DA says handling of case mirrors skepticism toward stories of sexual assault
By Katie Bernard
The Kansas City Star
LAWRENCE, Kan. (AP) — Nearly a year after Douglas County prosecutors dismissed false report charges against a KU law student who said she’d been raped by a classmate, a lawsuit and experts say Title IX investigators at the university doubled down on a flawed police investigation, failing her a second time.
The university’s handling of the case, said incoming Douglas County District Attorney Suzanne Valdez, mirrored the skepticism towards stories of sexual assault seen in messaging from the Federal Department of Education and the Lawrence Police Department investigation, The Kansas City Star reports.
The lawsuit, filed by the student against the University of Kansas and the City of Lawrence, represents the first public accounting of the university’s handling of the case. The student simultaneously faced criminal charges for filing a false report of rape, but those charges were later dropped.
The lawsuit, filed last month, describes a Title IX investigation that depended heavily on police findings and disregarded evidence and witnesses brought by the woman. And it argues the woman’s constitutional rights were violated by the city and that the university violated Title IX.
Shiwali Patel, Director of Justice for Student Survivors at the National Women’s Law Center, said KU’s conduct is an example of the impact of adjusted guidance and an attitude of skepticism towards survivors passed down from the Department of Education under the leadership of Betsy DeVos over the past four years.
“If you look at the changes as a whole, underlying them is a deep rooted skepticism of sexual violence, sexual harassment and sexual assault complaints which is why they’re creating more burdens for student survivors,” she said.
Some survivors, Patel said, are more likely to report an assault to Title IX than to police because they seek academic accommodations rather than a criminal investigation. According to the Rape, Abuse and Incest National Network only 23% of rapes are reported to police.
According to a 2009 University of Massachusetts study, about two to eight percent of rapes reported are false.
The Star generally does not name possible victims of sexual assault without their permission or people accused of sexual assault if they have not been criminally charged.
The KU student’s lawsuit stems from an alleged September 2018 assault in which the student claimed to have been raped by an acquaintance when she was too drunk to consent.
Within 90 minutes of hearing her report, a Lawrence Police detective, Charles Cottengim, determined she had lied — basing his belief on text messages sent in the hours following the incident which he said portrayed the encounter as consensual.
The student was criminally charged with filing a false report. The charges were dropped last year after intense public scrutiny, criticism that officers ignored the effects of trauma, and concern that the case could prevent survivors from coming forward. The Douglas County District Attorney who brought the case was voted out of office in August.
According to the lawsuit, the detective contacted the University of Kansas Office of Institutional Opportunity and Access, which handles Title IX complaints, to share his doubts after the woman filed her complaint.
The suit alleges that the KU investigator failed to contact many of the witnesses the student cited and ignored evidence before reaching the same conclusion as police that the student had lied about the alleged assault.
University of Kansas spokeswoman Erinn Barcomb-Peterson declined to comment on pending litigation and referred The Star to the university’s website for general questions on Title IX policies and procedures.
“We are confident in our Title IX investigations and our student conduct processes, and we look forward to resolving this matter through the legal process,” Barcomb-Peterson said in a statement.
When DeVos took over the Department of Education in 2017 she immediately rolled back Obama era guidance on how schools should investigate claims of sexual harassment and assault. In August her new policy, which sought to provide more support to the accused, was implemented. It is facing challenges in court from several organizations including the National Women’s Law Center.
Advocates, including Patel, have decried DeVos’s policies and guidance as detrimental to survivors of sexual assault because it limits what cases schools can investigate and makes it easier to punish suspected false reporters.
This, Patel said, creates a chilling effect that causes fewer survivors to report in fear that they will be punished if they are not believed.
President-elect Joe Biden has said he plans to roll back DeVos’s policies, returning to and strengthening Obama era guidance. Patel, however, said this could take time to accomplish.
Though court records in the criminal proceedings were open record, the University’s simultaneous Title IX investigation and proceedings were closed.
The lawsuit describes the university’s process alongside the criminal proceedings.
Days after the woman filed a complaint with the University of Kansas Office of Institutional Opportunity and Access, the lawsuit said, the university’s Title IX investigator was in touch with a Lawrence detective.
By the time they talked, the detective, Charles Cottengim, already believed the student was lying, Cottengim testified in court.
In accordance with a memorandum of agreement, the suit says, the Office of Institutional Opportunity and Access and the department shared investigative materials.
The IOA Investigator, Kate Burns contacted Cottengim seven times over the course of the investigation, the suit said. The two shared interviews and evidence with one another.
However, according to the suit, Burns contacted only three of the 17 witnesses the woman provided and did not review medical documentation including the woman’s SANE exam (rape kit) and PTSD diagnosis.
Christian Basi, a spokesman for the University of Missouri, said that the only instance investigators at the university would not contact witnesses is if the complainant chose not to pursue an investigation further.
