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Weekly Roundup
Posted by On Friday, April 17, 2015

This week we have an app that will streamline reporting on college campuses, a new book on a campus sexual assault case by the author of Into the Wild, and a diverse collection of viewpoints on how to achieve progress on preventing campus sexual assault.

New App Promises to Improve Reporting of Sexual Assaults

Three higher education institutions are expected to pilot a new system for reporting sexual assaults. Developed by Sexual Health Innovations, the system is called Callisto after a nymph from Greek mythology. The system offers students information about how to report a sexual assault to their college and local law enforcement agencies. If students choose to report, they can do so through Callisto. If they choose not to report, they can still record information about the assault through the system. Although the school will not be able to see this record without the student’s permission, the school will be able to see aggregate statistical information about users of the system.

Importantly, Callisto has an additional feature that helps schools identify repeat offenders. Students who create a record on Callisto but choose not to file a report with their institution, can opt into a matching feature, which will send the school the reporter’s name and the name of the alleged assailant if someone else files a report on Callisto involving the same assailant. Some commentators, however, expressed concern over the privacy issues and legal protections for the system’s users. As Laura Dunn, a lawyer by training and the founder of an advocacy group for Survivors of sexual assault, explained: “As a survivor and as an activist, I think this is amazing… as a lawyer, I am cautious.”

Bestselling Author to Release Book on Campus Rape

Next week, Jon Krakauer, author of the best sellers “Into Thin Air” and “Into the Wild,” is releasing a book on campus rape. Krakauer’s new book, “Missoula: Rape and the Justice System in a College Town,” discusses multiple sexual assault cases at the University of Montana (UM). UM was the subject of yearlong federal investigation into its handling of sexual assault complaints. Two years ago, UM entered into a Resolution Agreement with the Department of Education’s Office for Civil Rights and the Department of Justice. The Joint Letter of Findings called the Resolution Agreement with UM a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault.” The Agreement provides information on important issues such as confidentiality, campus climate surveys, and standards of proof in campus adjudication processes. For the book, Krakauer relied on documentation of the investigations and adjudication of these incidents, as well as talks with psychologists about the effects of rape on survivors. According to the Wall Street Journal, “One takeaway from ‘Missoula’ is that every incident of alleged rape is different, and ambiguities abound. Mr. Krakauer provides no sweeping conclusions.”

9 Perspectives on What Will Signal Progress on Campus Sexual Assault

The Chronicle of Higher Education has collected diverse responses to the question, “what will signal progress on sexual assault at colleges and universities?” The viewpoints range from providing survivors with the tools they need to heal, to ensuring a fair process for everyone involved, to beginning prevention training before college. The contributors include lawyers, advocates, and administrators, including The President of the University of Montana. All of the pieces point to the important leadership role schools play in addressing this issue through training and strong policies and procedures around sexual violence. As Annie Clark and Andrea Pino, the co-founders of End Rape on Campus, suggest in their essay: “Change will come only when colleges lead it, rather than follow the efforts of the students who expect their guidance.”

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Campus Climate Surveys and the “Information Problem”
Posted by On Wednesday, November 6, 2013

Education surveys are nothing new. In fact, the Department of Education was established in 1867 to collect “such statistics and facts … as shall … promote the cause of education throughout the United States.”1 In his 1860 education treatise, Herbert Spencer said that asking people how they “think, feel, and act under given circumstances” to solve social problems was a self-evident conclusion: “Society is made up of individuals … and therefore, in individual actions only can be found the solutions of social phenomena.”2

Fast forward to the 21st century and schools are using student surveys to help them address the epidemic of sexual assault affecting college women. In a previous post we talked about the University of Montana’s “rape-tolerant campus” and its agreement with the U.S. Department of Education to take steps to change the campus climate.

On October 29, 2013, the University of Montana used Amazon gift cards to entice students to complete an annual safe campus survey on their knowledge, attitudes, program use, and experiences. The survey will help UM develop “effective programs and [create] positive change in sexual and interpersonal violence,” said UM psychology professor Christine Fiore. This annual survey is part of the “blueprint” for Title IX compliance that resulted from UM’s settlement agreement with the ED. The blueprint also includes educating students, faculty, and staff on what is sexual misconduct and how to file complaints.

Other investigations by the ED’s Office of Civil Rights call for annual student surveys. The State University of New York reached a settlement agreement with ED on October 31, 2013, and will begin conducting annual campus climate assessments to help improve sexual misconduct policies and procedures at its twenty-nine campuses. In May 2013, the Yale News reported that the school’s second “campus climate assessment” found, based on feedback from more than 300 students, it was making progress in addressing sexual misconduct issues.

In addition to a federal investigation, there is the risk of expensive Title IX liability to victims. When schools are faced with six- and seven-figure settlements, why does it take a federal investigation to get to the root of the problem? One possible explanation is what legal scholar Nancy Chi Cantalupo calls an “information problem” about sexual assault and how that impacts a school’s reputation for safety.

