Is a Drunk Shaming and Sexual Assault Case in Michigan Part of a National Trend?

Todd Heywood

A police report from Meridian Township, Michigan detailing an evening of troubling incidents among a group of Haslett Public Schools teachers “drunk shaming” may be but one example of a much broader problem.

Todd A. Heywood, a freelance journalist living in Michigan and a member of the Center for Independent Journalism also writes for Rewire. This article originally appeared Tuesday morning, October 13th, in the Michigan Messenger.

A police report from Meridian Township, Michigan detailing an evening of troubling incidents among a group of Haslett Public Schools teachers involving drug use and “drunk shaming” is prompting questions about the teachers’ behavior and institutional accountability in this suburban community near East Lansing.

The police report addresses a number of incidents that took place at an end-of-year party hosted in 2007 by a Haslett teacher and attended by several other teachers from the district. The police report was provided to Michigan Messenger by one of those teachers, Veronica Piechotte, who says she was victimized by her colleagues that evening and that neither the Haslett school administration nor the legal system had acted on her complaints until Michigan Messenger began its inquiry.

PHOTOS: What follows is a photo slideshow of the incident, some taken by participants during the drunk shaming incident and some taken the next day at the medical examiner’s office. Some viewers may consider the photos graphic.

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According to the account Piechotte gave police the day after the incident, on the last day of school in 2007, Piechotte and five other Haslett school teachers, Lauri Etheridge, Timothy Beebe, Brian Town, Daniel McKinney and Heather Woodworth, joined their colleagues at an East Lansing bar to celebrate the beginning of summer vacation. As the party moved from the bar to McKinney’s house, things took a turn for the worse. The people involved dispute some of what happened during the evening, but each of them spoke with police at the time, providing a contemporaneous, first-hand account.

‘Degraded, defiled, lifeless’

According to the police report, Etheridge, Town, Piechotte and Woodworth stopped at Town’s home on the way to McKinney’s house, which is a short distance from the school. There, according to the report, they decided to smoke marijuana and Town produced and provided the drug for the three women, who went to the garage to smoke it. The teachers then continued on to McKinney’s house.

Later that night, after more alcohol consumption by all involved, Piechotte crawled between a coffee table and a sofa in McKinney’s living room. There she passed out.

According to the report, Town and Beebe decided it would be “funny” to draw on Piechotte’s unconscious body. The two proceeded to draw penises on her legs, glasses on her face, write the word “balls” backwards on her forehead and write their names on her stomach. Much of the writing was sexual and crude. McKinney and his wife, as well as Etheridge and staff member Phil Rutkowski, watched the drawing. McKinney took pictures with his digital camera, and at least one person took pictures with a cell phone. (Editor’s Note: Some readers may consider the photos taken during the drunk shaming to be graphic.)

Beebe and Town told the police that they had each written references to the other on Piechotte’s body, Town writing “Beebe was here” and Beebe writing “I love Brian Town” on her midsection. Beebe says he did not recall writing any obscene symbols, but his recollection was not clear.

What the two men had done, with the other teachers watching, was called “drunk shaming,” or humiliating people after they pass out from intoxication.

Beebe, Town and others told police the markings were not done maliciously but as a joke, or as Town said, because they “love her.” Beebe said he had done similar things to others, including Town.

Piechotte has other words for how the drawings made her feel: “degraded, defiled, lifeless, treated like an object, treated like, frankly, a bathroom stall.”

“I have never been so humiliated in my whole …” her voice trailed off during a recent interview with Michigan Messenger. “You ask me to explain it, and I don’t have the words.”

Piechotte said she understands that she made inappropriate choices that night. She said she drank too much and smoked marijuana, but she said that didn’t give her co-workers permission to write on her body.

“The humiliation that goes with people writing horrendous things on intimate parts of my body,” said Piechotte, who is openly lesbian. “I mean we’re talking one inch from my vagina. We’re talking names on my stomach like they were signing some graffiti on some property they had claimed. There is nothing more humiliating.”

Piechotte said she is going public because she wants her experience to prevent others from having to go through her trauma by bringing awareness to the practice, which has been documented in countless YouTube videos and photos that have become popular online.

“You just don’t treat another human being like that,” she said.

Piechotte also alleges that she was given a date rape drug and sexually assaulted in a bathroom before she passed out. The other person involved admits to sexual activity but claims it was consensual and denies providing Piechotte any date rape drugs. The prosecutor did not file any charges on these claims, finding that the evidence and testimony were insufficient.

No police charges over drunk-shaming

Piechotte went to the police the day following the incident.

When asked about the drunk shaming during an interview with police, Town admitted to providing the marijuana but told the officer he did not have it anymore. The officer told Town he did not believe him, and according to the report, Town subsequently went back to his home and returned to the Meridian Township Police Department with 1.25 grams of marijuana and a pipe.

When Meridian Township police officials concluded their investigation, they submitted their report to Ingham County Prosecutor Stuart Dunnings III, seeking among other charges, charges of first-degree criminal sexual conduct and possession with intent to distribute marijuana without financial remuneration against Town.

Dunnings, however, said he felt he was unable to issue a charge on the alleged sexual assault, explaining to Piechotte that he could support seeking battery charges against the alleged assailant. Piechotte was not satisfied with this determination, and Dunnings had another, unnamed female county prosecutor review the file. She agreed with Dunnings’ assessment. Shortly thereafter, Dunnings became aware that he had a minor business relationship with one of the witnesses in the case and disclosed this to Piechotte’s attorney. Piechotte asked Dunnings to recuse himself, which he did. The case was referred to the state attorney general’s office, which sent it to Clinton County Prosecutor Charles Sherman, who chose not to file any charges at all.

In an interview with Michigan Messenger, Sherman said what happened to Piechotte was not acceptable. But he felt he could not bring criminal charges for a number of reasons, including the length of time that had lapsed between the incident and when he reviewed the case.

