Originally published in print and online by the Eagle in April 2016.
“Find a place where you feel safe. Contact someone you trust . . .”
These are the first words of the University’s sexual assault resource poster, pasted on the back of every bathroom stall door across campus. But in reality, navigating the sexual assault reporting process can be a lot more difficult than just confiding in a friend or RA.
Faith Ferber can attest to that. Ferber, a junior in the College of Arts and Sciences, maneuvered the multitude of steps involved in reporting, investigating and appealing a sexual assault claim through the Student Conduct and Conflict Resolution office on campus over the past year.
Ferber’s complicated student conduct experience went viral this spring after she lodged a Title IX complaint against the University – more than a year after she was sexually assaulted off-campus in February 2015. According to Ferber, she filed the complaint with the Department of Education’s Office of Civil Rights (OCR) on the grounds that she was made to sign what she claims is an illegal confidentiality agreement during her student conduct hearing, among other complaints. With nearly 400 days between the night of her assault and the announcement of her complaint filing, Ferber’s complex case shines a light on just how muddled a sexual assault report can get – both for the students involved and the administrators working behind the scenes.
Problems with the process
Like the poster recommends, Ferber first found someone she trusted to help her navigate the process and for guidance on her experience. She immediately texted her then-boss, Daniel Rappaport, a sexual assault prevention coordinator in the Office of Advocacy Services for Interpersonal and Sexual Violence (OASIS). Ferber was Rappaport’s intern in OASIS and texted him to ask to discuss the incident.
She first turned to Rappaport because he was a confidential resource and was not obligated to report any of her statements to University administrators. She said she waited to file an official report because she worried that her experience was not serious enough to be considered a sexual assault because she was not raped.
“I didn’t think that what happened to me was valid enough, and I should’ve just gotten over it,” she said.
According to Ferber, she found that her case does in fact fit the University’s broad definition of sexual assault as “any intentional touching with any object(s) or body part(s) that is against a person’s will or consent.”
Ferber said the incident continued to weigh on her, and in early April 2015 she filed an official report with Marianne Huger-Thomson, senior director of Academic Support and Access, who is one of many University employees mandated to file a report if a student claims to have been sexually assaulted. Ferber said she was notified that the University had completed its investigation on April 9.
At that point, the University had two business days to record the crime in the daily crime log, according to provisions of the Clery Act, a federal law that mandates university methods for recording campus crime data. Instead, Ferber said, the crime was recorded on April 29 – nearly three weeks after the investigation was complete. Crime logs provided to The Eagle confirm that the assault was recorded as a sex offense on April 29, with the crime listed as taking place on Feb. 10.
Meanwhile, the University also should have been working toward completing a student conduct hearing involving Ferber, her alleged perpetrator and a panel of three conduct judges, according to Title IX guidelines from the Department of Education.
Though the Student Conduct Code guarantees a “prompt, fair and impartial resolution” to sexual assault student conduct proceedings – and the Department of Education recommends a 60-day timeframe to complete a sexual assault case – Ferber said Michelle Espinosa, associate dean of students, told her that the hearing would have to wait until the fall semester because a spring hearing would be “too close to finals.” When asked to confirm this detail, Espinosa said she cannot speak to this specific conversation, but said finals do create “a high degree of difficulty” for scheduling hearings.
Dr. Robert Hradsky, assistant vice president of campus life and dean of students, who held the responsibilities of Title IX Coordinator until last December, said the University takes each complaint seriously and works diligently to resolve it as quickly as possible.
“If the university is on break, we attempt to identify hearing panel members who are available during the break period, but this is not always possible,” Hradsky said in an email.
The University eventually tripled the recommended 60-day timeframe by delaying Ferber’s hearing until Oct. 30, 2015 and then releasing her assailant’s consequences on Nov. 9 – a full six months after the completion of the investigation.
“I think that they operate under the assumption that people who are assaulted just want to put it behind them, and we don’t want to think about it anymore, [and] we want to just be done with it as quickly as possible, so they tell us things and take advantage of that and hope that we’re just not going to follow up on it,” Ferber said.
But Ferber was committed to following up on the case. She appealed her perpetrator’s sanctions – a year of disciplinary probations, an online education program and a required essay – on the grounds that such punishments were insufficient, but she was denied her request on Dec. 9. The responsible individual also appealed his sanctions on the grounds that they were too harsh, but he too was denied, according to an email from Katie Porras, director of student conduct and conflict resolution.
In February 2016, Ferber asked Porras, who was enforcing the sanctions for the perpetrator, whether she would be notified when he completed the essay component. In an email Ferber provided to The Eagle, Porras told her this information was confidential. “Due to confidentiality in student records, our office cannot inform or share with you materials associated with the respondent’s completion of the outlined sanctions,” Porras wrote in the email.
In fact, confidentiality is at the heart of the series of Title IX violations Ferber said she filed in a complaint against the University in March. While speaking at a Department of Justice panel on reporting sexual violence through student conduct processes in December 2015, Ferber said she learned that Title IX prohibits schools from requiring students to sign a nondisclosure agreement.
“I had to sign a confidentiality agreement, and I didn’t know that it was illegal,” she said. “I signed it and I didn’t think twice about it because I trusted that the administration wouldn’t make me do something that was illegal.”
