Thursday, Sept. 21, 2017 — The system

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Thursday, Sept. 21, 2017

IDS Indiana Daily Student | idsnews.com

242 postsecondary institutions are under investigation by the federal Office of Civil Rights. The office has opened 345 individual cases looking into these schools. All 242 are under at least one investigation.

71 schools are under at least two investigations.

18 are under at least three investigations. Nine are under at least four investigations. Three are under at least five investigations. IU is one of those three schools. SOURCE U.S. DEPARTMENT OF EDUCATION OFFICE OF CIVIL RIGHTS

The system

The Indiana Daily Student spent the past year looking into how IU investigates and decides student cases of sexual assault. Here’s what we found.

About the series Story by Carley Lanich clanich@indiana.edu | @carleylanich

Photos by Nicole McPheeters nmkinsey@gmail.com | @nic_mc23

Multimedia by Emily Miles elmiles@iu.edu | @EmilyLenetta

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n a yearlong investigation, a team of reporters from the Indiana Daily Student interviewed more than a dozen current and former students about their experiences in the IU Office of Student Ethics, recently renamed the Office of Student Conduct. The team also reviewed lawsuits by students who have sued the University, saying their cases were unfairly handled, and interviewed the attorneys representing students in these cases. The IDS team set out with a simple goal: to better understand the system of sexual assault reporting at IU. It’s difficult to understand the reality of this system because students’ reports are typically kept anonymous. After a long IDS history of reporting on sexual assault and this office in particular, we shifted our focus. We went directly to students.

Through word of mouth, fliers on campus, and sharing our own stories via social media, we sought to understand the system through those who have experienced it. Our focus was to learn about the system from multiple perspectives, including both those who report sexual assault and those who are accused. While many volunteered their experiences reporting sexual assault at IU on the record, those accused of sexual assault were reluctant to attach their name to allegations affecting their future education and employment. The IDS recognizes the stigma placed on these current and former IU students, and in turn spoke with four local attorneys who have collectively represented dozens of students accused of sexual assault. Reporters verified the existence of IU investigations for all students quoted in this series through documentation and email correspondence between the students and the Office of Student Ethics. We did not set out to prove or disprove specific allegations among students. Instead, we looked to better understand the system charged with making those decisions. The IDS also interviewed IU administrators, national Title IX experts and those responsible for sexual as-

sault services at other Big Ten universities. Reporters parsed through hundreds of pages of Title IX policy, placed multiple public records requests and sifted through documents provided by the students themselves. Let this be clear: the IDS does not want to discourage students from reporting sexual assault. We want students — including both those contemplating making a report and those accused of assault — to take advantage of resources available at IU and in the Bloomington community. The IDS wants students at IU to feel safe speaking to administrators. We want students not to fear walking into the Office of Student Conduct. And we want students, both those reporting and those accused, to be treated fairly and for their rights to be respected. The IDS is dedicated to our continued reporting on issues of sexual assault. If you are someone who has experienced sexual assault or has been accused of sexual assault, the IDS wants to hear your story. Contact the IDS investigations team at investigations@idsnews.com. See more online For audio, video, graphics and a 360-degree view of the system, see specials.idsnews.com/the-system.

Letter from the editor

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hen I was named editor-inchief for this semester, I had no idea this behemoth of a story was awaiting my approval. My predecessors had made reporting on sexual assault a priority for the Indiana Daily Student, but like with other editors, I also had the option to veto it. Obviously, I didn't. It was too important not to run. Investigating sexual assault is not a problem IU faces alone, but it is a problem the University can work to improve. As a Big Ten school, IU's actions are seen by others. The University not only has the power to change its own policy, but in a time where sexual misconduct policy is a topic of national debate, IU can set a precedent in reform for those watching. Carley, Nicole, Emily and Taylor spent more than a year reporting this project. It was a series that required a lot of hard work, and this team of journalists, along with our editors, went

above and beyond by working dozens of hours every week. The reporting team pored through hundreds of pages of policy, filed multiple public records requests and interviewed students, attorneys, administrators and Title IX experts. Why? Because we wanted to tell this story the way it needed to be told. This series does discuss flaws within the system, yes. But, it is not our intention to discourage students from reporting. We don’t take this topic lightly. Our staff members have reported their own sexual assaults to the University. Our series is meant to provide readers with a sense of what happens when a sexual assault is reported, and our hope is to provoke change. Our specific examples of how other universities handle these cases show how IU can change by creating an environment where students feel safe to report. But our work doesn't stop here. We still want to hear your stories,

and our dedication to this issue extends beyond this series. The IDS staff shared our stories with you last fall, and you shared yours with us. We invite you to continue sharing with us at investigations@idsnews.com. And as always, we want your feedback. Send us an email at editor@idsnews.com or tweet us @idsnews. As your campus news source, we’re here to serve you. And as your news source it’s our job to tell you stories that matter.

Jamie Zega editor-in-chief

Emily Abshire managing editor

Eman Mozaffar managing editor of digital

Mia Torres creative director


2 INVESTIGATIONS

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

IU’s investigations of sexual assault promise fairness. But many students who have been through the system describe it as deeply flawed.

The hearing room sits empty inside of the Office of Student Conduct. This room is used for university-dubbed “complainants” and “respondents” to meet with an IU staff panel to hear cases of misconduct.

A path of frustration In a heated national conversation, criticism of university sexual assault investigations is multiplying. IU is no different. Students on both sides — those who have reported and have been accused — say IU’s system can do better.