“It’s a judgment call that has to be made between what’s considered a practical joke and what the criminal justice system should get involved in,” Sherman said. “[Prosecuting] is like coming in with a hammer. That’s my remedy. That’s the only remedy I have. I can’t send you to your room and say no video games for three weeks.”

Sherman also said he did not file the marijuana charges against Town because he viewed that incident — specifically the allegation that Town had delivered the drugs to the police himself days after the incident — as a separate issue that was outside the bounds of what he had been asked to look at by the attorney general’s office.

Dunnings said that he had to recuse himself from the case before he had made a final determination on whether to issue warrants. He said he was very reluctant to pursue the marijuana charges because he would have to charge not only Town, but Woodward, Etheridge and Piechotte for possession. Dunnings said he felt Piechotte was traumatized enough as it was without charging her with a crime.

“You see the quandary?” Dunnings said. “You try to do something to bring justice, but what would the justice have been in charging her, too?”

Dunnings said the marijuana charges were part of the referral to Sherman. In regard to Sherman’s claim that he saw the drug charges as outside of his scope, Dunnings disagreed, noting that the knowledge of the marijuana possession and use came to light as a result of the investigation into the drunk-shaming incident.

Dunnings is unable to prosecute anything connected to the case now that he has recused himself from the case. He called the drunk-shaming incident unacceptable.

“I think it is absurd that adults, [in] college or not, would engage in this,” Dunnings said. “It’s repugnant. I don’t see how anyone can find pleasure in doing this.”

Drunk-shaming common but legally ambiguous

Shari Murgittroyd, program coordinator for Michigan State University’s sexual assault program, said the issue of drunk shaming is nothing new. She said she has heard stories for 20 years of situations where people who had passed out were drawn upon, but that the stories have changed dramatically in recent years.

“The phenomenon that I have seen in the last two years, more and more women are experiencing the drunk-shaming after passing out or becoming unconscious or blacking out or whatever with alcohol and having pictures drawn on them and vulgar language of a sexual content,” she said.

“I think that this is a whole other level of sexual harassment and sexual assault that’s disturbing,” Murgittroyd said. “It’s just another form of humiliation, you know, someone taking power and control over some one in a degrading way to humiliate them. I don’t see it as funny or a joke. … [W]hen you start removing clothing and drawing on parts of the body that are very private, if you are touching those parts of the body and somebody is not giving you consent to do that, that is sexual assault. That is criminal sexual conduct in the state of Michigan.”

She acknowledges prosecutions in drunk-shaming can be difficult.

“This is up and coming. I think law enforcement and prosecutors are just having more of these reports coming forward and learning how to investigate them,” she said. “And I think they are going to see more and more people coming forward trying to make reports and press charges, because it is of a criminal nature. But I think that because of our culture, and the way that it is seen as joking and in fun, that it is going to be difficult to prosecute those cases, to get jurors to buy in that someone is really victimized.”

She said that in order to address this situation, it may be time for legislators to create a new law, although she hopes law enforcement will use laws already available to them.

Haslett schools took little action

While criminal charges were never filed in this case, Haslett school officials — according to police records, emails and other documents provided by Piechotte and an interview with Superintendent Mike Duda — were aware of the incident and took little if any action in response to it until Michigan Messenger started examining the case.

The police reports show that Beebe, Town and Piechotte each made contact with different administrators of the high school following the incident. The reports record that Beebe informed Assistant Principal Darin Ferguson “that Beebe drew a soccer ball and some other innocuous things on Piechotte’s body …”

The report also indicates that Piechotte had informed another assistant principal, Lynne Bartley, who has since retired. The investigator was told as well by principal Bart Wegenke that he was aware of the incident.

As a result of the trauma she claims to have suffered because of the incident, Piechotte was on a leave for part of 2007. The district tried to separate her from her employment because her medical leave had expired. She declined because felt she was not being offered a fair separation agreement. She returned to the classroom to teach at Haslett’s alternative high school and this year was assigned to the middle school. During negotiations over her future with Haslett Public Schools, Piechotte showed Duda the pictures of the drawings on her body from the night the drunk shaming took place.

Duda, in an interview with Michigan Messenger, said the district had attempted to gain access to the police report from both Meridian Township Police Department and Dunnings, but had been unable to do so. Duda said he had not been provided with any police reports about any of the incidents.

A document in the police report mandated by state law was faxed to Duda on June 28, 2007. That document informs the district of an alleged crime within 1,000 feet of school property. In this case it was the marijuana use at Town’s home that was being reported. The document informs Duda that Woodward, Piechotte, Town and Etheridge were alleged to have been in “illegal possession of a controlled substance, or a control substance analogue, or other intoxicant.”

In addition the document noting the incident had been reported to Duda, there is a hand-written note that reads “901 [Chief David Hall] showed the form to Mr. Duda and discussed it with same.” The note was signed by Meridian Township Police Department Sgt. Greg Frenger.

Duda says he was out of town when the document would have been sent to the district, and that he had no conversation with Hall about the incident. Hall confirmed that it was possible that a conversation did not happen, and noted that the mandated reports are often misplaced by school officials in Meridian Township.

Piechotte said that no investigation ever took place and she was never questioned, nor is she aware of any disciplinary action taken toward any of the other teachers.

As a result of Michigan Messenger’s inquiry, Duda said the district’s law firm was reviewing the police incident reports with an eye on what, if anything, the district can do in relation to the incident. He termed the review an investigation.

In addition to the investigation, Duda said the school district would be bringing in outside consultants to develop a conversation about diversity. The news of the drunk shaming comes following separate allegations of ethnic insensitivity on the part of Duda.

The personnel files of the teachers involved in the drunk shaming incident reveal nothing to indicate that the school district took responsive actions, including any records of counseling sessions to discuss inappropriate behavior, letters of reprimand, nor evidence of an investigation or questioning by the administration.

