Monday, November 24, 2008

UVA rebuked: Feds furious over rape case gag orders

by Courteney Stuart

Four years after the college safety nonprofit Security on Campus filed a complaint against UVA for its mishandling of sexual assault cases, the Department of Education has ruled that the university has, in fact, violated federal law by threatening victims of sexual assault with punishment if they spoke about their cases.

The ruling has major implications for victims of sexual assault on college campuses across the country, according to the man who filed the complaint on behalf of then-UVA student Annie Hylton, now Annie Hylton McLaughlin.

“It means that victims can’t be silenced at UVA or anywhere else,” says S. Daniel Carter, director of public policy for Security on Campus.

UVA’s handling of sexual assault came under fire in November 2004 when McLaughlin went public in a Hook cover story describing her alleged December 2001 rape in a UVA fraternity house by fellow student Matthew Hamilton.

When Charlottesville prosecutors declined to press charges, McLaughlin decided to seek justice through UVA channels and was granted a hearing with the Sexual Assault Board, a specialized offshoot of the University Judiciary Committee. Her experience with the SAB was “devastating,” said McLaughlin, who couldn’t understand how even though Hamilton was found “guilty” by the Board, he was allowed to stay at UVA until his 2003 graduation. Harder than that for McLaughlin: she wasn’t permitted to say a word about her case, or she could face charges of her own from the Judiciary Committee.

UVA defended its confidentiality policy as a requirement of FERPA (Family Educational Rights and Privacy Act), a federal law that protects students’ privacy. But McLaughlin and Carter argued that a later law— the Clery Act, named for Jeanne Ann Clery, who was raped and murdered in her dorm room at Lehigh University in 1986– overruled any right to privacy afforded by FERPA in cases of sexual assault. The Department of Education agreed.

“Victims need the freedom to talk about the process as part of the healing process,” says Carter. “Before, it wasn’t just about sharing this publicly, it was about sharing it with anybody. A lot of victims were afraid they’d be found out and punished.”

McLaughlin, now living on the West Coast, says she’s “gratified” with the Department of Education’s ruling, even if it took four years to arrive. It’s not the only element of McLaughlin’s case that took years to resolve. In August 2005, a Charlottesville jury weighed the evidence in a civil case brought by McLaughlin, asking for $1.85 million in damages. The jury awarded McLaughlin $150,000, but the battle wasn’t over.

In March 2006, Hamilton filed for bankruptcy in New York. McLaughlin and her attorney, Steve Rosenfield, argued that Hamilton shouldn’t be able to escape accountability.

“We don’t think the bankruptcy laws were there to discharge this kind of a debt,” says Rosenfield. Still, the possible cost of future litigation was steep, so Rosenfield and McLaughlin settled with Hamilton for $66,000 in June 2006, of which Hamilton will pay “around 95 percent.” His parents’ homeowner’s policy will pay the remainder, says Rosenfield.

Even though the amount is less than half the amount awarded by the jury– and a mere fraction of the original amount asked for in McLaughlin’s suit– Rosenfield says he’s pleased.

“He’ll be paying for some lengthy period of time– a couple of years,” says Rosenfield. “Every single month that he writes a check, he will think about the consequences of his conduct.”

Contacted through his attorney, New York based Gregory Messer, Hamilton did not immediately respond to questions.

As for UVA’s Clery Act citation, McLaughlin isn’t the only victim cheering the news.

“When colleges and universities treat the Clery Act with indifference, they do so at their own peril,” says Liz Seccuro, whose own UVA rape case made international news after her assailant, William N. Beebe, apologized to her 21 years after he assaulted her in a UVA fraternity house. He was eventually convicted of a reduced charge and spent five months in jail.

“This latest news paves the way for more safety and security for innocent young people,” Seccuro adds, “especially given the recent rash of campus rapes and murders of men and women.”

UVA spokesperson Carol Wood says the school has received the letter from the Department of Education.

“We are reviewing it,” says Wood, declining further comment.

According to Carter, the ruling carries no specific sanctions, but requires that “all necessary policy changes be made to bring the school into compliance with the Clery Act going forward.” A spokesperson for the Department of Education did not immediately return the Hook’s call, but Carter says schools typically have 90 days to prove compliance.

The Department of Education’s letter asserts that some of those changes have already have been made.

Two months after the Hook’s 2004 cover story, outrage at the school mounted and in January 2005, 400 students staged a protest at which they donned gags to represent UVA’s silencing of victims. In response, UVA rewrote its sexual assault policy in the winter of 2005. The new policy allowed for students to share information about the disposition of their sexual cases, but recommended they consult a lawyer before doing so.

That caveat concerned Hylton.

“They’re still putting some doubt into the survivors’ minds,” she said at the time, “about whether they can come forward and say anything about it.”

Susan Russell, the mother of another alleged victim of sexual assault at UVA who had launched a website,, and claimed more than 100 victims had contacted her to express their fear and frustration at UVA’s handling of their cases, also wasn’t satisfied with the changes to policy.

Like McLaughlin, she’d filed a complaint against UVA with the Department of Education in November 2004. In addition to claiming UVA violated the Clery Act with its sexual assault policies, Russell claimed the school violated Title IX, the broad set of federal laws that require equal educational opportunities for women. Among offenses she cites: that UVA violated victims’ rights by not permitting victims to change dorm rooms after they’d been assaulted there, and that no one told her daughter, after her assault, that she had a right to take a medical leave of absence without affecting her grades. Most important, says Russell, UVA’s sexual assault board used the wrong standard of proof in adjudicating its sexual assault cases– “clear and convincing evidence” when, according to Title IX, they were required to use the less stringent “preponderance of the evidence.”

Russell is still awaiting ruling on her complaint, but she says she is “pleased” with the ruling on McLaughlin’s forcing UVA to reexamine and adjust its sexual assault policies. “I always knew they were interpreting the law incorrectly,” says Russell of UVA.

Carter says the Department of Education’s ruling will help students not just at UVA but across the country.

“It’s a tool that we can give victims if they are being silenced, to say to their schools, this is a violation of the law,” says Carter, “and to get corrective action taken.”

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