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he freshman didn’t want to go. She was so anxious about sitting in the same room with the man who raped her that her roommate found her sobbing that morning in their dorm bathroom. The roommate calmed her down and talked her into showing up for the hearing. In the hearing, she noticed the words written on the wall. Integrity. Civility. Fairness. Josie Levine, 18 at the time, had reported to IU’s Office of Student Ethics that another student had assaulted her in her room at Collins Living-Learning Center while she slept. Josie doesn’t recall much about that night in the fall of 2013. She’d been drinking with friends, and they had put her to bed early. At around 3 a.m., another freshman who lived one floor up let himself into Josie’s room where she says the man raped her. A month and a half later, Josie was sitting in front of a panel of three hearing officers from IU who would decide the case. The accused student sat just feet away, separated from Josie by a temporary divider meant to help her feel safe. But the divider did little to stop the student from craning his neck around it to taunt her. “You’re so beautiful,” she remembers him repeatedly telling her. “Why would I ever want to do anything like this to you?” Despite policies preventing direct contact between students during these hearings, Josie says the panel of University employees did nothing to stop the other student’s behavior. A victim advocate accompanied Josie in the hearing room, but the University’s rules didn’t allow the advocate to speak. After the seven-hour hearing, the panel found the other freshman responsible for sexual assault and suspended him for a year. Josie was shocked to learn he hadn’t been expelled. What if he returned before she graduated? “It was such a slap on the wrist,” she said. Her disillusionment with the Office of Student Ethics is all too common. Over the past year, the Indiana Daily Student has interviewed a dozen women who reported sexual assault to the Office of Student Ethics, recently renamed the Office of Student Conduct. On a campus plastered with flyers touting IU’s intolerance for sexual violence, many of these women said the system let them down. “I feel like on a scale of A to F in effort, they failed,” said Hailey Rial, 20, who reported being sexually assaulted as a freshman. “This is supposed to be a process that is both quick and efficient

Josie Levine says she was sexually assaulted her freshman year in Collins Living-Learning Center. Josie was disgusted by IU’s inability to create a safe environment in her University hearing.

and fair, and I don’t think it was quick, efficient or fair.” Many women prefer to remain anonymous after reporting sexual assault. But for this series, several students were frustrated enough with their experiences at IU that they agreed to be identified. Stephanie Chinn, 23, told IU that another student had raped her at a fraternity formal. But her case was drawn out for an entire school year, she says, when the Office of Student Ethics lost her file. “It was like someone broke both my legs, and then Ethics told me to like run as fast as I can just to hit a brick wall,” she says. In recent days U.S. Secretary of Education Betsy DeVos has critiqued these investigations. Her recent statements announcing a review of federal guidance for how universities should respond to campus rape has angered many women. Some fear calls to end university-led sexual misconduct investigations will discourage survivors from reporting sexual assault. Rape is real, the women believe, and although response to reports of sexual assault is flawed, an improved system can help women fight back. But, students who reported weren’t the only ones critical of how IU handled these cases. Male students accused in the system were reluctant to be interviewed. Even some who were cleared of such allegations said they feared the stigma of rape following them as they began their careers. But four lawyers who have represented dozens of male students accused in the hearings told the IDS that IU’s system is a sham that violates due process. “The University has no business liti-

gating and adjudicating things that are out of its purview,” said Amelia Lahn, a Bloomington attorney who used to work in the Office of Student Ethics. The University system lacks the checks and balances of the criminal courts, she said. “It’s just not a safe place to do this kind of hearing.” One male student, cleared last year of sexual assault accusations, put it more simply. “The whole process seemed to be engineered against the accused,” he said. “They’ve completely skewed it so that if you’re accused, you have very little wiggle room to try to prove your innocence.” Among the problems described by students and attorneys: During hearings, the University silences lawyers and advisers and leaves students to advocate for and defend themselves. Some women have been put in the uncomfortable position of directly questioning their alleged rapists — or answering questions from those men. The University’s files in such cases are kept secret throughout the investigation, even from the students who are involved. The students are not allowed to see the files — or to read the allegations made against them — until shortly before their hearings, when they have little time to prepare. The administrator in charge of this system resigned last year after he was accused of sexual assault. The University leaned on a close connection, a retired law professor, to review the administrator’s handling of cases. But the professor did not speak to a single student. IU issues no-contact and no-trespass orders to protect students from re-

taliation after they report sexual assault. But IU’s own police department cannot enforce these orders, and the University seldom does more than issue warnings to students who violate the orders. The hearing officers who decide the outcome of the cases — most of them IU faculty and staff members — receive limited training and lack the experience of lawyers and judges who deal regularly with accusations of sexual violence. IU strong-arms students called as witnesses in these cases, placing holds on their academic accounts unless they cooperate with investigators. The holds, which are also used against students accused of sexual assault, prevent class registration, transcript requests and graduation. IU officials refused to comment on specific student cases. But the University acknowledges that the stakes are high whenever one student accuses another of sexual assault. Provost Lauren Robel said in an interview with the IDS that the University is committed to fighting sexual violence. She said the University is constantly working to make the system more sensitive and fair. “We do try to stay as on top as of this as we can,” Robel said. “No system is perfect. No one will come out with their underlying wounds healed completely.” Like many IU officials, the provost pointed out that IU is a university, not a police agency, and that student conduct hearings are not criminal trials. “We try to be as fair as we possibly can with the knowledge that this is not a criminal court. This is an educational institution,” the provost said. “Our goal is not to duplicate the criminal justice system. We’re not a criminal justice system. Our goal is getting students moving back to degrees.” Room to change Nearly all universities have some process for investigating sexual assault. It allows them to uphold their own conduct codes, keep predators off campus and protect students from sitting next to their rapists in class. But across the country, dozens of students — most of them men accused of sexual assault — have filed federal lawsuits arguing these systems violated their rights. Sexual assault can be hard to define, and students are often reluctant to report, so creating an equitable policy can be difficult. Universities must balance encouraging these students to report with providing fairness to those accused. SEE PART ONE, PAGE 3


INVESTIGATIONS 3

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

» PART ONE

CONTINUED FROM PAGE 2 “Universities are trying to do the best they can,” said Robel, a lawyer herself. She serves on a board at the American Law Institute where judges and educators debate how institutions such as IU can strengthen their policies for investigating these cases. But IU’s methods are under more scrutiny than most. IU-Bloomington is the subject of five investigations by the federal Office of Civil Rights, which reviews universities’ handling of sexual misconduct cases. Of the 242 institutions under review as of this summer, only one other university, Cornell University, was the subject of more open investigations than IU. One of IU’s five investigations involves a complaint filed by Hailey Rial, who reported being sexually assaulted at an off-campus fraternity party in 2015. In her case, IU interviewed dozens of witnesses and conducted a four-hour-long hearing. Ultimately, the hearing officers cleared the accused of sexual assault. “I just wanted IU to be held accountable.” Federal law requires all universities to respond to reports of sexual violence, but doesn’t dictate how. The U.S. Department of Education’s Office of Civil Rights offers some guidelines — the same guidance DeVos is looking to reconsider — regarding timeframes and standards of evidence. But these guidelines leave IU plenty of room to change its system. In a review of policy at more than two dozen schools, including all the other institutions in the Big Ten, the IDS found wide differences in how universities investigate sexual assault. Some institutions allow students not only to see their files, but also provide them with copies — something IU is unwilling to do unless confronted with a subpoena. Some universities do not hold hearings at all, relying instead on written statements from witnesses. Some allow attorneys to speak at hearings on behalf of students. IU can change its system almost any way it wants. Fallout from scandal The credibility of the Office of Student Ethics took two serious hits in recent years. In 2015, Jon Riveire, an assistant director in the office that investigates student misconduct on campus and in dorms, was fired after Bloomington police found dozens of images of child pornography on his university computer inside the Office of Student Ethics. The photos, BPD reported, showed adults having sex with toddlers. Riveire pleaded guilty to possession of child pornography and was sentenced to a year of home detention. Then, a year later, came Jason Casares.