It is that apparent lack of action that most bothers Piechotte. “While I am dismayed that both my employer and Michigan’s legal system have failed to recognize the brutality of this incident by not taking any tangible action,” she said. “It underscores the need to have meaningful dialogue about the underlying issues that enable a culture of bias and violence to exist, so that others will not suffer as I have.”

Comments were sought from Woodworth, Town, Beebe and Etheridge, but none responded before press time. The Haslett Education Association has advised the teachers not to make any public statements.

Investigations Violence

Victims of Rape and Sexual Assault, Failed by Criminal Justice System, Increasingly Seek Civil Remedies

Sofia Resnick

Unlike criminal trials, which require the prosecution to prove the defendant’s guilt “beyond a reasonable doubt,” civil trials have a much lower bar, requiring only that a plaintiff persuade a judge or jury that it is more likely than not that the events occurred.

This article contains graphic descriptions of sexual assault.

Alfredo Simón, a former pitcher for the Detroit Tigers who is now a free agent, is big for a baseball player.

The 34-year-old stands 6 feet 6 inches tall and weighs 265 pounds, according to his official stats. Simón’s stature may be imposing on the field, but it seems even more so when reading through a civil complaint lodged in 2014 that accuses him of rape.

According to his accuser, the assault occurred when Simón was in Washington, D.C., playing with his old team, the Cincinnati Reds, in a game against the Washington Nationals. The 29-year-old woman, who in court documents is named Jane Doe, says she met Simón at a club, where she consumed several drinks and became intoxicated. Doe left with Simón in the early morning hours of April 28, 2013, and they started making out in his hotel room.

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But then things turned.

Simón, she says, held her down despite her resistance, and anally raped her. Each time she tried to flee, she says, he would push her back onto the bed. Doe says he eventually yanked her by her hair and ejaculated in her face.

A forensic nurse examiner recorded Doe’s injuries in the sexual assault exam she took at the hospital later that day. Four days later, Doe reported the assault to police. According to the court documents, the rape kit detailed vaginal and anal abrasions and anal tears—injuries that, forensic medical experts would later testify in the civil case, corroborated her story. These injuries were not, however, recorded in photographs. Doe declined the nurse’s offer to snap images of her injuries, perhaps not understanding their potential value in bolstering her version of events.

Instead, an image that did make it into Doe’s police file was a photocopy of her cell phone exchange with the friend she had gone out with that night. Doe told her friend she was leaving the club to go “fuck the baseball player.” In her initial interview with police, Doe explained that she had intended to have sex with Simón. But, as noted in her civil complaint, she withdrew her consent once Simón “started to get rough with her.”

Police did not interview Simón, according to court records.

Ultimately, the evidence gathered wasn’t enough for the U.S. Attorney’s Office for the District of Columbia, which prosecutes crimes that occur in D.C. The prosecutors presented this case to a grand jury, but notes from Doe’s police file indicate it was the U.S. Attorney’s Office that made the decision not to file charges against Simón, citing “insufficient evidence” and “good defense.”

Historically, that would have been the end of the matter, at least from the defendant’s perspective.

But Doe did not accept the state’s view as the final say on her case. Instead, she filed a civil lawsuit against Simón, claiming $10 million in punitive damages for assault, battery, and intentional infliction of emotional distress, and $5 million to compensate her for medical expenses and lost wages. The case ultimately settled for a fraction of that amount—$150,000, Simón’s attorneys told USA Today—and Simón did not admit any wrongdoing.

William Miller, a spokesperson for the U.S. Attorney’s Office for D.C., would not comment on Doe’s case. “We are legally barred from providing information about confidential grand jury proceedings,” he said in an email.

Legal experts told Rewire that by suing her alleged attacker in civil court, Jane Doe joined the ranks of a growing movement in the field of sexual assault.

Though there is no comprehensive national database that tracks the number of civil cases brought against alleged perpetrators of sexual assault, anecdotal evidence suggests a trend in the United States for victims to seek civil redress.

Every year, thousands of cases involving allegations of sexual assault are abandoned in the United States due to a range of reasons. These include lackluster police investigations, lack of forensic evidence, a victim’s unwillingness to testify, and, according to a recent White House report, because “law enforcement officers and prosecutors are not fully trained on the nature of these crimes or how best to investigate and prosecute them.”

Indeed, rape is notoriously difficult to prosecute and harder to prove. Even after decades of criminal justice reform and dedicated efforts from survivors and advocates, prosecutors are generally reluctant to go after alleged persecutors aggressively, often fearing they won’t win a conviction. Trials can also be traumatic for victims, who frequently face juries biased by cultural assumptions about rape.

“We [in society] generally don’t second-guess people who say that they were burglarized or say that their car was stolen or who say that they were assaulted, but we absolutely second-guess people that claim that they were sexually assaulted,” former special victims prosecutor Roger Canaff told Rewire in a phone interview. “We either are skeptical of the truth of the allegation or we look to blame that person.”

Unlike criminal trials, which require the prosecution to prove the defendant’s guilt “beyond a reasonable doubt,” civil trials have a much lower bar, requiring only that a plaintiff persuade a judge or jury that it is more likely than not that the events occurred.

For many victims, it is easy to see the appeal of choosing a venue where they are at least held to a more attainable burden of proof than in a criminal court. Sometimes they file a civil suit in addition to pursuing criminal charges, or they only make a civil complaint.

Civil rights attorney Gloria Allred, whose Los Angeles-based firm has specialized in representing women who have been victims of various types of sexual abuse and harassment, says she is seeing increasing numbers of women consider civil remedies as a form of justice after they have been sexually attacked.

“More and more, I think victims are very seriously considering the civil option, because it’s empowering,” Allred told Rewire in a phone interview. “You’re moving from being a victim to a survivor to a fighter for change.”