According to the University of Kansas website explaining its complaint process, complainants are allowed to provide a list of witnesses. The site, however, does not say whether an investigator must reach out to those sources.
The site does not have information regarding the process if investigators believe a complainant may be lying.
Furthermore, the suit said, Burns did not look into alleged text messages from the man indicating his desire to have sex with the woman or reports of confrontations he’d had at law school sponsored events.
Throughout the investigation, the suit said, the school failed to address various reports of retaliatory conduct by the man she’d accused of rape, his friend (her ex-boyfriend) and Mayor Quinton Lucas, her professor.
According to the suit, Lucas used the woman’s name in a hypothetical during a class regarding his general thoughts on the University’s Title IX processes and “made comments directed towards the ongoing IOA investigation.”
In a statement, Lucas denied knowledge of the event or specific Title IX case. He said he learned of the situation only through The Star’s inquiry.
“I use the Socratic method of teaching involving hypothetical questioning of all students, have covered the same issues each year, used the same case book and legal cases, substantially the same syllabus year to year, and have not presented substantive course doctrines based on any individual student’s circumstances,” Lucas said. “While I cannot remember all that I have ever said in hundreds of hours of teaching, I can say with certainty that I have never derided, nor would I ever deride survivors of harassment or assault or any movement dedicated to supporting their voices.”
In July, More than 8 months after the woman reported the alleged assault, the Title IX office ruled that she had engaged in “serious misconduct” by filing a false complaint, the lawsuit said. The woman was never told that the university was investigating her rather than her alleged assailant
“KU similarly adopted the LPD’s near immediate conclusion by police that (the woman) was ‘lying,’ prior to any investigation,” the suit said.
The woman was required to attend a hearing with the Office of Student Conduct which ultimately found that, though it agreed with the Title IX office’s findings, it would take no disciplinary action.
The woman’s appeal, the suit said, was rejected as the Title IX office’s findings were found to be reasonable given the woman’s alleged desire to continue a relationship with her ex-boyfriend, the best friend of the man she accused.
Suzanne Valdez, a former professor of the woman’s and the incoming Douglas County District Attorney, said she believes she was one of the 17 witnesses provided to the Title IX office but she never got a call.
She said she was “appalled” but not surprised that the Title IX officer ruled against her student.
“The thing about (the Office of Institutional Opportunity and Access) in my experience is that they lack the training, they lack the sensitivity to handle any of these issues that they’re charged to address in a way that is compassionate, in a way that is fair and it’s just been the practice at KU,” she said.
Rebecca Gill, director of the Women’s Research Institute of Nevada said the issues described in the lawsuit are a prime example of problems in universities and across American society in addressing sexual assault.
“The way that we deal with rape, sexual assault, sexual harassment as a society is broken and so it’s no wonder that it’s also broken on college campuses,” she said.
“This case is a really good example of that because you see this dance that goes on between police and Title IX investigators.”
Title IX investigations, Gill said, have long been plagued by conflicting interests of the school and the survivor, myths about when and why rapes occur and a belief that more false reports are made than there are. It took one person interpreting a text message to mean the woman was lying to sway both investigations against her.
Universities tend to worry, Gill said, about statistics showing that sexual assault and harassment happen on campus and lawsuits from accused individuals who receive sanctions.
“The fact that it’s the university that’s in charge of doing these investigations sets up this really difficult set of incentives,” she said. “They tend to see the interests of the university as being more in line with the interests of the accused.”
Patel, with the National Women’s Legal Center, said KU’s Title IX office should be conducting their own investigations rather than relying upon law enforcement’s findings. Title IX has a different purpose than law enforcement, Patel said, rather than prosecuting a crime universities are obligated to ensure that complainants retain access to education because of their experiences.
Even if an investigator believes a reporting party might be lying, the school should fully investigate the initial complaint before shifting gears, Patel said.
That, the lawsuit claims, never happened.
In August the Department of Education officially passed a policy allowing schools to punish students for making false reports without it being considered retaliation while also limiting what complaints schools are authorized to investigate.
These rules, Patel said, will make situations such as what occurred at KU more common and more detrimental while creating hurdles that may prevent survivors from coming forward.
She said it could have the largest impact on students of color or LGBT students who are already less likely to be believed when they report assault and harassment and more likely to be subjected to “rape myths” such as the suggestion that people report rape if they regret consensual sex or that perpetrators are likely to be violent strangers rather than someone known to the victim.
“This is a good example of how some schools because of rape myths, because of their lack of training around sexual assault might wrongly believe that someone is falsely making a statement and now can punish them without it being considered unlawful more easily under this rule,” she said.
The federal government sent the clear message, Gill said, that “we don’t really believe you,” exacerbating the problems Title IX already had.