Casares oversaw all of IU’s investigations into sexual assault. He chaired the panel that heard Hailey Rial’s case. It was Casares, in fact, who called Hailey after the hearing to say the panel didn’t find enough evidence to support her allegation. A month after Hailey’s case ended, a woman from New York posted a tweet accusing Casares of sexually assaulting her at a conference in Texas. Casares insisted he was innocent but resigned from the Office of Student Ethics. Hailey, still angry about the dismissal of her case, was stunned at the news. How ironic was it that the man who oversaw her sexual assault case had himself been accused of sexual assault? “That just took it to a whole new level,” she said. Casares was cleared in the Texas case after an investigation by the Fort Worth Police Department. The University still had to conduct its own investigation. Even before Casares resigned, IU announced that it was reviewing all sexual assault cases that the administrator had overseen that fall, including Hailey’s case. She was shocked a couple of months later when she learned that the review had upheld the integrity of the hearing. No one from the University had ever talked with her. The review was conducted by an IU Maurer School of Law professor emerita who based her findings solely on information provided by the University. Julia Lamber examined IU investigation files, listened to audio recordings of the hearings and interviewed faculty members who served alongside Casares on the hearing boards. In her two-month-long review, Lamber didn’t interview a single student. Emily Springston, the Title IX coordinator for all IU campuses, said the University didn’t want to involve students and unnecessarily open old wounds. “There was a finality to those cases,” she said. “A great deal of effort was made not to revisit a case with individual parties again, not to open something and talk to them again if it wasn’t seen as necessary.” The review found no undue bias or erroneous outcomes in any of the cases Casares had heard that fall. Neither Lamber nor Casares responded to multiple IDS requests for comment. Students who have been through IU’s system found the Casares review to be one more example of the Office of Student Ethics’ disregard for student input. In the last two years, three former IU students have filed federal lawsuits claiming IU’s system is biased against men. One lawsuit points to a blog Casares wrote, citing research that false reporting is rare. “I have learned you should always believe the complainant,” Casares wrote.

“It was like someone broke both my legs, and then Ethics told me to like run as fast as I can just to hit a brick wall.” Stephanie Chinn, who says her case was drawn out for an entire school year when the Office of Student Ethics lost her file

“The whole process seemed to be engineered against the accused. They’ve completely skewed it so that if you’re accused, you have very little wiggle room to try to prove your innocence.” A male student, cleared last year of sexual assault accusations

“Our goal is not to duplicate the criminal justice system. We’re not a criminal justice system. Our goal is getting students moving back to degrees.” Lauren Robel, Indiana University provost

A difficult education Some students, when they learn that

the University’s Office of Student Ethics is investigating them, are alarmed to discover they don’t have the same rights as they would in criminal court. Dean of Students Lori Reesor, who hears appeals to IU’s sexual misconduct rulings, said there’s good reason for that. The University’s system, she told the IDS, is designed to educate students, not to punish them. “We understand that, developmentally, students — at least undergraduates from 18 to 22 — are in a really unique opportunity to learn and grow about their own choices and decisions and behaviors,” Reesor said. “So we’ve created a system to help them learn from that, as opposed to just being a punitive system, which is mostly what the legal system is.” IU’s student conduct system is a precursor to the workplace, Reesor said. Allowing an attorney to speak on a student’s behalf at these hearings would be inappropriate, she said, because students need to learn to advocate for themselves. “If you don’t take care of yourself,” Reesor said, “then who will?” Every defense attorney interviewed for this story took issue with this attempt to brand its system as educational. “That’s a ridiculous notion,” said Bloomington attorney Joe Lozano, who frequently represents accused men in IU cases. “And I frankly, at times, think that that’s used by the University to be able to kind of just do what they want.” The website for the newly renamed Office of Student Conduct — the office that investigates all kinds of allegations, from cheating to drugs to rape — frames everything in terms of its educational benefits. “The Office of Student Conduct can help you recover from the occasional thinking error. We are not here to punish students for poor choices. We are here to help you take responsibility for your actions, learn from poor decisions and move forward in your Hoosier experience,” its website reads. The breezy tone of this statement doesn’t reflect the gravity of what can happen to students accused of sexual assault. If the hearing officers find a student responsible, that can lead to expulsion and a permanent mark on a student’s transcript. Students on either side of IU’s hearing table found it insulting that the University defends the system as “educational.” Exactly what kind of education, they asked, are they getting? “If the purpose is to be educational, then they wouldn’t have real punishments with real consequences,” said a male student who was cleared last year of sexual assault charges. “That’s such unbelievable bullshit that administrators would even have the gall to say something like that.” Hailey Rial put it more simply. “I wouldn’t want anyone else to have to learn what I learned by going through this.”

IU’s Office of Student Conduct is in the Alice McDonald Nelson Building on the corner of North Jordan Avenue and East Law Lane. All meetings with investigators are universities hearings are in this office.

A look at IU and sexual assault through the years April 4, 2011

Dec. 15, 2013

March 12, 2014

April 29, 2014

The Office of Civil Rights releases a Dear Colleague Letter with guidance for how all federally funded schools can respond to sexual assault reports.

Josie Levine attends a hearing in the Office of Student Ethics to decide the outcome of a report of sexual assault from October 2013. About a week later, Josie was informed the man she accused of sexual assault was found responsible of sexual assault and sexual contact without consent.