According to Cantalupo, many schools are reluctant to confront the problem of sexual violence precisely because helping victims and punishing perpetrators requires reporting. Increased reporting drives crime statistics up and makes the school look like a dangerous place to send your children. On the other hand, when victims are discouraged from reporting crimes statistics go down, making the school look safer. Thus, schools have an incentive to discourage reporting to protect their reputations.

However, sociologists and criminologists who study campus violence suggest that ignoring the problem feeds a rape-tolerant culture that leads to higher rates of sexual assault.3 Fortunately, these tragic consequences are turning into stricter enforcement and grassroots action: federal complaints by sexual assault victims are increasing, Title IX enforcement is being taken more seriously,4 and student organizations like Know Your IX are focusing national attention on the problem.

Cantalupo argues that annual student surveys provide more accurate information on the incidence of sexual violence, which helps schools turn their policies, procedures, and education programs into meaningful change. Therefore, Cantalupo recommends that all schools require students to respond to a campus climate survey before they can graduate or register for classes.

Tucker Reed has filed two federal complaints over the University of Southern California’s handling of her sexual assault complaint. She agrees that exit surveys of graduating seniors would not only be a better way to find out how many students were sexually assaulted while in college, but could also “pinpoint which programs are working and which aren’t.”

Student surveys provide a direct source of data that inform a school’s Campus SaVE Act education programs, and confront the sexual assault problem with a targeted approach to reducing the rate of sexual violence in all schools, not just those featured in the latest headlines for another federal investigation.


1. The History and Origins of Survey Items for the Integrated Postsecondary Education Data System. Report of the National Postsecondary Education Cooperative (2011).
2. Spencer, H. Education: Intellectual, Moral, and Physical, p. 70 (London: D. Appleton and Company 1860).
3. Cantalupo, N. Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence (2011) 43 Loyola Univ. Chicago L.J. 205, 218.
4. Cantalupo says, “In fiscal year 2009, OCR had 582 full-time staffers—fewer than at any time since its creation. And it received 6,364 complaints, an increase of 27% since 2002,” citing Lax Enforcement of Title IX in Campus Sexual Assault Cases: Feeble Watchdog Leaves Students at Risk, Critics Say, Center For Public Integrity (Feb. 25, 2010).

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Standards of Proof
Posted by On Tuesday, October 15, 2013

In a typical “he-said-she-said” case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused’s and victim’s credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower “preponderance of evidence” standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher “clear and convincing evidence” standard was applied and the decision was reversed.

The Department of Education has in fact established “preponderance of evidence” as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, “in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).”

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof1 requires a different level of confidence in the facts supporting a decision:

  • beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
  • clear and convincing requires at least 70-75% confidence that the facts support the decision
  • preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.2

The “beyond a reasonable doubt” standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.3  The 18th Century English jurist William Blackstone explained it this way: “It is better that ten guilty persons escape, than that one innocent suffer.”4  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a “high probability” or “reasonable certainty” that the weight of evidence favors the decision. It is applied in civil cases involving more than “mere loss of money,” such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.5

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, “[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous.”6

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM “blueprint,” preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, “substantial evidence,” is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”7 Strictly speaking, this standard only requires a “substantial” amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The “substantial evidence” standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student’s failure to meet academic standards “calls for far less stringent procedural requirements,” in terms of notice and hearing, than a student conduct violation.8

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,9 a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a “conviction for ‘possession of narcotic drugs’ in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person’s good name and reputation.” The court also pointed out that a one-term suspension from school “is a harsher punishment than he was likely to receive from either a state court … or a federal court, for a first-time offense of simple possession of marijuana.”

Under these circumstances, the court found that “any standard lower than a ‘preponderance of evidence’ would have the effect of requiring the accused to prove his innocence” because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a “constitutionally adequate” standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn’t specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,10 another federal court refused to overturn the university’s decision to suspend two public university students after they were found guilty of sexual assault even though the university’s decision was based on substantial evidence. The court found the disciplinary proceeding, while “not ideal,” was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as “whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial.” Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as “a case of differing perceptions and interpretations of the events in question.” It turns out that the deciding factor was that some of the complainant’s statements began with “I think” or “I don’t think.” The official interpreted this as a “hesitant and equivocal response” and concluded that the complainant’s credibility did not meet the higher standard of proof.

The ED found that UM’s handling of that case on appeal showed an “incomplete understanding” of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed “more training on how to evaluate evidence and the appropriate evidentiary standard to assess it.”

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what’s at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof “is more than an empty semantic exercise.”11

It has also been suggested that school officials deciding sexual assault cases may “unwittingly require clear and convincing evidence” regardless of the appropriate standard because of the serious consequences to the accused.12 What we’re left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims’ behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we’ll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.


1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: “First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened … In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. …. A second proposition … is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than “spiking the punch at an after-school meeting.” However, the court did not rule on what standard of proof should be applied but only suggested that the “clear and convincing” standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, “Preponderance of the Evidence and Student-on-Student Sexual Assault.” Boston College Law Review Vol. 53:1613, 1649 (2012).

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The University of Montana’s Cautionary Tale
Posted by On Wednesday, September 18, 2013

“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.

Systemic Change
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).

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