“A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student.” Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012
Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM’s responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.1
ED’s Title IX compliance review of UM produced “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The DOJ’s parallel investigation of UM’s Office of Public Safety (OPS) resulted in a “roadmap for reform” that “will stand as a model” for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.
These problems were not confined to UM’s Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD’s “response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections.”
We’ll first look at the underlying problems that contributed to UM’s “rape-tolerant campus” because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we’ll discuss the specific steps to Title IX compliance laid out in the “blueprint” and “roadmap.”
Acknowledging the Problem
Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.2 While the MPD found there wasn’t enough evidence for criminal charges, police informed UM’s football coach about the allegations, but that report was not passed along to UM administrators until a year later.3
In December 2011, Royce Engstrom had been UM’s president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.4
Despite Barz’s report, there was internal resistance to acknowledging UM’s sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture’s use of the term “gang rape” to describe the December 2010 incident. Foley suggested that Couture should have called it “date rape.” Couture replied, “Jim, I used that term [gang rape] when I accused the four football players of rape . . . because that is what it was.”
Over the next six months, Engstrom had fired UM’s football coach and athletic director, and Foley had stepped down as UM’s Vice President.
But just a month after Justice Barz’s report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM’s Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.
Sexual Assault Case Reviews
Against this backdrop, the ED and DOJ reviewed UM’s responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM’s delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.
A sampling of cases discussed in the ED and DOJ’s Joint Letter of Findings shows that UM’s problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim’s roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.
In two other cases, UM stopped its investigation because it “assumed the victims had stopped cooperating,” even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.
Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn’t respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn’t believe her. Another former student said she didn’t report being sexually assaulted by a football player because they “could get away with whatever they wanted.” Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were “Gods.”5
And the DOJ’s investigation of UM’s campus security revealed another major problem: OPS’s responses to student reports of sexual assault were “marked by confusion, repetition, and poor investigative practices.”
For example, one OPS case narrative focused on the woman’s alcohol-scented breath and “clean and undamaged” clothing. A victim advocate said OPS interviews were “painful” for the victims because they were interviewed by several officers who asked “very personal questions” without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn’t provide MPD with enough information.
Two OPS officers described a sexual assault reported in a university residence hall as “regretted sex.” And OPS Chief Taylor told investigators that the responding officer’s job is to determine if the sexual assault is “provable.” However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but “is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true.”6
Based on ample evidence, the DOJ concluded that the OPS’s “failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination.” By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.
With mounting evidence and media coverage of UM’s sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, “If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it.”
As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take “actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment.”
The ED’s and DOJ’s findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.
In future blog posts, we’ll dig deeper into the UM investigations and the resulting documents that provide the ED’s and DOJ’s “blueprint” and “roadmap” for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.
1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS’s Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating “I think that clearly the evidence in the case indicates that what happened was with consent, not without consent,” he says. “There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don’t think because it’s odd makes it automatically a non-consensual situation.”
4. Justice Barz also noted, “I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe ‘lying’ is also covered under the Student Conduct Code” (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a “widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down.” In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, “False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault,” 3 The Voice 1-3, NDAA’s National Center for the Prosecution of Violence Against Women (2009).