The Office of Civil Rights opens its first investigation into IU-Bloomington’s system of sexual misconduct reporting. This investigation is still pending.

The Office of Civil Rights issues additional federal guidance in the form of a question-and-answer document with advice on how to best respond to reports of sexual violence.


4 INVESTIGATIONS

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

Speaking out When students report sexual assault, they look to their universities for safety and protection. The IDS interviewed a dozen women who reported to IU. All but one said the University failed them.

All of the women’s stories are different. And all of them are the same. All of them were IU students who say they were violated. All of them turned to the University to protect them. And almost every single one of them agrees the University failed them. They talk about how the men who had raped them were allowed to get away with it. Even when the University punished their attackers, the men were allowed to return to campus months later and wander freely. The women describe how IU promised to protect them and how easily that promise was broken. Despite orders to stay away, the men kept showing up again in their lives. One woman remembers her attacker trying to sneak onto her floor of her dorm. Another still talks about the times, not long after IU expelled her rapist, when she found the same message scrawled separate times on her door at Wright Quad. Die cunt The University did almost nothing, she said. They moved her to another room in Wright for a couple of days, but then sent her back to her original room. She reported the threats to IU police, but she said they didn’t take fingerprints from the door or even come up to her floor. Instead, they interviewed her in Wright’s parking lot, checked some surveillance video and told her they couldn’t prove who’d made the threats. She was so unset-

tled, her friends walked her to class for weeks. Many of the women say that the hearings convened by the University for their cases were also traumatic. They say they were harassed, humiliated and ignored. They were made to defend themselves and were forced to play amateur lawyer and come up with the questions posed to their attackers. Their friends were punished for helping them. One woman says a hearing officer asked her insulting questions about what she had been wearing on the night in question. For the past year, the Indiana Daily Student has reached out to students – both female and male – who have reported sexual assault, wanting to hear their views on how IU dealt with their cases. The IDS passed out flyers all over campus, posted notices on social media and published announcements in the paper’s print version. To embolden others to share their stories, IDS staffers tweeted their own experiences with sexual assault. No male students came forward. But the IDS interviewed a dozen female students who have reported sexual assault to the University’s Office of Student Ethics, recently renamed the Office of Student Conduct. Of these 12 women, only one uniformly praised the University’s handling of her case. The other 11 women — six of whom agreed to be identified — returned again and again to recurring problems with the system, many of which are within IU’s power to change. Here are some of the problems the women repeatedly described in the system: A lack of protection Sara Hutson complained to the University after she caught another freshman hiding in her room in McNutt, watching her undress. In the past, she said, this same student — who lived on her floor — had grabbed her around the waist just outside of the floor’s bathrooms, biting her neck and breast. The man had apparently been eating pistachios while he peeped at her from behind her bed. For months after she reported the incident, Sara

found pistachio shells where he’d hidden. As investigators pursued her complaint of sexual assault, the Office of Student Ethics transferred the male student out of McNutt and into another co-ed floor at Forest Quad. The office also issued a notrespass order and a no-contact order, informing him that he had to stay away from McNutt and that he could not call, text or email Sara. Not long after the orders were issued, Sara says, the man tried to sneak back onto her floor at McNutt in the middle of the night. In a panic, Sara immediately emailed the IU investigator handling her complaint, but the investigator didn’t respond for several days. When the investigator finally did reply, she told Sara she had talked to the male student and he had claimed he didn’t know he was supposed to stay off of McNutt property. The investigator told Sara she’d warned the young man to not violate the order again. The University’s inaction left Sara feeling angry. Didn’t the notrespass order count for anything? What was the point of the University warning him again, if the original warning wasn’t enforced? “It couldn’t have been more clearly stated on the order,” Sara said. “I just don’t see how that got confused.” Until later that semester, when IU ruled the man had committed sexual assault, Sara avoided common areas on campus such as Wells Library, knowing the University orders carried no authority to protect her if the two students ever met again. IU suspended the man in October through the end of the school year, but he stayed on campus for one of those two semesters as he appealed the decision. A few months after he lost the appeal, he was back. His presence on campus that next fall came as a surprise to Sara, who said IU gave her no warning before his return. “If you commit a sex crime on campus,” Sara said. “I don’t think you should come back to a campus ever.” Then he violated the no-trespass order again. Sara was stocking

Top left Sara Hutson, now an IU graduate, says she was sexually assaulted her freshman year in McNutt after a floormate hid in her room and watched her undress. When she reported to the University in August 2012, IU’s policy had no provisions to sanction students for voyeurism. Top right Stephanie Chinn says she was sexually assaulted at an off-campus fraternity formal in May 2016. After she reported to IU, friends of the man she says raped her often harassed her at bars offcampus, outside the boundaries set by her University-issued no-contact order. Bottom left Hailey Rial says she was sexually assaulted her freshman year at an off-campus fraternity party. After the University wrapped up its months-long investigation of her report and decided against sanctioning the man she accused, Hailey said felt that the system failed to bring her justice. Bottom right Josie Levine says she was raped her freshman year in her dorm room at Collins Living-Learning Center in 2013. When she sat for her IU hearing, the three University employees responsible for deciding her case did not stop the man she says raped her from taunting her. The man was found responsible and was suspended from the University for a year, after which he would be able to return to campus.

shelves at the Gresham Food Court in Foster Quad when he walked in, made eye contact and sat down to eat dinner. This time, knowing the Office of Student Ethics would be of little help, Sara went to her supervisor’s office, where together they called IU police. It took 10 minutes on the phone to convince the dispatcher to send officers to the food court. Again, she discovered the no-trespass order was essentially meaningless. The dispatcher, she says, told her the officers could not make the other student leave unless she had a printed 8½-by-11 copy of the order on hand. “Why would I have this two-page document with me at all times?” Sara remembers asking them. “That’s ridiculous. Of course I don’t have it with me.” She’d hit another gap in the system: IU’s Office of Student Ethics can issue no-trespass and no-contact orders. But the office doesn’t routinely share the orders with IU’s own police department. Unless a student has filed for and been granted a separate SEE PART TWO, PAGE 5


INVESTIGATIONS 5

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

“I felt like I was playing lawyer,” Sara said. “And I didn’t want to play lawyer at all.”

Josie Levine says she was sexually assaulted her freshman year in Collins Living-Learning Center. Josie was disgusted by IU's inability to create a safe environment in her University hearing.