This shift in mentality is especially apparent in the civil claims against Bill Cosby, who has become the face of one of the most high-profile cases of sexual assault allegations in the past decade. Allred’s firm—Allred, Maroko & Goldberg—represents about half of the nearly 60 women who have so far come forward with claims, reaching as far back as the ’60s, against the man formerly known as “America’s Dad.” Coverage of the claims against Cosby has intensified over the past two years, but the fact remains that the fallen Hollywood star has yet to serve time for any of the allegations against him. Cosby faced his first criminal charges in one of these cases only very recently. Prosecutors in Pennsylvania charged him with sexual assault in late December for allegedly drugging and sexually assaulting a woman in 2004.

For his accusers, Allred says civil court offers women another opportunity for justice. And she says the civil route is empowering because, unlike criminal prosecutions where the state is in charge, civil cases enable victims to decide whether and how to proceed in their case.

“It’s the case of the victim, not the case of the people of that state,” Allred said. “As [people] see women standing up and not being afraid to fight back, it does have a ripple effect, and it does inspire other survivors to think, ‘Well, if she can do it, maybe I can do it, too.’”

Suing to Change the System

The trend of rape-related civil lawsuits has been building over time, as University of Arizona law professor Ellen Bublick documented in 2006. In recent years, increased recoveries from plaintiffs have stemmed from sexual abuse lawsuits against Catholic priests and on college campuses, with settlements for rape-related lawsuits often averaging half a million dollars.

Rewire’s review of dozens of federal civil lawsuits involving sexual assault filed since 2012—available in public court databases and the National Crime Victim Bar Association’s civil case database—indicate that outside of a handful of deep-pocketed athletes and celebrities, most sexual assault survivors are seeking damages from third parties. The trend appears to be especially apparent with complainants at schools and in institutions, particularly correctional facilities, where prisoners are vulnerable to sexual assaults at the hands of prison guards and fellow inmates, and often have little recourse outside of civil redress.

Perhaps the most prominent use of civil laws to win justice for sexual assault victims has been by college students, who have forced universities to take campus sexual assault more seriously via cases filed under a 1972 civil rights law known as Title IX. The law requires educational institutions to take proactive action to ensure that students are not subject to sexual discrimination, including rape or other forms of sexual assault, such as harassment and sexual touching—or groping—that falls short of penetration.

Over the past few decades, survivors and advocates have leveraged the law’s requirements in order to build awareness of the problem of assaults on college campuses and in public high schools. A glowing reception at the Sundance Film Festival of the documentary The Hunting Ground, about on-campus rape, has only propelled momentum for solutions to combat attacks at universities.

And student advocates are explicit about the advantages that Title IX can have over criminal prosecutions.

The group Know Your IX, started in 2013 by a group of sexual assault survivors and their supporters, explains on its website that “many victims of sexual violence don’t want to turn to the criminal justice system.”

The group states: “[Victims] may fear skepticism and abuse from police, prosecutors, or juries; they may not want to go through the ordeal of a long trial; they may fear retaliation from their assailant, who will most likely not end up prosecuted, let alone convicted; and they may be hesitant to send their assailants to prison. But even survivors who do report to the police are often abandoned by the system.”

By contrast, Title IX requires schools to investigate every report of sexual assault. And as with all other civil claims, the victim must prove that it is more likely than not that the alleged assault occurred, rather than that the crime occurred “beyond a reasonable doubt.”

Like Title IX activists seeking cultural change in the way institutions manage sexual assault cases, some victims have used a similar approach to spur action on the processing of rape kits.

Between 2012 and 2014, seven anonymous women from Harvey, Illinois, sued the Chicago suburb for the county’s failure to process and test rape kits that had been collected after they reported rapes between 1999 and 2008.

Like many jurisdictions in the United States, Harvey’s police had not begun testing the kits, even though they contained evidence collected from victims who had endured forensic exams that often last hours and can be invasive and distressing.

One of the victims, known as Jane Doe I, first reported being raped by her stepfather in 1997, when she was 11 years old. She submitted to a rape kit exam, which found semen in her vagina.

According to court records, Doe I’s mother reunited with the stepfather, Robert Buchanan, early into the police investigation, and asked her daughter to blame the assault on a schoolmate. Doe I recanted, as is common in sexual assault cases involving minors and family members, and police closed the investigation without attempting to match the DNA sample to Buchanan or to conduct further investigation, according to the complaint and subsequent court records.

In the civil case, Doe I testified that Buchanan went on to assault her for several years. She estimated that he raped her more than 100 times between 1998 and 2004, but her previous experience deterred her from reporting the crimes to police. Police tested her rape kit in 2007 and found a match to Buchanan’s DNA. City attorneys finally convicted Buchanan of sexually assaulting a minor in 2012 and sentenced him to six years in prison.

The City of Harvey awarded Jane Doe I $1.2 million and awarded the remaining six plaintiffs a combined $241,250, according to the Chicago Tribune. Together, these women, many of whom were minors at the time of their assaults, filed a total of three class action lawsuits that centered in part on the county’s failing to process or preserve more than 200 rape kits. Cook County prosecutors discovered these abandoned kits after raiding Harvey Police Department headquarters. Of these kits, only 50 were deemed viable for testing—including those of the anonymous plaintiffs in these cases—and led to charges against 14 individuals.

Monetary Justice

Toward the end of 2014, Mattie Bright desperately searched for a new high school for her daughter.

In November 2014, Bright’s then-15-year-old said three boys raped her in the middle of the school day in an abandoned classroom at Rosa Fort High School, in rural Tunica, Mississippi. Though police apprehended the alleged perpetrators, they returned to school two days later. One of the boys continued to ride the same bus as Bright’s daughter for months.

