Sexual Assault: What can Title IX really do?

Author: Hunter Kuffel and Cassidy McDonald

Sexual Assault: What can Title IX really do?

"I was raised where the song I was sung to sleep was the fight song,” Jessica* says. Her family life revolved around Notre Dame. “I grew up listening to it. I grew up watching it.”

But her opinion of Notre Dame changed completely after she reported a sexual assault. She says the system failed her. Now, she says, “All I have is hate.”

Jessica was a student at St. Mary’s College for less than a year, but what happened in South Bend from 2013 to 2015 will follow her the rest of her life. She says after she was assaulted she transferred to a different university because her assailant threatened her.

But while she tries to start over at a new school, she says Notre Dame won’t hold a hearing to determine whether her assailant is responsible for her rape. Her case was so highly contested that it may have prompted a recent change in Notre Dame policy.

When she decided to report her assault to Notre Dame, she was told, “It will be easier on you to go through the school,” she says, “but what they don’t say is that the school doesn’t do anything.”

So Scholastic decided to look at Notre Dame’s sexual assault policy. What does the school have the power to do, and how do procedures hold up to scrutiny?

In 2015, according to the university’s student climate survey, six percent of female students reported experiencing nonconsensual sexual intercourse — in other words, rape, a felony crime — during their time at Notre Dame. An additional 19 percent reported experiencing some other form of nonconsensual sexual contact.

The results of this survey, which had a 38 percent response rate among Notre Dame students, can be extrapolated. If this percentage holds true for the entire student body, at the time of the survey, over 350 female students were raped during their Notre Dame careers, and about 1,472 current female students experienced some form of nonconsensual sexual contact while at Notre Dame.

During the 2015 calendar year, the university received 12 reports of rape and nine reports of forcible fondling. Heather Ryan, the school’s Deputy Title IX Coordinator, says, “It is well known that, throughout our society, instances of sexual violence are underreported.” A 2014 study conducted by the Department of Justice says only 20 percent of female college students file a report after being sexually assaulted.

Ryan declined to comment on the number of sexual assaults reported so far in 2016.

*Jessica’s name has been changed to protect her privacy.


What Happens When a Sexual Assault Is Reported

The university’s strategy to fight sexual assault is split into roughly three areas: prevention and education, the Title IX process, and support programs for survivors.

Survivors can report sexual assault to the university, to local law enforcement or both. Only criminal prosecution through the county can lead to the attacker being convicted of a crime and serving time in jail or prison. The Title IX process is administrative in nature, and the harshest punishment available is expulsion.

While the university encourages survivors to report to both the university and to law enforcement, there are several places on campus where a conversation about a possible assault will not lead to an official report, according to the university’s Title IX website. These include the University Counseling Center (UCC), University Health Services (UHS) and Campus Ministry.

If survivors want to file an official report, they can speak to Heather Ryan, the Deputy Title IX Coordinator. Students can also speak to any faculty or staff member, any residence hall staff member or an NDSP officer, and those conversations would be forwarded to Heather Ryan.

Once a report is filed and the survivor decides to move forward with the process, Ryan will issue no contact orders for both the complainant (the survivor filing the report) and the respondent (the person accused of a violation). A no contact order means that neither party may attempt any contact whatsoever with the other party. All phone calls, text messages and email are forbidden. If a respondent has a class with a complainant, arrangements can be made to separate the two.

Ryan will also assign resource coordinators to both parties. Resource coordinators are staff members in the Office of Student Affairs who help both parties understand the Title IX process and provide support if necessary.

 At this point, the Deputy Title IX Coordinator begins an administrative investigation with the complainant’s permission. This is typically carried out by external investigators but coordinated by the university. If a complainant requests not to move forward with an investigation, a board made up of members of the Office of Student Affairs will review the report to determine if an investigation is crucial for the safety of the student body or if the complainant’s request can be honored.

Investigators try to gather as much information as possible, mostly through interviews with the complainant, the respondent and any witnesses, says Ryan.

Ryan will review the results of the investigation and decide whether the information leads to a potential violation of university policy. “More times than not, [it does],” Ryan says, “because we’ve already got that initial allegation. Then I will talk to the complainant and ask whether or not that person wants to move forward with a conduct process.”

 If the complainant chooses to begin the University Conduct Process, then the case moves to the Office of Community Standards (OCS), which will schedule an Administrative Hearing. Ryan Willerton, director of the OCS, will meet with each party to go over the process and answer any questions before the hearing.

