There's a lot of outrage going around over a request from Virginia Wesleyan College (VWC) that a former student who claims she was raped now provide a list of past sexual partners and boyfriends. After reading briefly about the case, I was set to write a short post reminding people how campus rape investigations—which Reason frequently criticizes for trampling the rights of the accused—are also absolutely awful for sexual-assault victims (and potential future victims). And at first blush, this case does seem to show that: after VWC found the accused guilty of sexual misconduct and expelled him, it subsequently changed his status to "voluntarily withdrawn" in order to "assist him in seeking further studies."
The victim told The Huffington Post last summer: "I kept thinking, they let him go to another school. What if he rapes someone else? I started feeling guilty, like maybe I should've gone to police, so maybe he would've been arrested."
This paradox is one of many reasons why treating campus rape as an academic infraction rather than a serious criminal matter makes little sense.
But there's much more to this story than what's being reported by The Huffington Post and ran with by other online media. For starters, the victim—identified only as Jane Doe—has filed a civil lawsuit against the college, alleging gross negligence and seeking $10 million in damages. It's in this lawsuit—not the initial rape investigation—in which VWC is seeking to compel Doe to identify "any individuals with whom (she has) had sexual intercourse at any time and… any individuals with whom (she has) had a romantic relationship" since the alleged assault. The school says this is necessary to determine Doe's credibility in regard to the trauma she says she's suffered and whether she was, as claimed in the school hearing, a virgin before the attack.
Why should Doe's virginity matter to the case? It doesn't per se. But Doe testified (of her own accord) during a school adjudication hearing that she had been a virgin before the rape. The college claims to now have "a good faith basis for believing" that this was not true. While her virginity or lack thereof has no bearing on whether she was raped, lying about her virginity unprovoked might not bode well for her broader credibility. The school states that "if they knew (Doe) had provided false testimony" during the hearing, campus officials may have come to a different conclusion in the original case.
Let's take a look at that original case now. It started in August 2012, when Doe entered her freshman year at Virginia Wesleyan College, a private, Methodist Church-affiliated school located in Norfolk, Virginia. According to Doe's lawsuit against VWC, she and several other freshman women went to a party at an upperclassman's on-campus townhouse following a mandatory orientation seminar on the third day of school. At that party, Doe, then 18, was given (and took) a shot of vodka that turned out to have been drugged, and "several other girls at the … party were also provided with spiked drinks." When she and her friends began to feel "dizzy and lightheaded," they decided to return to their dorm rooms.
"Her assailant, Zachary Kane, began following them," the suit claims. After depositing her female friends at their dorm, Doe continued walking, with Kane continuing to follow her, until she became nauseous and felt like she was going to pass out. At this point Kane, then 19, "grabbed her and began fondling and kissing her," and Doe "was unable to fight back because she had been drugged," the suit states. Kane then purportedly "grabbed her arm and forced her back to his dorm room" where he "repeatedly and brutally raped, sodomized, and forced (Doe) to orally copulate him until she vomited, for approximately five hours." When she left, Doe was "battered, bruised, and bloodied" and "her shorts, once white, were now crimson with her own blood."
By the end of the 2013 school year, Doe had dropped out of VWC and entered in-patient treatment for anxiety, post-traumatic stress disorder, and depression. In fall 2014, she filed a lawsuit against the school in Norfolk Circuit Court, claiming VWC was negligent in its duty to prevent students from being sexually assaulted, fraudulent in representing itself as a safe place for female students, and negligent in its response to the assault. As a direct result of this negligence, the lawsuit states, Doe "suffered excruciating physical injury and pain, and has and will suffer extraordinary psychiatric injury."
In echoes of Rolling Stone's article about the now-infamous University of Virginia (UVA) rape case, Doe's lawsuit suggests that "the college knew that male students were drugging female students, rendering them incapacitated, and raping them, and yet did nothing." Furthermore, campus police should have been able to recognize Doe's "helpless condition" when she entered Kane's dormitory and intervened, it says, and so should have the campus security guard who saw her passing by afterward with bloody shorts.
"Virginia Wesleyan College has carefully reviewed the facts of this unfortunate incident and the allegations in Jane Doe's Complaint," it said in a statement last fall. "While the College sympathizes with Jane Doe, Virginia Wesleyan denies any allegation of improper conduct and will vigorously defend this lawsuit." It declined to make any further comments as long as the case was ongoing.
Virginia Wesleyan to blame?
Taking all of this at face value—and as you'll see in a few paragraphs, there may be reason not to—I want to challenge the idea that the school is somehow responsible here. That Doe went to a party and consumed alcohol procured by a stranger in no way makes her to blame for being attacked—that lies squarely with any persons who drugged or attacked her. But how could VWC have possibly pre-intervened here? Short of banning students from socializing without chaperones, that is.
