VERMILLION, S.D. (AP) - Alyssa Fothergill thinks the topic of sexual assault could be taken more seriously at her college.
Fothergill, a sophomore at the University of South Dakota, joined other students at a campus forum in Vermillion recently to express disappointment in regard to how the university has handled past sexual assault reports, urging more guidance and support.
The forum came a few weeks after two USD football players were charged with the rape of a woman at an off-campus residence, a high-profile case that drew more attention to an already pressing issue.
“If we’re silent, nothing is going to be done,” said Fothergill, of Fenton, Iowa.
USD isn’t the only institution facing scrutiny. Colleges and universities across the country are grappling with how to handle sexual assault cases and the conversations that surround them as national standards fluctuate.
Department of Education Secretary Betsy DeVos announced changes to Title IX guidelines in September. She plans to roll back guidelines implemented around the 2011 Dear Colleague Letter and focus more on due process for the accused by allowing schools to choose the standard of proof at which they would discipline a student.
The loudest national narrative rings true here: How do university officials balance security for their students with due process for those accused of misconduct?
One in five female undergraduates and one in 16 male students experience some kind of sexual assault while in college, according to multiple national studies. But most campuses acknowledge the number of incidents actually reported is much smaller.
For example, USD reported four sexual assaults on campus in 2016, according to its 2017 safety and security report. Based on the school’s enrollment of 10,038 that fall, that would be one in 2,509 students, the Argus Leader reported .
At SDSU, there were seven reported rapes on campus in 2016. The 2016 fall enrollment was 12,816. That would be one in 2,136 students.
Those numbers are a far cry from the nearly 27 percent of student victims that national studies say exist.
“Zero (reports) is not a good number,” said South Dakota State University Title IX coordinator Michelle Johnson, referring to possible under-reporting of incidents. “We’d love to receive no reports, but that’ll never happen. We know they’re happening. We want to know when they’re happening.”
The actual number of sexual assaults on campus is all but impossible to know, considering roughly 90 percent of assaults go unreported, according to the National Sexual Violence Resource Center.
Victim advocates are concerned about conversations surrounding the new Title IX guidelines. Survivors hearing about a higher standard of proof for the accused could feel discouraged from reporting an assault - a process that’s already daunting for many.
Fear of retribution from fellow students, or the community, is often a main deterrent to reporting. The victim in USD’s most recent case “was very reluctant about having an investigation started due to the backlash she believed she would suffer from the football team, student population and community,” according to court documents.
Making the threshold higher to find an accused guilty may well scare victims even more from reporting what happened to them.
“We are very concerned about the safety of victims on college campuses during the process of investigation and afterwards,” said Krista Heeren-Graber, executive director for the South Dakota Network Against Family Violence and Sexual Assault. “We don’t want to water down the victims’ rights and the schools’ ability to assist the victim through the process.”
One of the biggest changes from DeVos’ declaration - and the one causing the most stir - is allowing schools to choose its standard of proof when investigating sexual assault cases. Universities currently use the “preponderance of the evidence” threshold, which has come under criticism by defense attorneys and others who claim it prevents the accused from receiving due process as they face discipline that can include expulsion.
The new guidelines allow school officials to raise the threshold to declare guilt to “clear and convincing evidence.”
The difference: The preponderance of the evidence standard is met when the evidence shows the defendant is more than 50 percent likely to be guilty. Clear and convincing standard means the evidence “leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true,” commonly seen as a likelihood of 75 percent or higher that an assault took place.
Both are less stringent than the “beyond a reasonable doubt” standard used in criminal courts, a separate process for those charged with criminal sexual assault.
The issue gained attention in Sioux Falls when former Augustana University student Koh Tsuruta sued the school in 2015 after being expelled following a rape accusation by a female student. He also faced criminal charges that were later dismissed by prosecutors.
Tsuruta claimed that his rights to due process were violated by the school’s internal investigation and method of adjudication.
“The (Augustana) process was a complete sham,” defense lawyer Mike Butler, who represented Tsuruta in his criminal case, said last year. “It’s shocking when someone is found to have committed sexual offenses even though the judicial process doesn’t say so.”
Tsuruta’s lawsuit against Augustana was dismissed in August after being “resolved to the satisfaction of both parties,” according to Vince Roche, a lawyer for Augustana.
As it stands now, South Dakota’s public universities - under the direction of the Board of Regents - aren’t anticipating much change in the way investigations are conducted.
“We believe we have a process that is fair and impartial,” said Guilherme Costa, the Board of Regents general counsel.
The regents heard a first reading of the new guidelines at their October board meeting. A second reading is scheduled to occur at the Dec. 5-7 meeting in Sioux Falls.
Costa said the board’s policies already mostly aligned with the new guidelines: a fair process to both parties, the accused and the accuser. Appeals processes are built into the investigation. Students can appeal a case to the school if they think it’s been mishandled. A fourth appeal brings the case to the board, something he said has never happened.
“It really boils down to ensuring the process isn’t biased toward either party - that there’s a fair and impartial process,” he said.
The Board of Regents revamped the student codes of conduct about two years ago with the purpose of making it more transparent and easier to understand.
The new code outlines what the hearing process looks like for a student accused of sexual assault and better details why the student is being accused. Previously, a student would learn they were part of an investigation, but they were given limited details.
“If you’re a student going through this for the first time, just saying you have a hearing isn’t very helpful,” Costa said. “How is this hearing going to go down?”
Additional changes from the guidelines include: the accused in the case can request that members of the student conduct panel be removed for conflict of interest, and each party involved is allowed two advisers instead of one.
Universities are also trying to stay current with sexual assault training on campus. The regents hired Green Dot, a program that encourages bystander intervention. The training encourages students who see a situation that may lead to sexual assault to step in. SDSU has implemented Step Up, a program that does training on a more peer-to-peer level.
The 120 or so USD students and staff at the campus forum this week learned more about training from an ICARE grant that will kick off in January. That training focuses on bystander intervention and consent.
But students aren’t waiting for a nod of approval from the administration to take matters into their own hands.
A senior seminar class at SDSU started a freshmen orientation sexual assault training class, said SDSU Student Association president Taylin Albrecht. Albrecht, a senior in human development and family studies, said the student government hasn’t heard much from students about the new Title IX guidelines, but said the association hit the ground running with the issue this year.
“We’re happy with the way that we’re doing things,” she said. “Even from the time when I started college to where I’m at now - it’s more of a topic for discussion. I remember not hearing as much about it until these last couple of years. Now it’s huge. We do a lot of training.”
Fothergill, a survivor of sexual assault herself, started PAVE in Vermillion. PAVE stands for Promoting Awareness Victim Empowerment and is a national non-profit aimed at “shattering the silence of sexual violence” on campuses.
The group started in September and has almost 80 members as of early November.
“The conversation just wasn’t there,” Fothergill said. “We wanted the student aspect (of sexual assault) to be known, and we have students who have the passion to end it.”
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Information from: Argus Leader, http://www.argusleader.com
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