“The purpose of the hearing is to clarify information that was presented through the administrative investigation,” Willerton says. The hearing includes a panel of three university officials, usually OCS staff, and the panel will ask the complainant, the respondent and the witnesses to clarify or further explain parts of the investigation.

 The complainant and respondent can suggest questions for the panel to ask the other party. Direct contact between the complainant and the respondent is not allowed. If the complainant wants to be in a different room than the respondent, arrangements can be made to use separate rooms or separate hearings.

Both the complainant and the respondent are allowed to have an advisor in the room with them during the hearing. The advisor is not permitted to speak during the proceedings, but is there only to provide support, according to du Lac. Any advisor who disrupts the proceedings will be asked to leave the room.

 Neither the respondent nor the complainant is allowed legal representation for any part of the process, and the university requires both parties to speak directly to the hearing panel and not through a lawyer or any other person.

 When there are no more questions, the hearing will end, and the panel will decide if it is “more likely than not” that the respondent violated university policy. The panel does not need to prove the respondent guilty beyond the shadow of a doubt; they only need to determine if it’s more likely than not that the respondent is guilty of a violation of university policy.

“We want to ensure that we’re making the best decision and the right decision,” Willerton says.

The most severe discipline the panel can give a respondent is “permanent dismissal,” which means the student is expelled from school, with no opportunity to reapply to Notre Dame, Willerton says. A less severe outcome is temporary dismissal, which means the student will have the opportunity to reapply. The only record of any decision is on the respondent’s academic transcript, which other schools can see upon request. The transcript makes no reference to the nature of the violation, even in the case of rape.

Willerton declined to comment on the number of permanent or temporary dismissals that have been issued.

Both the complainant and the respondent can appeal a verdict, and the appeal is conducted by two different offices depending on the outcome of the initial process. If the respondent is permanently dismissed from the university, he or she can appeal to the Office of the President. Any other outcome leads to an appeal reviewed by the Office of Student Affairs. Either office reviews the file from the initial process, and that decision is final.


Jessica says she never got the chance to have an administrative hearing after a Notre Dame student raped her.

She reported the assault to Notre Dame in February of 2015. In March, she says the school notified the respondent, a male student, that Jessica had reported a rape, and the next day, he allegedly physically assaulted another Notre Dame student — Jessica says, in anger over her rape report.

In April, Notre Dame held a hearing for the respondent’s physical attack the other student, and found him “responsible for committing a violation of the university’s policy prohibiting violence against others,” according to a letter Jessica provided to Scholastic. He was temporarily dismissed from the university. According to the letter, he would be able to apply for readmission in fall 2016. He is not currently listed as a Notre Dame student.

The night before Jessica’s sexual assault hearing, Willerton emailed to tell her the hearing was canceled.

The Title IX office told her, “Because [the respondent] is no longer enrolled at the university, the administrative hearing regarding this matter cannot proceed at this point.”

Months after Jessica’s case was canceled, Willerton says Notre Dame revised Dulac to allow the university to “investigate and resolve alleged violations while a student is dismissed,” and to consider unresolved or additional reports of alleged misconduct when deciding whether to readmit a respondent.

And while the policy change would resolve Jessica’s problem, Willerton says it can’t be implemented retroactively. That means Jessica’s hearing can only move forward if Notre Dame readmits her alleged rapist.

Since permanent expulsion is the strongest punishment available through Title IX and the student has been temporarily dismissed, there’s no further remedy available to her, unlike a criminal prosecution.

She says the last time she heard from him was October of 2014, when he threatened to post nude photos of her online with her name and address — also known as revenge porn.

What Could Be Improved?

The Office of Community Standards regularly reviews and revises DuLac, particularly when students suggest policy changes. Right now, campus advocates are pushing for five major changes: revision of the Clery Act reporting system; free testing for sexually transmitted infections; outsourced disciplinary panels; rape kits on campus and unified language around consent.

1) Clery Act Email Blasts

When an assault is reported and NDSP decides the crime represents a safety threat to students or employees, the school is required by the Clery Act of 1990 to provide a timely warning to the student body. This results in the email blasts known as crime alerts or Clery alerts.

A recent article by the Observer Editorial Board called for a more timely sending of Clery alerts. It said, “There are real benefits to alerting the community that crimes have been committed. It is our opinion that ethically, Notre Dame must take that into account when making a decision to send an alert, instead of adhering to the bare legal minimum.”