The criminal case is still pending, but last summer Bright sued the Tunica County School District in civil court, seeking damages to compensate her daughter’s psychological and emotional distress. Tunica is a rural town, and Bright cannot afford the hefty tuition of an all-girls private school, one of the closer options, said Stephanie Morris, the civil attorney representing Bright and her daughter.

The costs associated with this traumatic event continue to swell, Morris told Rewire.

“She has been severely depressed and having chest pains,” she said, of Bright’s daughter. “She needs counseling, extensive counseling. Quite naturally, this is something that affects women for years and years to come. Some people need counseling for the rest of their lives.”

While many states do offer some form of compensation to victims of violent crimes following a criminal conviction, they tend to only cover a limited range of expenses.

However, civil lawsuits allow victims to fight for compensation for the full range of their injuries—medical and psychological—and in that way, these suits can better reflect the true damage inflicted by rape and sexual assault.

According to the complaint Bright filed in August, she is suing the Tunica County School District and school officials for not taking proper action after the alleged rape occurred and for acting indifferently to the verbal and online sexual harassment her daughter allegedly experienced following the assault. The complaint claims that only when local media began reporting on the alleged attack four months later did the school take any independent action, firing two teachers and expelling the students implicated in the attack.

Katherine Kerby, the attorney representing the Tunica County School District and other school officials, declined to comment on the case.

Bright is also seeking punitive damages, as well as a requirement that the school district implement steps to prevent sex-based discrimination and harassment and to fully investigate these incidents as they occur. The amount of damages sought is unspecified.

“The school district was so indifferent to what had happened to this child,” Morris said. “So, punitive damages would be appropriate just to deter them from this type of response, or non-response, in the future.”

Entrenching Inequalities

While the civil route offers some advantages, legal experts warn that it cannot take the place of robust criminal prosecution. Not only does it fail to remove dangerous individuals from society, but it also only works against defendants or institutions with deep pockets, a reality that excludes the majority of sexual assault cases.

After all, civil lawsuits are only an option for those whose perpetrators happen to have enough money to make them worth suing, a glaring inequality that lawyers and experts say will limit the extent to which civil action can be used to combat sexual assault.

University of Oregon law professor Tom Lininger in his 2008 Duke Law Journal article “Is It Wrong to Sue for Rape?” argues that lower-income defendants are more likely to serve time than rich defendants, who are more likely to pay for their crimes in civil courts.

Allred says that inequality is simply an unfortunate reality of an imperfect system.

“As the old saying goes, ‘You can’t get blood out of a stone,’” she said. “You know, is it worth it to spend hundreds of hours in a civil lawsuit against a perpetrator who has no assets? Where is the justice in the end?”

For LW, a resident of Washington, D.C., the fact that her alleged attacker did not have substantial assets was just one of the factors that ruled out civil proceedings in her case.

In an interview with Rewire, LW, who asked to be identified by her initials, said she was drugged and raped by a man she met at a concert in October 2012. She said the man, a friend of a friend, offered her a vodka and Red Bull, which, she said, knocked her out almost immediately.

LW said she awoke the next morning to a bed covered in vomit and blood, faded memories, and the realization that she was no longer a virgin. LW was convinced she had a solid case, a prime piece of evidence being that her rape kit matched the offender’s semen.

LW’s victims’ rights attorney, Bridgette Stumpf, confirmed the facts LW laid out about her case with Rewire but said she could not reveal any privileged information about her client’s case. Stumpf is the co-founder and co-executive director of the Network for Victim Recovery of DC, a nonprofit that since 2012 has offered free legal, case-management, and advocacy services to all victims of crimes in the District.

LW said the U.S. Attorney’s Office told her in July 2014 that her case was not strong enough to go trial. Months later, after filing a Freedom of Information Act request for LW’s police file, Stumpf and LW learned that her alleged rapist had changed his story. Initially, he denied raping LW and claimed he had simply brought her home. But when told his semen was found in a rape kit, LW said, he shifted his story, claiming they had had consensual sex. The U.S. Attorney’s Office declined to comment on LW’s case.

LW seriously considered filing a civil lawsuit against the alleged attacker but ultimately decided against it.

“I decided it wasn’t for me,” LW said in a recent email. “It may seem that civil suits are ‘easier’ to win and are better at getting justice, but that comes with a price tag. The cases can be dragged out for a long time, the victim is put through intense questioning, sometimes even psych evals, and you have to re-live the whole experience. Plus, in a civil case, it is all about punitive damages. Most perpetrators don’t have money to pay to the victim, let alone anything else that you could sue for.”

And on top of that, even a successful civil suit would have failed to deliver the results LW said she most wanted. LW, like other rape survivors who spoke to Rewire, believes her alleged attacker has likely assaulted other women, or will again. LW is not alone in this thinking. Sexual assault researchers have found that many rapists, including so-called date or acquaintance rapists, are repeat offenders.

“For me, I realized that what I wanted most was for my perpetrator to face criminal charges,” she said. “I wanted him to get jail time and be registered as a sex offender, and have his DNA in CODIS [the FBI’s national criminal database]. The statute in DC for criminal charges in rape cases is 15 years. I have hope that one day, my perpetrator will face criminal charges for the rapes he has committed, but civil charges wouldn’t help me sleep at night.”

Analysis Violence

At Swarthmore and Other Colleges, Students Say Sexual Assault Is a Persistent—and Often Mishandled—Problem

Annamarya Scaccia

Swarthmore is among a number of colleges and universities that are being investigated by the Department of Education's Office of Civil Rights for violating Title IX by creating a “hostile environment” and discouraging students from reporting or pursuing disciplinary action against sexual misconduct.

“I obviously went through it, but to put [it] into words is harder.”

The voice on the other end of the line is unsteady.

Joshua, a 21-year-old Swarthmore College student, is calling from his home in California—three time zones and 2,800 miles away from the prestigious campus 30 minutes outside Philadelphia. He’s back on the West Coast for the summer, tackling unfinished coursework after leaving school a few weeks early.