Underage drinking is already prohibited on campus; students do it anyway. Furthermore, the freshman orientation Doe had just attended specifically warned students to be wary about going to parties where alcohol was served for the very reason that assailants may provide "drinks spiked with drugs to facilitate rape and other sexual assaults."
Again, that Doe went to a party and drank despite this warning does not make it her fault if she was raped. But neither is it the fault of the college for not somehow stopping the party from occurring, stopping Doe from attending, or stopping individual nefarious actors from acting nefariously there. Campus administrators cannot reasonably be expected to keep watch over all student activities at all times. And acknowledging this reality is not, as Jezebel and others have so frustratingly portrayed it, the same as the school saying it has no responsibility to protect students from sexual assault.
In fact, the school seems to have been well aware of that responsibility, hence the mandatory orientation that discussed these issues and the undisputed presence of school security officers around campus. Doe apparently passed several of these officers on her way to and from Kane's dorm room. Why didn't she try to get their attention on her way in? Or reach out to the officer she saw upon leaving? I don't mean to suggest that not doing so invalidates her assault claims; there are certainly plausible reasons within the realm of Doe's story—incapacitation, shock—why she may not have. But it's absurd to suggest these campus cops, who must see hundreds of drunk kids entering and exiting dorms every week, acted negligently in not simply sensing something was amiss in this case.
Doe's lawsuit alleges that high levels of sexual violence on the VWC campus mean the security officers should have been more suspicious, and that all intoxicated young women should be regarded as "imminently" likely to be assaulted. VWC had "the highest rate of on-campus sexual assaults" of any school it Virginia, it notes.
For 2010, that meant a total of six reported sexual assaults at VWC, according to Department of Education data. In 2011, zero sexual assaults were reported and in 2012, there were three. Virginia Wesleyan is a small school, with only about 1,300 students at any time, so that works out to a sexual assault rate of about 0.2 percent.* Even making the fair assumption that there are more assaults than get reported, the picture is hardly one of a rape culture so widespread that school officials should treat every freshman female as one party away from being attacked.
Doe's original story
And yet… if the campus cops were right there, how is it that they couldn't tell Doe was being forced into Kane's dormitory? Perhaps because that's not what happened.
In a February 2013 Title IX hearing before the school's Community Arbitration Board, Doe initially shook her head "no" when asked if she wanted to go back to Kane's dorm, according to a transcript. But she followed that with, "I mean, it's not like he dragged me." Later in the hearing she stated that walking back to Kane's room was a mutual decision, but on the walk, Doe got dizzy and stopped. "Then when he walked away I kind of just went with him, not really thinking about where I was going," she told the board (emphasis mine). "I knew I was going back to a room. I ended up just going with him."
Going back to Kane's room willingly certainly doesn't mean Doe consented to sex. But it is one of several discrepancies between her original testimony and her current lawsuit against the school.
Doe told the board she may have willingly kissing Kane in the dorm hallway. But then "there's like a half hour that I can't remember," she said, and the rest of the night has only come back to her "in pieces." Doe told the board she definitely said no "at least once" before "checking out": "I said, 'This really hurts; can you please stop?'" Doe told school officials. "The main thing I said was, 'This really hurts.'" She said she tried to leave when Kane went to the bathroom but was too dizzy, eventually exiting the room after he fell asleep.
Kane disputed Doe's version of events at the hearing. Noting that he was not the one who provided her with the allegedly spiked drink (something Doe does not dispute), Kane claims the two participated in consensual sexual activity, including intercourse, for about 45 minutes. He apologized for any pain he might have caused Doe, but insisted that he was neither aware she had been drugged nor that she didn't want to have sex with him.
Reading a transcript of the hearing is incredibly frustrating. Time and time again, administrators stop cold on lines of questioning that would seem to prompt further probing. They fixate on weird things, like pinning down exactly how much blood may have been on the sheets. They question Kane about how many women he has kissed since starting college, how many women he has had sex with, how often he has sex, and how long it generally takes him to ejaculate. When asking why he'd offer to help with Doe's medical bills if he wasn't guilty, one board member wonders if this is a "you break it, you buy it" situation.
There is never a concrete determination that Doe's drink was spiked. "I don't have any proof it was drugged; I just heard that it was from other people," she says. Officials ask her if she saw the shot being poured from the bottle (she did) and if she saw anything put in it (she did not). "They were saying it was in the bottle," she adds.
This seems like an area where a little probing could have made a difference. But they don't even so much as ask whom else she saw doing shots—was it solely freshman girls drinking from this bottle?—let alone about other party guests whom they might talk to. If an entire bottle of vodka was drugged and served at a party, it would seem someone else would have felt something.