» PART TWO

CONTINUED FROM PAGE 4

protection order in criminal court, the police say they have no jurisdiction to arrest someone for violating the University’s order. “There are two completely different systems,” former IUPD Captain Andy Stephenson said. “There’s IU’s judiciary system and there’s the criminal justice system. We can make an arrest based on criminal justice system things, but if they violate University orders, then they’ll get further punishment through IU’s judicial process.” In Sara’s case, though, IU’s judicial process never mustered more than a tepid warning. IU’s rules allow for students to be expelled when they violate no-trespass orders, but the University almost never levies such a strong punishment. IU Title IX Coordinator Emily Springston said in the past few years only a couple students have been sanctioned for violating such orders. Springston also said IU’s Office of Student Conduct does communicate with IUPD, but acknowledged that coordination could be improved. Sara couldn’t believe IU let the student violate the University’s own order not once, but twice. Though she has since graduated, she still sleeps with the lights on. She never closes her eyes in the shower. And she can no longer bring herself to eat pistachios. Many of the women interviewed by the IDS said the no-contact and no-trespass orders issued in their cases offered no real protection. One remembers seeking counseling at the IU Health Center’s Sexual Assault Crisis Service for the emotional trauma of her rape. But as she left one appointment, she ran into the man who had raped her. Other women describe repeatedly how IU’s no-contact and no-trespass orders are meaningless when they venture off-campus. After Stephanie

Chinn reported her rape to IU, she felt unsafe in Bloomington. IU suspended the man who she said raped her. But he did not move away. During his two-year suspension, he lived in the same off-campus apartment building as Stephanie. His suspension didn’t stop him and his friends from verbally harassing Stephanie at bars. Last year, she was out with some friends when she saw the men at Kilroy’s Sports Bar. “You’re pathetic,” she remembers one of them saying. “You should kill yourselves.” The Maurer School of Law has a program that Provost Lauren Robel helped develop where law students assist others in obtaining legal protective orders effective both on- and off-campus. Some of the women interviewed by the IDS said this alternative was barely mentioned, or not mentioned at all, when they reported their assaults to the Office of Student Conduct. Penalizing students who want to help When investigating student reports of sexual assault, the University routinely issues threats to ensure the cooperation of potential witnesses. If students with knowledge of the incident in question don’t cooperate with investigators, the University cuts off their ability to register for classes, request transcripts and even graduate. The University says it never places these holds on students who have reported sexual assault — only on those who have been accused or could serve as potential witnesses. But students who have reported say the holds have placed an unwanted burden on them for coming forward. Others say the holds have struck fear in witnesses who would have readily cooperated with investigators regardless of the additional threat. When Josie Levine reported being raped in Collins as a freshman, the Office of Student Ethics talked to several

of Josie’s friends around the time class scheduling had begun. At least six witnesses in her case had holds placed on their accounts, she said. One friend had to waitlist classes that semester. “It just became such a hassle,” Josie said, “and made me feel guilty for something that I should not feel guilty about.” Restricted access to their own files Eleven of the women interviewed by the IDS decried IU’s lack of transparency in sharing evidence. Throughout its investigations, the Office of Student Conduct collects witness statements, physical evidence and text messages. One student said her file was nearly 90 pages long. But students aren’t allowed copies of these files. They are only allowed to take handwritten notes and review the file with one other support person of their choosing at the Office of Student Conduct. Students are given copies of their file during their hearings, but the University takes back those copies before the students leave the hearing. Josie Levine was so determined to have all the facts of her case that she broke the rules by taking cell phone pictures of her file. She then looked over the documents and witness statements, making a list of the lies she says the man who raped her told investigators. IU administrators say access to the files is restricted to preserve the investigations. Springston, the Title IX coordinator, says she worries about the spread of evidence collected in these files, and said federal law only guarantees students a right to inspect, but not keep, student files kept by the University. “There are limits because it’s more than just their student record involved,” Springston said. “Not only are they student records, but they’re also very sensitive information for both parties.” Hailey Rial, who reported sexual assault in her first semester at IU, sat through a four-hour-long hearing with no access to her file. Overwhelmed with IU’s investigation, Hailey dropped out

of classes. She chose not to return to Bloomington for her January 2016 hearing, instead Skyping in from home in South Bend, Indiana. But because she did not appear in the office, she wasn’t allowed access to her file. Her adviser, an IU student advocate, attended the hearing in her place and communicated with Hailey via email throughout the proceedings. When panelists referenced certain pages in the file, Hailey was unable to follow along. “It was really hard for me to dispute things witnesses said. All I had were my notes,” Hailey said. The file contained not just personal information about her, but also testimony from other people talking about her. “If it’s about me, it should be something I can have in my possession.” Speaking for the University, Springston said there is a way students can view their files — through a court-ordered subpoena. “It sounds big and scary,” she said. But subpoenas, she added, are relatively easy to obtain. Most students, however, have no idea what a subpoena is. Even if they did, they’d have to hire a lawyer to ask a court to issue one. Playing their own lawyer IU makes clear that its sexual misconduct hearings are not criminal trials. When a student walks into the Office of Student Conduct for their hearing, they are only allowed one person to sit alongside them as an adviser. These advisers cannot pose questions or speak on the student’s behalf. In her IU hearing five years ago, Sara was put in the position of defending her own case. The three IU panelists allowed her to directly address the other student she reported had sexually assaulted her.

March 3, 2015

April 6, 2015

May 12, 2015

June 30, 2015

IU implements a new sexual misconduct policy superseding the University’s former Policy Against Sexual Harassment, which was in effect since 1998.

Jeremiah Marshall sues IU, claiming IUPUI administrators unfairly sanctioned him in a fall 2014 report of sexual assault. Courts dismissed part of Marshall’s claim in March 2016. Marshall and the University reached a settlement in July 2017.

Jon Riveire, a former assistant director for student conduct, is arrested and later charged six counts of possession child pornography for images found on his computer in the Office of Student Ethics.

The Office of Civil Rights launches its second sexual violence investigation into IUBloomington, which is still pending.