But survivors say that after an assault, a mass email is the last thing they want. Victims feel victimized all over again when news of their rape becomes public and classmates are able to deduce their identities.

Take Jessica’s case. When she was assaulted the first time, she says she spent over eight hours in the hospital the next day, so she was gone long enough for her classmates to notice. The next day, Notre Dame Security Police sent a Clery email that an “acquaintance” committed a sexual assault in a “west quad men’s residence hall.”

Jessica says it felt like the entire campus knew. “I had everyone looking at me with pity in their eyes — professors included,” she says. She says a relative of hers, a St. Mary’s alumna, heard about Jessica’s sexual assault from an old classmate, whose daughter went to St. Mary’s and had heard rumors.

Another student with a personal interest in sexual assault policy is senior Grace Watkins, who has always been interested in law, but says when she was sexually assaulted during her freshman year, she narrowed her focus to sexual assault policy. She currently serves as the University Policy Liaison for Student Government. (Scholastic does not normally identify victims of sexual assault, but Watkins has publicly identified herself as a sexual assault survivor and gave the magazine permission to use her name.)

Watkins says Clery alerts do not protect the privacy of survivors.

“Stretching the amount and frequency of personal information released as Clery Alerts is not a victim-based approach,” Watkins says.

Watkins says that she and other survivors would prefer an annual report of aggregate data about sexual assault, including the total number of reports and the number of dismissals.

“Releasing aggregate data gives a much more full and accurate picture of the severity of sexual violence on our campus than what can be gleaned from the cases that qualify as Clery Alerts. It also does a much better job of protecting victims’ privacy,” Watkins says.

2) Testing for Sexually Transmitted Infections

Watkins also wants St. Liam Hall to provide assault victims with free tests for Sexually Transmitted Infections. Currently, University Health Services works with the South Bend Medical Foundation to perform all STI tests on campus, and the tests are either billed to the student’s insurance, where parents might see it, or transferred to the UHS, where students can pay out of pocket or through their IrishPay account, according to Sharon McMullen, director of UHS.

Without insurance, a test for a single STI can cost anywhere between $50 and $200.

3) Administrators on panels

Watkins says the three OCS officials on the hearing panel should be replaced with lawyers who aren’t affiliated with the university. She says that having OCS staff on the hearing panel poses an inherent conflict of interest. Heather Ryan disagrees. She says the people most qualified to be on the panel are those most familiar with the policy and the process. “It’s a process at an institution,” she says. “It’s not a legal process.”

Similarly, Willerton says lawyers aren’t needed for an administrative process. “The most that we can do to a student is dismiss them from the university,” he says. “We can’t put them in jail. It’s important to understand that this isn’t a criminal process. It’s a university process and an education process with some very high stakes.”

Watkins says administrators are not qualified to rule on sensitive, important issues, “nor are they fulfilling the spirit of their job titles.” She encourages Notre Dame to emulate top-tier schools such as Harvard, which uses independent, “qualified” panelists with relevant expertise. Others, such as Yale, use a system similar to Notre Dame’s with a committee made up of professors and staff.

4) Rape Kits on Campus

A rape kit, also known as a sexual assault forensic exam, is a package of items used to collect and preserve physical evidence, such as tissue and fluid samples, after a sexual assault.

Rape kits have many benefits. The Violence Against Women Act mandates that they be administered free of charge, and preserving physical evidence after an assault allows a survivor to take time before deciding whether to report or not. The proper collection of evidence with the kit can also help with the criminal investigation and prosecution of the alleged assailant.

Female students in their first semester of college are the most at risk of sexual assault. These students aren’t allowed to have cars on campus, and likely have few friends who can drive them to a hospital. A freshman who has been assaulted is left with few options: take a taxi, tell an RA or get a ride with the police. A ride from RA or police would initiate a sexual assault report, which a survivor may not want to make. Having rape kits on campus would certainly make them more accessible to students.

If a student is sexually assaulted, the university encourages students to seek medical attention within 120 hours of the attack, and recommends the student go to either St. Joseph’s Regional Medical Center or Memorial Hospital and provides transportation through NDSP.

St. Joseph’s is better equipped to administer rape kits than Memorial Hospital. St. Joseph’s has a sexual assault nurse examiner (SANE nurse) on duty 24 hours a day, while Memorial has SANE nurses only during certain hours. Any nurse can technically administer a rape kit, but multiple studies have shown that kits administered by nurses without special training are much more likely to be administered incorrectly.