The school officials also spend a good deal of time trying to reconcile Doe and Kane's diverging timelines: Was she there for 45 minutes or 5 hours? But rather than consult campus security cameras, which must exist somewhere around the dormitories; interviewing Doe's friends (whom she was with right before the incident) and roommate (whom she saw right after); or questioning security officers who may remember something, the school simply tries to talk Doe and Kane through their conflicting accounts. Unsurprisingly, no conclusion is reached.
Police report filed
Not long after the campus hearing and Kane's dismissal from VWC, Doe filed a police report with the Virginia Beach Police Department (VBPD). In the report, Doe said Kane fisted and sodomized her, in addition to raping her vaginally, and "she tried to tell (him) to stop and push him off of her but she was too physically incapacitated as a result of the drugs." It was only after beginning counseling that Doe "remembered more details of the assault," the police report states.
It also includes info from a medical examination that police requested. By this point, any physical evidence of trauma that may have existed was gone. During the examination, however, "it was found that (Doe) had a consensual sexual encounter 10 days after the reported sexual assault occur ed and therefore it could not be determined whether or not (a urinary tract infection she contracted post-assault) could be a result of the reported sexual assault or the consensual sexual encounter."
No arrests were made. Associate Commonwealth Attorney Kari Kopnicky declined to go forward with the case "based on no reasonable likelihood of successful prosecution."
"There was enough probable cause to obtain a warrant and make an arrest," Lieutenant John Gandy of the VBPD told me. But there was "not enough evidence to successfully prosecute the case," and so Kopnicky declined to take action. Gandy stressed that it was "not because she didn't want to."
The $10 million question
Doe's attorney, Jonathan Halperin, said they won't provide the school with information about her sexual history unless the court orders it. "This is a drug facilitated rape of a freshman woman on her third day of orientation by a stranger," Halperin told The Huffington Post. "To ask the victim in discovery to name every sexual partner and romantic interest she has ever had is irrelevant and outrageous and totally inappropriate. It is intended to harass and intimidate the victim."
"VWC acknowledges that Plaintiff's sexual history is a sensitive subject," the school states in its motion to compel the info. "However… Plaintiff has put her sexual history at issue by arguing she is unable to have sex, does not have any interest in sex, and has experienced difficulties in romantic relationships due to her inability to have sex and lack of interest in sex. Given the significance of these claims in a case where $10 million is at issue, VWC feels compelled to explore Plaintiff's sexual history."
In her lawsuit against the school, Doe claimed she was in "severe pain" for at least a month after the incident. Pointing to the police report finding about Doe having sex soon after the rape, the school states: "If Plaintiff was having sexual intercourse during this period, it calls into question (or provides an alternative explanation for) her claim that she experienced severe pain when using the restroom." As to requesting the names of her post-assault boyfriends, VWC says it gets to Doe's stated inability to now carry on normal relationships.
No one wants to go back to the bad old days when women's sexual histories were randomly relevant to rape investigations. And we won't, because rape shield laws prevent such info from being used to discredit victims in criminal cases. But this is a civil trial, where the payoff may be bigger but the rules are different too.
Besides, the crux of this case isn't whether Doe was assaulted—which the school does not really dispute—but whether VWC is complicit in the assault and, if so, the extent of the damages Doe is owed for her suffering. Perhaps the info VWC seeks about Doe's romantic life is overly broad, but it's certainly not irrelevant to the questions at hand. "VWC has conferred in good faith in an attempt to resolve this dispute without Court intervention," it claims in the lawsuit. "Unfortunately, these attempts have proven fruitless," and since the matter is now before a civil court the information in question is discoverable "and should be produced."
Regardless of how this all turns out, the story already embodies everything that's wrong with colleges handling violent assault cases. First, we have a student who feels her rape allegations were diminished by the school, causing her even more distress. Second, we have someone accused of assault whom, if innocent, was wrongly kicked out of school and branded a rapist without ever having the chance to mount a real defense and, if guilty, was merely kicked out of school and not subject to punishment, a criminal record, or any measures that may limit his ability to commit future assaults. And finally, we have a college now forced to spend time and money defending its lack of crime precognition while also dragging a former student's sexual history into the public record. Why do so many people find this preferable to leaving rape cases to the criminal justice system?
Let's let colleges provide student rape victims with encouragement and help in filing police reports and getting forensic exams; post-assault STD testing, etc., at the student health center; counseling and student support groups; and perhaps adjudication in limited, less-serious cases (public health professor Mary Koss has some interesting ideas on the latter here). Let's raise awareness among students about how waiting to file a rape report reduces the chances of future prosecutorial success. And if law enforcement still isn't spectacular at handling sexual assault cases (and it isn't), then let's work on reforming this system for rape victims of all education levels and socioeconomic statuses.
* Corrected; originally said two percent.