But, on this late July evening, he’s recalling the night last fall when he was raped, and the details of how Swarthmore mishandled his case. (Joshua is a pseudonym; he spoke to Rewire on condition of anonymity for fear of retaliation by Swarthmore’s administration.)

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Joshua’s story is one of 13 testimonies accompanying the May 22 federal complaint filed with the Department of Education’s Office of Civil Rights (OCR) alleging Swarthmore violates Title IX of the Education Amendments of 1972—which prohibits schools receiving federal funding from discriminating on the basis of sex, a mandate extended to sexual harassment and sexual violence—by creating a “hostile environment” and discouraging students from reporting or pursuing disciplinary action against sexual misconduct. The same day, students from the University of Southern California, the University of California, Berkeley, and Dartmouth College lodged similar complaints.

In September 2012, after a big fraternity party on campus, Joshua was brutally and violently raped in the bedroom of an apartment rented by a friend of his assailant—a member of one of Swarthmore’s fraternities who, sometime just before the attack, went on a rant about which male students were “’faggots’ or ‘faggoty’ and if they were ‘so faggy,’ they needed to get slapped,” Joshua recounted.

He was then harassed by his offender through an online forum called (Like) Like a Little, which was created to gossip with and about Swarthmore students. Joshua considers the harassment an intimidation tactic intended to silence him. Under multiple pseudonyms, his rapist called him a “faggot,” “the admission’s mistake,” and “a pathological liar,” but his true identity was discovered after Swarthmore’s Department of Public Safety launched an investigation following a report filed by Joshua. Although the office found evidence of sexual harassment, Joshua said the rapist was at the time not penalized. “That’s … what caused me to really crack, because I watched him get away with something again,” he told Rewire.

After learning he was not this rapist’s only victim, Joshua reported the September assault to Department of Public Safety Director Michael Hill and Associate Director Joanna Gallagher, who was also Title IX deputy coordinator at the time.

“I felt angry to hear that somebody else also experienced the same thing and even more graphic, and repeated,” Joshua told Rewire. “It was just a crazy amount of power that [he] exhibited over people on campus, and he has the ability to keep people quiet, so I just decided to break the silence finally.”

The Department of Public Safety, which oversees campus security and handles campus emergencies, launched an investigation. It also opened a case with the College Judiciary Committee (CJC), the judicial body that tries “major infractions of College regulations.” The CJC has the authority to impose punitive sanctions, including fines, community service, suspension, and expulsion.

The handling of his case, Joshua said, was “sub-par,” with red flags at every turn. For instance, he said the case was delayed so the defendant could submit more witnesses, but Joshua was told he wasn’t allowed to do the same. (Joshua also finds it suspicious that the defendant was allowed to use a school administrator as his trial support person; that is permitted under CJC procedure.)

Joshua then had to relive what happened “over and over again” during the four-and-a-half-hour trial. Swarthmore’s dean of students, Liz Braun, who served as convener, repeatedly questioned his state of intoxication the night of the assault, per alleged observations from a defendant’s witness, and the panel worked to determine how sexuality played a role in a male student’s rape—“how a gay person can rape another gay person.”

According to Joshua, the person who assaulted him argued he was aware of “inch measurements” and how deep the penetration went—the implication being that there was consensual sex. “Then I was asked by Dean Braun whether or not I could corroborate the inch measurements,” he said. “[The assailant] was acting like there was a ruler on site at the rape.” In an email, Joshua noted that the assailant “later proceeded to mold his account of events into a situation in which I was forcing him to have sex with me (forcing himself to insert).”

The rapist was found guilty of sexual assault and expelled in May—the first student to face expulsion at Swarthmore in ten years, claim Joshua and Hope Brinn (class of 2015), one of the main complainants behind the OCR charge.

“The College Judiciary Committee process is in the most dire need of reform,” Brinn told Rewire. Brinn reported experiencing sexual harassment and sexual assault on two separate occasions within the last two years, and said she was met with “deliberate administrative indifference” by the school. “Students found responsible for committing sexual assault were able to appeal their decision and then before the appeal was final, transfer to another school without anything on their record or on the college’s.”

While campus judicial procedures do not explicitly state it’s possible for students to leave school without anything on their record during the appeals process, they do note that a CJC hearing will not move forward if a student accused of sexual misconduct withdraws from Swarthmore before the case is tried. The only way a trial will continue, though, is if the student applies for readmission; the case would have to be heard prior to re-entry. This means an accused student could conceivably withdraw from the college and attend a different one, with none the wiser to the accusations brought against him.

Under OCR’s Microscrope

On July 12, the OCR announced it’s opening an investigation into the Title IX complaint against Swarthmore. According to a letter obtained by Rewire that was sent from the Philadelphia OCR office to the main complainants, Brinn and fellow student Mia Ferguson (class of 2015), the pair allege that Swarthmore contributed to a sexually hostile environment in part by retaliating against Brinn when a senior resident advisor told other students about Brinn’s experience with sexual assault.

The two students also claim Swarthmore “refuses” to provide survivors with living and academic accommodations, and drags out investigations beyond the general 60-day time frame set by the OCR in a 19-page federal guide released in April 2011 on how institutions should respond to campus sexual assaults. Many of the testimonies in the Title IX grievance include unresolved cases that have been open for more than 60 days, Ferguson said.

Just a week after the OCR opened its investigation into Swarthmore, Dartmouth and the University of Southern California became the latest institutions to go under the OCR’s microscope.

“There is a myth that Swarthmore has somehow been operating differently than every other elite institution just because it is ‘liberal,’” Brinn told Rewire. “That is false. It is an old boys’ network just like any other elite school. An institution with as much money as Swarthmore is bound to have corruption like this regardless of how ‘progressive’ it is.”