SEE PART TWO, PAGE 6


6 INVESTIGATIONS

» PART TWO

CONTINUED FROM PAGE 5

“I felt like I was playing lawyer,” Sara said. “And I didn’t want to play lawyer at all.” The one question Sara felt sealed the case was one that she and her advocate thought of on the spot: “Did you ever ask my permission, or did I ever give you my permission, to kiss and bite my collarbone and my breast?” “I don’t have a lot of stage fright, and I can talk in public,” she said. “So I was able to ask him those questions. I highly doubt that everybody who goes through these hearings can sit there and ask those kinds of questions.” Later that year, IU changed its rules for how students pose questions in the hearing. Now questions must be submitted to the panel in writing. The panel’s chair will select, edit and read any questions he or she feels is appropriate. IU still allows students to directly question witnesses — something one student said made her feel uncomfortable when every witness in her hearing was a friend of the man she had accused of rape. Josie’s case was heard nearly a year after Sara’s and after IU changed its policy. Despite this, Josie was still disgusted by the panel’s inability to keep the man she accused of sexual assault from peering around the temporary room divider, directly taunting her and disputing her claims. “I absolutely think that they need to figure out a way to separate the room better,” Josie said. “That’s not the way that’s supposed to work,” Springston said when asked about the incident. She said the University attempts to minimize student interaction as much as possible. ‘Looking for justice’ Even when the accused student was found responsible, IU’s sanctions were too light, students said. Some students who had been suspended returned to IU in a matter of months. In Josie’s case, the student found responsible of sexual assault was suspended for a year. Only a freshman, Josie felt the punishment was not enough. What if her attacker returned? “There’s no way that I should have to see him,” Josie said. “I would have had to change schools if he came back because there was no way I could do it. I wouldn’t have been able to stay here after this.” Springston said the University doesn’t consider how long a student who reported a sexual assault may be on campus when deciding the length of suspensions. And students are rarely expelled. It would be inconsistent and unfair to those accused of sexual assault if the University made decisions on this basis, Springston said. A student in a report among freshmen might be suspended for four years, while in another case, a senior might only be removed from campus for a year. “This is a really difficult process for everybody involved,” Springston said. “We want students to utilize the process and know this is a place to come, but we can’t guarantee it’s not going to be a difficult process or go exactly the way they want it to go because we have obligations to everybody that has a role in it.” Now, Josie wishes she had pursued criminal charges. The Office of Student Ethics, she said, could have made her options for reporting outside of the University system more clear from the start. “I really have no memory of them telling me that I should go any further than just the school,” Josie said. “I really think that he should have been charged criminally.” Disgusted with how her case was handled, Hailey Rial — who reported rape at an off-campus fraternity party her freshman year — filed a formal complaint with the U.S. Department of Education’s Office of Civil Rights, the government office in charge of seeing that universities meet federal guidance for response to reports of sexual violence. She says in her hearing she was never looking for an educational experience. “I was looking for justice.”

Oct. 20, 2015 IU releases results of first ever sexual assault climate survey for the IU-Bloomington campus.

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

Did Indiana University formal procedures help you address the problem?

What students think of the system

Did Indiana University staff help you address the problem?

26.5%

20.4%

say they helped a little

say they helped a little

In 2015 IU released the findings of its first-ever sexual assault climate survey conducted at the Bloomington campus.

34.1%

Here is what students had to say about the way in which IU handles student safety.

24.5%

The data sets on the right are based on responses from 49 undergraduate women who said they had reported an incident.

10.2%

11.4% say they did not help at all

say they did not help at all

34.7% say they helped a lot

say they helped a lot

18.4% say they helped, but could have helped more

say they helped, but could have helped more

Indiana University does enough to ensure the safety of students.

I understand Indiana University’s formal procedures to address complaints of sexual violence.

I think administrators are genuinely concerned about my welfare.

of undergraduate women agree based on 3,273 responses

38.4%

of undergraduate women agree based on 3,273 responses

54.4%

of undergraduate women agree based on 3,273 responses

32.1% of undergraduate men agree based on 1,857 responses

48.2%

28.2%

of undergraduate men agree based on 1,857 responses

57.6% 57.9% of undergraduate men agree based on 1,857 responses

51.9%

24.7%

of graduate women agree based on 1,152 responses

of graduate women agree based on 1,152 responses

of graduate women agree based on 1,152 responses

41.2%

54.8%

28.8%

of graduate men agree based on 850 responses

of graduate men agree based on 850 responses

of graduate men agree based on 850 responses

IU plasters fliers, like this one in Ballantine Hall, in nearly every bathroom stall on campus, reminding students of what it means to ask for and give consent. Lawyers for those accused of sexual assault in the University's system say IU's definitions of consent are too simplistic.

How cases turn out In cases of sexual assault, IU rarely levies the maximum punishment.

11 no responsibility 237

32

reports of alleged sexual misconduct reported to the IU-Bloomington campus

cases that moved forward under the University student disciplinary process

1

probations

14 suspensions

6 expulsions SOURCE OFFICE OF STUDENT WELFARE AND TITLE IX

Dec. 9, 2015

Feb. 3, 2016

Jill Creighton reports sexual assault to the Fort Worth Police Department, alleging Jason Casares, then-director of the Office of Student Ethics, took advantage of her after having too much to drink at an advisers conference just days earlier in Fort Worth, Texas. The following spring, Fort Worth police decided against pressing charges.

Jill Creighton posts a letter on Twitter, openly alleging Jason Casares took advantage of her at a December 2015 advisers conference. The next day Casares is put on paid administrative leave at IU and the University announces review of student misconduct hearings Casares chaired in the fall 2015 semester.

March 8, 2016 Feb. 26, 2016 IU announces the resignation of Jason Casares.

Hailey Rial publicly announces that she has filed a federal complaint with the federal Office of Civil Rights in coordination with a national survivor advocacy group called End Rape on Campus.


Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

INVESTIGATIONS 7

A harsh reality When a student is accused of sexual assault, IU promises an impartial review of allegations built on integrity and respect. But students who have been investigated — including those later cleared of all accusation — say this system is anything but fair.

All cases of sexual misconduct are investigated by University employees in the Office of Student Conduct in the Alice McDonald Nelson Building on the corner of North Jordan Avenue and East Law Lane. Students accused of assault meet with investigators in this office, as well as appear for hearings in the office’s conference room. These hearings can often be hours long.

