the complainant wanted to have sex. This is victim-blaming and should not be tolerated.

The Investigators have intimidated some witnesses in the past and made them feel uncomfortable. Rape is already a sensitive topic, and Investigators should be mandated to make witnesses feel as comfortable as possible and not to victim-blame.

The Investigators need to also be trained in how not to victim blame and victim shame.

The Investigators are not very supportive of the survivor. One survivor was told that the accused didn’t seem that bad, seemed very sorry, and that her accusations had disturbed him. They went on to state that he had trouble falling asleep at night, without considering how broken survivors can be at such a time. This is victim shaming and it should not be tolerated.

Incapacitation

Current rule: “ ‘Incapacitation’ means the physical and/or mental inability to make informed, rational judgments. States of Incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol [or other drug] is involved, one does not have to be intoxicated or drunk to be considered Incapacitated. Rather, Incapacitation is determined by how the alcohol consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. The question is whether the accused student knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was Incapacitated.”

While this policy sounds good, it is not applied properly. In the past, Dean Eramo has said that if the accused student didn’t realize the complainant was incapacitated, then the Incapacitation standard was not met, despite third-party “reasonable person” observations.

That is not how this rule should be applied. It reads the following way: if the accused student knew the complainant was incapacitated, then the student was incapacitated. If the accused student says he didn’t know the complainant was incapacitated, third-party witnesses of the complainant’s behavior and actions (e.g. she was stumbling, she was falling asleep, she was slurring her words, she was drinking, etc.) should be the standard for determining whether someone was incapacitated or not.

Otherwise, the accused student can always state he didn’t know the complainant was incapacitated and he will not be held accountable for his actions.

Advisors to the Parties

Current rule: “Both the complainant and the accused student have advisors present to support and assist them during the pre-hearing, hearing, and appeal stages of the Formal Resolution process. The Board Chair will appoint to each party an advisor who has completed the training required by the University; however, a student may select and arrange for a secondary advisor, but such secondary advisor may not be an attorney during a hearing). The Board Chair may disallow a particular advisor in cases where such advisor might be a witness or where such advisor’s presence, in the Board Chair’s sole determination, would be obstructive to the process or for other good cause. An advisor may not direct questions in writing to the Panel or witnesses at the hearing, but may consult with the student that he or she is assisting. The Board Chair will not allow an advisor’s presence to inhibit the parties’ sharing of information or the conduct of the hearing.”

In reality,

In one case, one survivor asked Dean Eramo if she could have her mother or a friend present with her for support in the hearing room, as she had been recently diagnosed with Post-Traumatic Stress Disorder (PTSD). Dean Eramo refused, stating that it would be too prejudicial to the accused. The survivor had to face the accused alone, with her advisor, Dean Laurie Casteen, who didn’t present adequate support for the survivor.

All known advisors are agents of the University, often deans. This can present a conflict of interest. Advisors should be people that complainants can fully trust, and the complainant should have more of a say as to who gets to support her in the hearing especially considering advisors cannot talk during the hearing anyways. Not receiving appropriate support during a hearing can inflict a lot of damage to the victim.

Pre-Hearing Meeting

Current rules: “The Chair will schedule a pre-hearing meeting prior to the hearing date. At the meeting, the Chair will review hearing procedures with the parties, separately or jointly, at the discretion of the Chair. The Chair will also review the complaint of alleged Sexual Misconduct (and related misconduct, if applicable,) and review the parties’ respective lists of proposed witnesses to assist them in eliminating redundant information.

This rule is vague and does not explain what a pre-hearing entails. It entails the complainant and the accused sitting in the same room, at the same table, with Dean Eramo. Both students debate the relevance of their respective evidence, and Dean Eramo decides what evidence can make it to the panel. Admissible evidence is at her sole discretion which gives her the power to suppress any evidence that might prove the guilt of the accused. There are no “rules of evidence” in the procedures and it is at her whim.

This gives Dean Eramo too much power to influence the outcome. Also, having both students debate each other is an awful idea and further traumatizes the victim.

The Hearing

The Panel

Current rules: “The Sexual Misconduct Board (or the “Board”) is a standing group composed of students, faculty and staff appointed by the Vice President, who also appoints the Board Chair. The Board Chair will ensure that all Board Members receive annual training in their responsibilities that draws on professional and expert resources.”

In one case, the Panel was made up of three University staff and two students who were involved in the student government. The Panel was poorly trained and asked the complainant the following questions: “How do you remember being raped if you were blacked out?”, “Are you on medication?”, “Have you had visions or hallucinations before?”, “Is it possible that it hurt because it was your first sexual experience?”, “Did you make sure he understood your “no”? Did you say it forcefully enough?”

A trained panel should never engage in such victim-blaming behavior, and better training should be provided to people who are on such panels.

Also, it is extremely awkward to bump into a student who has sat on your rape hearing, in class or such, so it might be a good idea to consider asking grad students to participate on these panels, to spare the complainant from further discomfort. Eramo should not be the one who picks the members of the panel. UVA administrative staff should not be allowed to be panel members. Tenured staff are ideal to minimize the University’s influence on their decision, as a safeguard.

The Seating Arrangement at the Hearing.

Currently, the seating arrangement is not defined in the Sexual Misconduct Policy. Just throwing this out there, but seating a victim diagonally across the rapist, at the same table, might make the experience more traumatic than it already is. There is a reason why courtrooms do not allow this. Also, this catches victims by complete surprise and contributes to silencing them at their own hearing.

If the complainant is specifically sworn in, the accused should also be specifically sworn in.

In one hearing, the complainant was specifically sworn in on her honor before the hearing, while the accused was not. This should not be the case. The complainant should not be presumed to be a liar. Both parties should be treated equally.

The Decision

Dean Eramo/the Chair should not be present during the deliberation of the panel, just as a judge is not present during a jury’s deliberation in a civil court. She should not be able to influence the panel. She should not be the one who writes the decision nor sign the decision. All decisions should be written by the panel and SIGNED by the panel.

The Appeal Process

To start with, can we make the appeal rules easier to find?!

Second, can we stop assigning undergraduate students as advisors for the appeal process? They cannot commit 100% to you when they have their own lives as students going on.

Third, can the appeal rules explicitly state how a complainant can appeal a hearing decision? Because most of the appeal rules are written for the accused to appeal, not the complainant.