In the late fall of 2012, 19-year-old Brinn, a native of Wilmington, Delaware, found herself among the 27 percent of college women who’ve experienced unwanted sexual conduct, according to the National Sexual Violence Resource Center (NSVRC). She was stalked and harassed by a fellow student, who not only broke into her room while she was undressed, refusing to leave, but would send her “furious, irrational rants via email and text with threats.” He also called her in the middle of the night screaming.

When Brinn reported the sexual harassment to the administration, her complaints were met with disbelief. She says Gallagher, then the Title IX deputy coordinator, questioned what Brinn did to “cause him to act like this,” while then-Title IX Coordinator Sharmaine LaMar, also Swarthmore’s director of equal opportunity, “immediately burst into laughter.” It was “certainly not sexual harassment” because sexual harassment “has to be repeated,” LaMar said, according to Brinn.

(While the Swarthmore student handbook defines sexual harassment as either quid pro quo or “usually repeated or persistent” unwanted sexual or sex/gender-discriminate action, the OCR simply defines it as any unwelcome action “sexual in nature” that creates an adverse environment for the student. The federal department also specifically states the conduct “does not necessarily have to be repetitive.”)

Although the offender admitted his actions to Gallagher, he was not punished, Brinn said. At the end of her case, the school reported it as “harassment by communications.”

“I want Swarthmore to be compliant with the law,” Brinn told Rewire. Since filing the federal complaint, Brinn has also reported experiencing a “much more gruesome assault” during her freshman year, which is currently being investigated. “I want my emails to stop getting ignored. I want to stop being told that I’m lying about what administrators have told me. I want my assault to be called by its proper name. I want the process to be more transparent. I want these things not just for me but for all survivors on campus.”

The Title IX complaint also alleges Swarthmore staff enforcing Title IX are improperly trained, and that the school retaliated against Brinn a second time when it allowed the college’s student council president to erase her chalkings—a “typical form of political expression at Swarthmore,” she said—about her experience with sexual assault on campus, on the directive to remove anything offensive. The OCR will not investigate these two claims, noted the letter, because Title IX doesn’t regard specific training and it couldn’t determine the erasure to be adverse.

“The thing about Title IX is that it’s a lot of common sense,” Ferguson told Rewire. The 19-year-old Massachusetts native reported being raped by a close friend in her residence hall the week of her birthday in November 2011. Her case is still pending, and there has been no movement. “You support a student. You help that student figure out what to do. You listen to that student, even if you think that maybe their story is confused and muddled. … You give access to other resources, and that wasn’t happening. That’s what’s bothersome. There’s so much basic stuff that seems to be missing.”

The OCR charge was filed a little over a month after Ferguson and Brinn lodged a federal complaint with the Department of Education, on April 18, complete with 22 testimonies, alleging the school has violated the Clery Act. Enacted in 1990 and amended in 2008, the Clery Act requires colleges to report and make public sexual assault and harassment incidents. The Department of Public Safety’s most recent Clery Act crime statistics show only 12 reported forcible sex offenses on campus and six in residential facilities between 2009 and 2011. (Ferguson said she knows the statistics have yet to be updated with her case.) There were zero reported non-forcible sexual offenses, which include incest and statutory rape.

According to the NSVRC, 15 percent of college men and 20 to 25 percent of college women experience rape during their college years. A study from 2002 also found that, at one college, 63.3 percent of men who “self-reported acts qualifying as rape or attempted rape admitted to committing repeat rapes.”

This isn’t the first time Swarthmore has faced legal action regarding sexual assault. As pointed out in Swarthmore’s The Daily Gazette, the liberal arts institution was hit with a federal lawsuit lodged by student Alexis Clinansmith in August 1994, alleging Swarthmore failed to protect her from sexual harassment by a fellow enrollee. The lawsuit was amended later that year to include claims Swarthmore violated federal law by exhibiting “a pattern and practice of discriminatory conduct toward its female students.” And, much like Brinn and Ferguson’s perspectives on Swarthmore’s processes, Swarthmore students who attended the school 20 years ago criticized the college’s handling of Clinansmith’s original case.

“The problem for me was it didn’t seem any leadership has historically tried to change structural policy at all,” Ferguson told Rewire. “There are a lot of big question marks just around the basic common sense that seems to be lacking, and it all came together in all these violations that were being entirely overlooked, if not dismissed by the leadership.”

Specifically, Ferguson said the school’s leadership has dismissed egregious violations by specific staff members. Brinn, Ferguson, and Joshua all point to Tom Elverson—a former Swarthmore drug and alcohol counselor and vice president of alumni relations who also served as a liaison to the fraternities—as an administrator who’s flagrantly violated federal law. According to all three parties, the dean was known for saying, “I am first and foremost a DU [Delta Upsilon International Fraternity] brother, second an alum, third a drug and alcohol counselor, and fourth an administrator.” He allegedly claimed to be a confidential resource for students. Though Elverson, who was cited in the Title IX complaint, was required to report incidents of assault and misconduct, the complainants all say he actively and repeatedly refused to do so. He has since been let go after his dual position of drug and alcohol counselor and fraternity liaison was eliminated.

When asked why, despite student claims of impropriety, Elverson was allowed to stay in his role for at least eight years before termination, and why Braun has been allowed to continue in hers, Secretary of the College Nancy Nicely responded that the “characterization of individual staff members is completely incorrect” and the “entire staff is dedicated to addressing this issue proactively, fairly, firmly and with the highest possible commitment.”

“Let me emphasize that nothing is more important to us than the safety and security of every member of this community,” Nicely wrote to Rewire in an email, adding that Swarthmore plans to cooperate “fully” with the Department of Education. “We will not allow sexual discrimination, harassment, abuse, assault, or misconduct to exist unaddressed on this campus.”