I

U’s sexual assault investigations are rigged against the accused — at least, that’s the overwhelming opinion of students accused of rape and of their lawyers. The University denies the men accused access to evidence against them until shortly before their cases are heard. Once these cases move forward, IU’s system denies these students the ability to have a lawyer speak for them or question witnesses. It denies them the right to file counterclaims against their accusers. If the male students choose to not cooperate with the investigation — a basic right in American courts — IU punishes them by cutting off their ability to register for classes or even graduate. If they still won’t answer questions, the men know their refusal increases the likelihood that the University will conclude that they’re rapists. IU appoints faculty and staff to preside over hearings, even though these people usually have no legal expertise and only a few days of training. Under IU rules, these hearing officers decide cases using a standard of proof that makes it much easier to rule against the men. When the hearing officers determine that students have committed rape, IU has never overturned that ruling on appeal. Sometimes the University rushes to wrap up cases before all evidence has been weighed. In one case, a student had already been expelled, his lawyer says, when a DNA test cleared him months later. Knowing IU’s track record, the attorney didn’t even bother sending the University the results of the test. “Imagine trying to tell a young man, ‘It doesn’t matter that it wasn’t your DNA’,’’ said the student’s lawyer, Katharine Liell. “‘It doesn’t matter that we proved she was mistaken about who she was with that night. You’re just going to have to accept it because there’s nothing you can do unless you’re willing to go to court and sue them.’” Liell and several other Bloomington attorneys who have represented dozens of accused students describe the University’s system as a travesty. In its attempts to be sensitive to those who have reported rape, the lawyers say, IU has lost sight of fairness to those accused. “I’ve been so shocked by the out-

comes of hearings where it was so clear to me that my client did absolutely nothing wrong,” attorney Amelia Lahn said. Over the past year, the Indiana Daily Student has tried to talk with students about their experiences inside IU’s sexual assault hearings. Because the University’s files on these cases are closely guarded, the newspaper reached out directly to students, handing out flyers across campus and posting notices on social media. A dozen women were willing to be interviewed. But male students, wary of the stigma that follows rape accusations, were more reluctant. Only one agreed to share his experiences with the newspaper. He did not want to be identified by his full name, even though the University dismissed the charges against him. “I’m a political science major, and I want to go into government,” said Bill, now a 20-year-old student attending school in California. “I don’t need my name anywhere near anything that says sexual assault.” According to Bill, his case began one night last year when another freshman invited him to her room at Foster Quad to have sex. He had already been drinking when she texted him, and his friends encouraged him to go. “Are we going to do this or what?” he said he remembered her asking when he arrived at the dorm. Bill told her no, but the two of them shared a bottle of vodka she hid in her closet. At some point, he said he blacked out and then woke up the next morning with Plan B emergency contraception pills in his pocket, unsure of how they got there. A few weeks later, Bill got a call from an investigator with IU’s Office of Student Ethics. The freshman from Foster had accused him of raping her when she was too drunk to consent. The University placed a hold on his student account. Bill said the investigator told him that if he didn’t cooperate, the University might rule him responsible for sexual assault. Bill did cooperate, but he said he spent thousands of dollars to hire an attorney. He flew back from California to attend his hearing. The other student never showed. But the hearing occurred anyway. In the end, the panel ruled in Bill’s favor. Even so, he

“I have clients in some cases I tell them go there by themselves. They’ll be fine. Never on a sexual assault.” Joe Lozano, Bloomington attorney

still can’t believe IU was so cavalier with his future. “If someone has been sexually assaulted, and you can prove it, it should go to the police,” Bill said. “This is, to me, unbelievable that they’re able to have these kind of kangaroo courts where they make up their own rules and then hand down long-term, life-altering sentences.” Bloomington attorney Joe Lozano has worked on IU cases ranging from underage drinking to sexual assault. “When you take all of their disciplinary process as a whole, the overwhelming majority of it is fair,” Lozano said. “I have clients in some cases I tell them go there by themselves. They’ll be fine. Never on a sexual assault.” IU officials say they are constantly refining their rules, but they point out that the hearings conducted by the Office of Student Ethics, recently renamed the Office of Student Conduct, are not the same as criminal trials. “We try to be as fair as we possibly can with the knowledge that this is not a criminal court,” Provost Lauren Robel said. “This is an educational institution.” The unraveling of justice Indiana is hardly the only school under fire. In recent years, universities across the country have been accused of being so eager to appear strong against sexual violence that they have abandoned the rights of

those accused. Just two weeks ago, the debate intensified when U.S. Education Secretary Betsy DeVos attacked the way schools investigate sexual assault. “A failed system,” DeVos repeatedly called it in a speech at George Mason University. “This unraveling of justice is shameful.” The U.S. Department of Education will open a notice and comment period, DeVos announced, the first steps in seeking to replace Obamaera guidance for sexual misconduct cases on campus. Critics dismissed her speech as a cynical attempt to undermine victims and protect rapists. Attorneys say this is an overreaction and that DeVos spoke in detail about how systems such as IU’s have hurt both survivors of sexual assault and young men unfairly accused. Shortly after DeVos’ speech, IU released a statement saying the University plans to monitor changes in federal guidance but will continue with its investigations. “At the end of the day, Title IX still says no one should be denied or excluded from participating in their education on the basis of sex, so that governs our work,” Springston said in an August interview. Last year, more than 20 university law professors from around the country signed an open letter calling on the Department of Education to rethink its guidance for universities on how to address sexual misconduct. The professors argued that the government places such relentless pressure on universities to tackle sexual assault that some investigators have abandoned neutrality. These investigations, the professors said, stigmatizes accused students and severs their access to an education. More than 150 lawsuits have been filed against schools in the last five years, according to Title IX For All, an advocacy group promoting gender equity in higher education. IU is under similar scrutiny at both its Bloomington and Indianapolis campuses. Jeremiah Marshall, expelled from IU-Purdue University Indianapolis as a sophomore, sued the University two years ago, claiming that his due SEE PART THREE, PAGE 8


8 INVESTIGATIONS

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

Faces behind the system When a student reports sexual assault, their case is handled by IU’s Office of Student Conduct. Here are some of the administrators most involved in student reports and meeting federal guidance. Emily Springston Title Chief Student Welfare and Title IX Officer Office Office of Student Welfare and Title IX What she does Oversees all campuses’ sexual misconduct response and federal Title IX compliance