The change that Student Body Vice President Becca Blais wants to see the most is rape kits at St. Liam’s. “It’s a disservice to our student body. We need to have them,” Blais says. Student government is working to have a SANE nurse from St. Joseph Regional Medical Center on call at St. Liam’s so that a properly trained nurse can administer the kit.

A study published in the Journal of Emergency Nursing found that rape kits completed by nurses without any special training are 17 percent more likely to include the incorrect number of swabs for evidence, 16 percent more likely to be improperly sealed and 11 percent more likely to follow an improper chain of custody on the way to law enforcement. Jurisdictions with more readily available SANE nurses also often have higher prosecution rates for rape, a likely result of more usable evidence.

McMullen says UHS has been in discussion with student government and will consider the pros and cons of having kits on campus.

5) Consent

There is no singular, national definition of what qualifies as consent. Different universities and states use different standards. Watkins says, “It’s concerning that different things constitute rape depending on where they occur.”

Notre Dame’s definition of consent, according to the Title IX website is, “informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity.”

The website says that both parties are obligated to obtain consent, no matter their level of intoxication, and a person is incapable of providing consent if that person is “incapacitated.”

The Title IX website provides no explicit rule for determining if a person is incapacitated due to intoxication. The standard provided is, “whether the respondent knew, or a sober, reasonable person in the respondent’s position should have known, that the complainant was incapacitated.”

Willerton says that “most” OCS sexual assault hearings involve alcohol as a factor.

Watkins says there’s a theoretical gap in what consent looks like on paper and how it’s actually practiced.

The Gender Resource Center sponsors several programs targeted at creating more understanding about consent and what constitutes it. On Oct. 10, they will be sponsoring a discussion titled, “Catholicism in a Consent Culture,” and they have a number of educational resources on their website at grc.nd.edu and on their YouTube channel.

Programs That Aim to Prevent and Heal

Dr. Christine Caron Gebhardt, the director of the Gender Resource Center (GRC), says the university does a great job “preparing first year students about how to think about these issues and strategies and resources that are there for them at Notre Dame.” However, “we as students, faculty and staff don’t become involved until an incident directly impacts us, and I think that’s reactive rather than proactive,” Gebhardt says. Prevention is the most important part of the process for Gebhardt.

Of all the programs, students recognize GreeNDot most because of the banners and stickers that have popped up all over campus. GreeNDot is a campus-wide initiative to encourage everyone to make violence prevention a part of their everyday life, as well as entice students, faculty and staff to participate in GreeNDot bystander training programs.

The Committee for Sexual Assault Prevention (CSAP) oversees GreeNDot, but many organizations such as student government and the Gender Relations Center have become heavily involved in GreeNDot as well. The goal of GreeNDot is to have 15 percent of all students, faculty and staff go through bystander training. Reaching that threshold is the number one goal for Gebhardt.

CSAP also analyzes the data that comes from the University Climate Surveys. This month, CSAP is conducting focus groups to evaluate the previous survey so that they can make the necessary changes before administering a third climate survey later this semester.

Student government is part of a national campaign to end sexual violence called It’s On Us. It’s On Us is focused on empowering students to take ownership of the issue of assault prevention and encouraging them that everyone can make a difference. Student government also holds prayer services to pray for an end to sexual assault.

The GRC sponsors a few different support groups for survivors, among them being Out of the Shadows, a group facilitated by the Family Justice Center of St. Joseph County. Student government also recently created a new survivor support group that meets every other Friday in the third floor Universality Room in St. Liam Hall.

Moving Forward

Title IX originated as a policy meant to fight discrimination on the basis of sex. Throughout the 1980s, it began to morph into a comprehensive policy framework to fight campus rape — an alternative to the often arduous, costly and ineffective criminal reporting process.

There are benefits for victims who report through Title IX. For instance, meetings are built into the complainant’s academic schedule and decisions require a lower burden of proof.

But Notre Dame’s administrative reporting process is just that — administrative.

The Office of Community Standards is limited in the punishments it can dole out. Stanford swimmer Brock Turner’s notoriously light prison sentence seems gargantuan when compared to simple expulsion.

And because hearings don’t adhere to legal procedures, the process is subject to bureaucratic oddities. The honor code is reevaluated annually, and advocates say it still needs to change.

Across campuses, debate over Title IX continues.