New allegations, new scrutiny for UNC’s sexual violence policy

Posted at 9:53 AM, Sep 17, 2016

Frustrated with the University of North Carolina’s handling of sexual violence reports, five women took matters into their own hands in 2013 by going public with their stories and pursuing justice through other means.

Sound familiar? Maybe to those following the story of Delaney Robinson this week. The UNC sophomore went public with allegations that the school failed to conduct a thorough investigation of her report of rape by a school football player on Valentine’s Day this year.

The allegations came to light after Robinson reported them to an Orange County magistrate in an effort to bring charges against her alleged attacker, Allen Artis. Artis faces misdemeanor charges, and a criminal investigation is underway to determine if felony charges are merited.

Like many schools across the country, UNC is no stranger to criticism over its handling of reports of sexual misconduct. What’s troubling to some alumni and advocacy groups about this instance is its timing, three years after the women turned their allegations into a civil rights case and two years after the school revised its misconduct policy to address some of the very problems Robinson and her lawyer now describe.

The school declined to comment on Delaney’s allegations, citing student privacy laws. In an open letter to the school community, Chancellor Carol Folt said the policy changes were intended “to add resources to provide compassionate care and accommodations for those who need support with their day-to-day logistics.”

“The issues involved in sexual assault are challenging. Inevitably, some will walk away from the process disagreeing with the outcome. That does not reflect in any way on the integrity of our employees or our process,” she said.

A new policy

The result of a year-long review by a campus task force, the revised policy is among the most thorough in the country, said former UNC student Andrea Pino, author of “We Believe You: Survivors of Campus Sexual Assault Speak Out.” Pino was one of the five women who went public in 2013 and filed complaints with the Department of Education against UNC. She also appeared in the CNN documentary about campus sexual assault, “The Hunting Ground.”

Among the most significant changes were expanded definitions of consent and incapacitation, an expanded scope of prohibited behavior, and streamlined reporting options that are easy to find on the school’s website.

The school shifted its jurisdiction over the cases, from investigation to adjudication, from a student-led panel to a Title IX Compliance Coordinator tasked specifically with the job in the school’s Equal Opportunity and Compliance Office. The school added counseling services as part of a new emphasis on “interim protective measures” in the interest of “providing care” and ensuring the safety of the reporting party and the campus community.

“These individuals and staff within these offices are well trained on how to conduct investigations, document incidents, and respond to reports,” the policy states.

Apparently, as Robinson’s case suggests, the problem is enforcement, she said.

“To this day I’m not sure if anyone has been expelled for sexual assault,” she said. “As great as your policy is, if it’s not leading to deterrence then it might as well not be there at all.”

Since the changes took effect in 2014, the school has a experienced a 52% increase in formal investigations of sexual assault, a sign that “community members feel more comfortable coming forward,” Folt said in her open letter, without specifying how many had been resolved.

‘Suspicion and condemnation’

Like Pino and her co-complainants, who claimed to speak on behalf of hundreds of others, Robinson says the school failed to take her report seriously, subjected her to humiliating questions and treatment, and dragged out the process beyond a reasonable time frame.

According to the policy, the goal is to resolve all reports within one academic semester, which includes up to 35 business days for the investigation and 25 days for rendering a decision and finalizing an outcome, if necessary. A case could take longer, depending on its “complexity,” to ensure its “integrity and completeness.”

Robinson is still awaiting a decision, despite having filed a report March 9 and being told the investigation would conclude by April 26 and reach a conclusion within 90 days of filing. She blames the delays on “countless errors and missteps” in an “ineffective investigation” by UNC’s Department of Public Safety from the moment she went to the hospital for a rape kit. A letter from her lawyer to the chancellor said the lead investigator inexplicably waited one month to send the kit to the state crime lab for testing, despite best practices for evidence handling and against the interest of processing the case in a timely fashion.

Robinson says DPS investigators asked questions about what she wore that night, how much she drank and how many men she had slept with before. Robinson’s lawyer, Denise Branch, said in the letter to Chancellor Folt that investigators proposed alternative hypotheses for why she reported the rape: She regretted the consensual encounter; she wanted to claim she had sex with a UNC athlete; she was upset he didn’t ask for her number.

The treatment “is in stark contrast to the University’s promise of protection and support,” Branch wrote. Instead, Robinson was treated with “suspicion and condemnation.”

With her accuser, the investigators displayed “camaraderie,” telling him not to “sweat it” and to keep playing football. An investigator asked if he’d gotten other girls’ phone numbers that night and told him to “rock on” when he responded yes, according to audio recordings the woman and her lawyer say they reviewed.

Such questions and treatment appear at odds with the school’s promise of a “well trained” staff versed in the policy’s definitions of consent, intoxication and sexual conduct, as well how to conduct an investigation.

The policy defines consent as an affirmative, conscious and freely made decision, conveying a “clear willingness” through “understandable words or actions.”

Silence, passivity, lack of resistance, or a previous relationship or encounter do not imply consent. A person who is incapacitated by alcohol or drugs cannot consent. No matter the level of intoxication, if a person has not “affirmatively agreed to engage in sexual contact, there is no consent.”

As for the accused, intoxication “is never an excuse for or a defense,” and “it does not diminish one’s responsibility to obtain consent.”

Fed up with waiting, Robinson availed herself of the option under North Carolina law to go before the magistrate and swear to allegations against Artis, a linebacker for North Carolina’s football team. The player was released on bond. Neither he nor his lawyer have responded to CNN’s requests for comment.

Awaiting a conclusion

As for Pino and the other women, they turned their grievances into a civil rights case by filing complaints with the Department of Education alleging numerous violations of Title IX and the Clery Act, provisions of the Education Act that prohibit gender-based discrimination or violence in schools that receive federal funding.

Like Robinson, their cases are pending.