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Justin Pope, AP Education Writer, Published April 23 2012

South grad, former UND student at center of how colleges handle sexual assault reports

For much of its 40-year history, the federal education gender-equity law known as Title IX has made headlines mostly on the sports pages.

But over the past decade or so, Title IX has shifted onto a different patch of contentious terrain: sexual assault on college campuses.

The change is transforming how colleges, including those locally, must respond to sexual violence. Pushed by a series of past court decisions and, more recently, guidelines published by the Obama administration, colleges no longer can simply turn sexual assault reports over to police. They must investigate themselves and face detailed requirements on how to do so.

Victims’ advocates welcome what they call an overdue push for colleges to take seriously a problem they’ve long swept under the rug. They also say Title IX has reframed the entire discussion about sexual violence on campus.

But Title IX’s expanding role in campus sexual assault cases has proved contentious, even among victims’ advocates.

Former Fargo South grad and University of North Dakota student Caleb Warner is one person who has seen the flip side of Title IX enforcement.

But Title IX’s expanding role in campus sexual assault cases has proved contentious, even among victims’ advocates.

Former Fargo South grad and University of North Dakota student Caleb Warner is one person who has seen the flip side of Title IX enforcement.

Kangaroo court?

It was finals week in 2009. Warner says a fellow student with whom he’d hooked up before, and whom he’d been texting with ever since, invited herself over.

They had sex – consensual, he insists – but after she departed the next morning, she stopped responding to his calls and texts, and he let it drop.

A few weeks later, an administrator pulled him from class. He’d been accused of rape, and would have to face charges in the campus disciplinary system within 10 days.

What followed, as Warner and his mother describe it, was a “kangaroo court” campus trial where a hostile administrator attacked Warner’s witnesses as just standing up for a fraternity brother. He was found responsible and kicked off campus – and banned from any state school – for at least three years.

Warner is hardly the only student accused of sexual misconduct to claim unfair treatment. But his case took an unusual twist. After his quick campus trial, a Grand Forks police detective began investigating possible criminal charges against Warner. According to a police report, the detective caught Warner’s accuser in a series of lies about the incident and her previous communications with Warner. Multiple witnesses contradicted her story.

Eventually, the police brought charges – against her.

Still, for months, UND refused to reconsider Warner’s case, arguing the results of the police investigation did not amount to “substantial new information.” It wasn’t until last October, after a campaign led by Warner’s mother was starting to inspire critical letters from alumni, that the university relented and overturned Warner’s sanctions.

Not that Warner plans to return to UND.

“I’m actually a big Bison fan now,” he says.

He’s driving a Fargo delivery truck for a shipping company, trying to pay back his family’s legal bills, and unsure if he’ll ever return to college.

Warner’s accuser has since left the state; a warrant is open for her arrest.

UND said it couldn’t comment specifically on this case, but takes seriously its obligation to balance student safety and the rights of the accused.

Applying standards

Last April, the Department of Education’s Office for Civil Rights sent colleges a “Dear Colleague” letter, explaining its interpretation of Title IX and outlining colleges’ responsibilities in confronting sexual assault. The 19-page letter was the first to address directly how Title IX applies to sexual violence, not just harassment.

Colleges must provide “due process” for the accused, such as giving both complainant and accused timely access to relevant information. But the focus is protecting the accuser.

Schools must act promptly to investigate and not wait for a criminal case to proceed. If necessary, they must take interim steps to protect the complainant before a verdict is reached, such as separating the accused and accuser in classes and dorms, with any burden of inconvenience falling on the accused. And they must resolve cases promptly, so they can’t delay messy cases until the parties have graduated.

Also under the OCR guidance, colleges must judge Title IX cases under a standard of “preponderance of evidence.” That standard, common in civil law cases, means schools must conclude only that there is a 50.1 percent chance the accused is guilty to find him responsible.

Courts have long granted colleges leeway to use lower standards of proof because they are educational proceedings enforcing college rules, not criminal laws. Even before the recent guidance, a majority of colleges were already using the standard of “preponderance” in sexual assault cases.

Without the preponderance standard, it can be difficult for colleges to remove rapists.

“The ability to get to proof beyond a reasonable doubt, which is the criminal standard, when you have two people who did something behind closed doors where there were no eyewitnesses and probably a lot of alcohol, it’s incredibly hard to prove,” said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management, which advises colleges on Title IX.

Improved response

Alison Kiss of the group Security on Campus said it remains all too common that students don’t know their Title IX rights, and that colleges tend to fail to inform them (a re-authorization of the Violence Against Women Act now pending before the Senate would expand colleges’ responsibilities to do so.)

Many colleges still aren’t doing enough, Kiss said. But she said the OCR letter has prompted many to improve their training and response.

She has mixed feelings about such cases being resolved on campus instead of the courts. But, until prosecutors prove more willing to take such cases on, colleges must offer victims an alternative, or they will be driven from school.

Kristina Ponischil, for one, was grateful her school had the tools to move aggressively to remove her assailant after police wouldn’t act and that an administra-tor there gave her the help she needed to heal.

After Ponischil was raped at a party in her off-campus apartment at Western Washington University, police wouldn’t act, as often happens in college towns with “he said, she said” accounts of alcohol-influenced student encounters behind closed doors.

Despite a restraining order, she kept encountering her assailant on campus.

But when she finally told an administrator, the school sprang to action, offering her support. The campus judicial system, using a lower standard of proof than criminal courts, suspended her assailant, removing him from campus until she graduated in 2009.

“I was able to start healing,” she said.

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