But based on comments from Heather Pratt, AU’s current Title IX program officer, the legality of AU’s actions may come down to a semantic technicality. Pratt said AU uses a confidentiality policy, which differs from a non-disclosure agreement. However, in interviews and email correspondences with The Eagle, Pratt and other administrators failed to provide a clear definition of either term.
The policy in question, titled the “Honesty and Confidentiality Policy,” is used in all student conduct processes at AU and prohibits both parties from publicly disclosing any information about the hearing’s proceedings, effectively, anything that could only be heard or seen by the people present at the hearing.
Gail Hanson, vice president for campus life, said that if students are confused at the time of a hearing, they can ask administrators for clarification, rather than turning to a Title IX complaint.
“If things don’t work for you, everybody here is committed to continuous improvement, you just have to tell us, you don’t have to file a complaint,” Hanson said. “If there’s something wrong with our process, you can find whichever one of us you’re comfortable with to say, ‘This is confusing to us. When I saw this I couldn’t make sense of it to find my way.’ If it doesn’t make sense, we’ll work on it.”
Reviewing the case
Ferber’s allegations, first publicly reported on March 8, triggered an immediate administrative review of her case and of the confidentiality policy, according to Hanson, who sent a memorandum to the AU community in a direct response to the media coverage of the case. However, the University had not received an official complaint notice from the Department of Education at the time of publication.
“I had to sign a confidentiality agreement, and I didn’t know that it was illegal,” she said. “I signed it and I didn’t think twice about it because I trusted that the administration wouldn’t make me do something that was illegal.” -Faith Ferber, CAS ’17 and sexual assault survivor
“We heard loud and clear that [the confidentiality] statement was misunderstood,” Hanson said. “That’s enough to trigger our review, and we think we’re pounding it into better shape with more explicit exceptions to the confidentiality understanding that we have.”
Hanson added that these changes are unlikely to be implemented this year, and she added that the University may not be found at fault for its current policy.
“Whether or not the [confidentiality] statement would be something that [the Office of Civil Rights] would tell us that we can’t use is almost a moot point because we’re not going to use exactly that statement going forward,” Hanson said. “We’re going to use one that sets out explicitly that you may tell your story.”
But Ferber said that even when she tried to tell her own story by posting about her perpetrator’s consequences on Facebook, she was reprimanded by the University.
“When I posted a Facebook status saying my perpetrator was let off with disciplinary probation, I got called into the student conduct office and was told I was violating the confidentiality agreement,” she said. “So I can’t talk about it, and I’ve already gotten in trouble for it.”
While Hanson said the University is working to amend the current policy, Ferber said discussing the potential benefits to a confidentiality agreement is “not a conversation worth having,” since Title IX already prohibits nondisclosure agreements.
Ferber wants to see the University impose harsher sanctions on people found guilty of sexual misconduct or assault. For her own case, Ferber had wanted her assailant, w h o m she said i d e nt i f i e d himself as a member of a University recognized fraternity, to be removed from Greek life. A series of miscommunications between Ferber and administrators led her to believe her perpetrator would be banned from Greek life as a result of his disciplinary probation, which was not the case.
Looking at the campus community at large, Ferber believes assailants need to be taken off campus.
“One of the really unfortunate things about colleges is that their number one job is to protect the University, not to protect students from harm,” Ferber said. “I think that it’s not too much to ask for that people who are found responsible of sexual assault are not on campus. I don’t think that that’s such an outrageous request.”
What comes next
Perhaps due to their controversial nature and subsequent appearances on news sites and social media – including a NowThis video that has been viewed over 370,000 times on Facebook – Ferber’s complaints have already triggered a response from administrators, students and alumni.
Over 68,000 alumni have signed an online petition demanding much of what Ferber wants from the University: a strict adherence to a 60-day timeline, prohibition from Greek life and athletics for assailants and for the confidentiality agreement to be eliminated, among others.
The campus-wide Sexual Assault Working Group (SAWG), chaired by Hradsky, has also taken action. Student Government President Sasha Gilthorpe’s Director of Sexual Assault and Prevention, Amanda Gould, has served in the group for the past two years and said the policy sub-committee of SAWG is currently working to “re-write” the honesty and confidentiality policy to clarify what can and cannot be said after a hearing takes place.
Yet questions remain about the long-term implications of Ferber’s public outcry against the University’s policies. Hanson expressed worry that the complaint would raise a level of distrust about the administration’s treatment and support for survivors.
“When we have a complaint like this, it makes a lot of people angry. It discourages people from stepping forward, it doesn’t encourage them, and we’ve already seen a little bit of evidence of that,” Hanson said. “I don’t know that we’ll get less reports, but in confidential conversations, students might say, ‘I’ve been watching all the things that have been happening, and I’m not sure it’s worth it for me to try to pursue this.’ That’s the sadness out of all of this.”
According to Ferber, other survivors have reached out to her and indicated their desire to file complaints against the University after seeing her story online.
“Whether they’re going to go public with it the way I did or keep it private and anonymous, that’s up to them, but I am not the only person who has been wronged by AU,” Ferber said. “It’s bigger than me and I wish that people can see that it’s bigger than me, it’s the entire community.”