“We are committed to devoting significant resources to making sure that we not only meet the letter and spirit of the fast-evolving laws on the issue, including Title IX and the Clery Act, but that we continue to evolve with and embody best practice in addressing these issue”s proactively,” she added.

A “Sea Change” Caused by a National Movement

At the time of the chalking incident, Brinn said she didn’t know what to do, but she knew she needed to do something. So she contacted Andrea Pino and Annie Clarktwo sexual assault survivors who filed a Title IX federal complaint against their school, the University of North Carolina-Chapel Hill, earlier this year. (UNC is currently under investigation twice over, for allegations that it mishandled sexual assault and for retaliating against a student and complainant named Landen Gambill.) Brinn then connected with Pino—who assured her everything she experienced by the school was, in fact, illegal and guided her through the steps to file a federal complaint—and was invited to join the IX Network, a private Facebook group that’s brought together survivors and activists to “talk strategy and get support.” (The group is also behind the federal complaint filed against Occidental College.) The group, of which Ferguson is also a core member, is focused on helping students file complaints, discuss best policies and procedures for colleges and universities, and educate students about their rights. The expanded group, IX Connection, now has over 600 members from 50 different institutions.

On August 6, the IX Network, with other survivors, activists, and allies, launched Know Your IX (KY9), a campaign to disseminate information and educate students about their Title IX and Clery Act rights. The movement also serves as a means to empower members of academia to stop and prevent sexual violence by providing guidance on grassroots activism and advocacy on and off campus.

Know Your IX follows the network’s other campaigning effort, a petition, which now with over 170,000 signatures, pressuring the Department of Education to hold educational institutions fully accountable for not complying with federal law. The petition has the backing of Alexandra Brodsky, a KY9 member who, along with 15 classmates, filed Clery Act and Title IX complaints against Yale University in 2011 for creating a “sexually hostile environment.” The school was found to have “serious and numerous” Clery Act violations and was fined $165,000 in May of this year.

(Rewire Online Community Manager Wagatwe Wanjuki is also involved in the above campaigns.)

“The reason people come forward, the reason we’re all part of this network, is because we want our peers to be protected and supported moving forward,” Ferguson said. “It’s not about seeking retribution even against the schools that have traumatized us. It’s about making sure our peers are safe in the future.”

As for Swarthmore’s future, the college plans to implement a series of changes to its sexual assault policies and procedures over the next year, such as hiring a new Title IX coordinator (LaMar was moved out of her role and replaced by Patricia Fischette, former trauma therapist at Swarthmore, in the interim) and reviewing “the role of alcohol and other drugs in creating an environment that can contribute to sexual conduct.” These proposed changes were informed by an interim report by Margolis Healy and Associates, a Vermont-based campus safety assessment consulting group, that was commissioned in mid-April to review the school’s policies and procedures. “We undertake this important work in the midst of a sea change occurring related to the federal laws and regulations governing how colleges and universities respond to sexual misconduct,” Swarthmore President Rebecca Chopp wrote in a July statement to the Swarthmore community.

In an April statement, Chopp wrote, “I want to state very plainly something that Dean Braun and I have consistently said for the last three years—we have zero tolerance for sexual assault, abuse, and violence on our campus.”

Kristen Houser, vice president of communications and development at the Pennsylvania Coalition Against Rape, says zeroing in on the role alcohol and drugs play in sexual misconduct is counterproductive unless colleges first recognize that sexual offenders choose who, when, how, and where to commit sexual assault, and start focusing on offender behaviors rather than victims’ responses.

“Alcohol doesn’t make you a bank robber. It doesn’t make you commit grand-theft auto. Rape is not a miscommunication to penetrate the anus, vagina, or mouth of another person with your own genitals or with a foreign object,” Houser told RH Reality Check. “It’s easy to ignore how ugly and invasive and violent, and what a personal violation, it is. Every time an assailant chooses to commit a rape, it’s absolutely a choice.”

Come the 2014-15 school year, universities and colleges across the country will have to comply with the recently passed Campus Sexual Violence Elimination Act (or Campus SaVE), approved in February as part of the reauthorized Violence Against Women Act (VAWA). Under Campus SaVE, which was first introduced by Sen. Bob Casey (D-PA), postsecondary institutions receiving federal student aid are required to adopt and disclose sexual assault and other intimate partner violence policies in their annual security reports; follow baseline tenets strengthening survivor protections and guaranteeing counseling, legal aid, and medical care; and expand program requirements to include prevention awareness and bystander intervention.

Similarly, on July 2, the Pennsylvania General Assembly enacted an education statute mandating sexual violence awareness education at higher education institutions and private schools. Per the law, programs must include a discussion of sexual violence and consent, “including an explanation that the victim is not at fault,” medical and legal assistance, and possible reproductive and sexual health outcomes. It also requires schools to use discretion and protect survivor confidentiality, as well as educators from campus security and local police, campus health centers, women’s and rape crisis centers, and campus psychological and student affairs services.

Ferguson says that while the recommendations “look great,” they neglect issues and solutions the IX Network has access to. According to Ferguson, the administration has not fully engaged the network or Swarthmore’s students; if they had, the administrators would have a better understanding not only of Swarthmore’s downfalls, but the problems arising at colleges nationwide, and would have the opportunity to exceed where other institutions, like Amherst College and Williams College—two liberal arts institutions typically ranked above Swarthmore on “best of” lists—fail. (Nicely insisted students are a “critical part” of Swarthmore’s “current and future planning and response.”)

“I feel like this could be the only way to get Swarthmore to change,” Joshua said. If Swarthmore is found in violation of federal law, the Department of Education could impose a hefty fine on the college. “They’re bringing up little anecdotal things they’re doing [to change], but probably the best way to get Swarthmore to understand is to have a financial burden for every burden they’ve caused on the psychological [well-being] of the student body and people who’ve graduated.”