Lori Reesor

Libby Spotts

Title Vice Provost for Student Affairs and Dean of Students Office Division of Student Affairs What she does Oversees student life matters including student support services, misconduct proceedings and decisions on appeals

Title Director of Student Conduct Office Office of Student Conduct What she does Oversees IU-Bloomington’s academic, personal and sexual misconduct procedures

» PART THREE

CONTINUED FROM PAGE 7 process rights had been violated. According to court documents, IUPUI campus police woke Marshall at 4 a.m. and questioned him about a reported rape. That same day, Marshall was placed on interim suspension and evicted from University housing, despite having no hearing or evidence presented against him. In another lawsuit filed last year, an unnamed freshman from the Bloomington campus echoed Marshall’s complaints. The freshman said another student accused him of rape because she was embarrassed about initiating sex with him at his dorm. His lawsuit alleged IU’s investigator only interviewed friends of his accuser and ignored evidence favorable to him. Both this case and Marshall’s case were settled in July. A third lawsuit — this one still unfolding in court — promises to be compelling if it goes to trial. Aaron Farrer, a sophomore IU-Bloomington student who happened to serve as a police cadet, was accused in 2015 of sexually assaulting another student. The woman insisted he took advantage of her when she was drunk. Farrer told police she had seduced him in a T-shirt and red thong, repeatedly asking “Do you want to fuck me?” Monroe County prosecutors dismissed his case. IU’s system ruled that Farrer had in fact committed rape and expelled him. Farrer’s lawsuit argues that the University has created a hostile environment for male students, disciplining them unfairly for accepting sexual advances. Farrer is seeking $75,000 and reinstatement as an IU student. He also longs to be a police cadet again. The damage to himself and his family, he says, has been irrevocable. “When the accusation was made, I lost everything,” he wrote in a statement. Many sexual misconduct cases filed with the Office of Student Conduct turn on the complexities of defining consent. In Indiana courts,

consent is defined one way. At IU, it’s defined differently, at least when one or both of the students involved have been drinking. That is why Aaron Farrer’s case is so complicated. Was the young woman in that case capable of giving consent? The criminal justice system had one answer. IU had another. The University teaches students about consent from the day they arrive on campus. At orientation, freshmen are shown a musical featuring a peppy song about consent. Fliers hang in bathroom stalls in campus buildings and offcampus bars. “It’s the responsibility of the initiator to get consent for engaging in sexual activity,” the fliers say. “Sex without consent is assault.” As well-intended as these efforts may be, lawyers say IU’s definition paints an unrealistic picture. Liell says IU policy discriminates against men in an environment where they are more likely to make the first move. “What is your definition of initiating?” Liell asks. “Is it holding someone’s hand? Is it the kiss?” When both parties were drunk, reporting sexual assault can turn into a race to the Office of Student Conduct. Lawyers say they have seen administrators believe the student who reports first. “A lot of my clients will say ‘I was drunk, too,’ but that doesn’t matter once the process has started and you’ve been accused,” said Amelia Lahn, a local lawyer who frequently represents men accused of sexual assault. By contrast, the criminal justice system accounts for these and other ambiguities, Lahn and other lawyers said. In the legal system, being drunk isn’t usually enough to prove a student didn’t consent to sex. A student can be blacked out but not unconscious, Lahn pointed out. What if that person is walking and communicating clearly in his or her drunken state? How can the partner know that student isn’t really con-

April 4, 2016

April 14, 2016

IU announces the results of a review of 17 cases chaired by Jason Casares during the fall 2015 semester. IU Maurer School of Law professor emerita Julia Lamber found these investigations to be without bias or undue influence.

A spokesperson from the Fort Worth Police Department confirms the department will bring no sexual assault charges against Jason Casares.

“Why would we have such a low standard of proof when so much is on the line for these young men?” Katharine Liell, attorney for the accused

senting to sex? “They think that’s sexual assault,” Lahn said of students who’ve said they were raped when blacked out. “That’s not by the legal standard.” Lawyers complain the hearing officers at IU who decide these cases have nowhere near enough training to truly understand these complexities. Hearing panelists are selected from a list of more than three dozen IU employees who have completed IU’s sexual misconduct training. The University opens this training to faculty and staff across departments, with no required legal experience needed to become an eligible panelist. No continuing education, such as law school, is required. At least one panelist must be a student affairs administrator, but few panelists have legal training. IU’s Title IX Coordinator Emily Springston described the University’s training as intensive. IU trains investigators and hearing panelists in an annual day-and-a-half-long seminar composed of in-person and online elements, she said. The University also sends staff to conferences and brings trainers to IU. Lahn worked in IU’s Office of Student Ethics from 2012 to 2014 before opening her own law practice. Although she never sat on a sexual misconduct panel as an IU employee, she did receive the Uni-

versity’s sexual misconduct training. She said her experiences in law school and in IU’s training could not have been more different. “The most obvious difference,” Lahn said, “is that you have trained jurists based on 200 years-plus of jurisprudence history making the decision in what I call ‘real court.’” In another striking departure from criminal procedure, almost all universities, including IU, operate on a less rigorous standard of proof. In criminal court, people charged with crimes are presumed innocent until proven guilty beyond a reasonable doubt. In IU’s misconduct hearings, the University needs only to find a preponderance of evidence against the accused — enough evidence to show that it’s more likely than not that the student committed sexual violence. Proponents of this standard argue that women are more likely to find justice in a system that requires less definitive proof to expel whoever hurt them. Defense attorneys argue that this is dangerous. “Why would we have such a low standard of proof,” Liell asks, “when so much is on the line for these young men?” With DeVos’ recent announcement, it’s been speculated that the Department of Education could change federal guidance recommending schools use this controversial standard, and when it comes to preponderance, IU’s own policymakers are conflicted. At the time IU’s current sexual misconduct policy went into effect, a February 2015 University Faculty Council resolution stated, “We express our serious concern about the propriety and constitutionality of the ‘preponderance of evidence’ standard mandated by the Office of Civil Rights.” The faculty council called IU administrators to monitor changes on the federal level and suggested further review of IU’s policy after its implementation. “I imagine if guidance changes, SEE PART THREE, PAGE 9

Aug. 23, 2016 May 17, 2016 The Office of Civil Rights launches its third sexual violence investigation into IU-Bloomington, which remains open.

A man suspended from IU in January 2016 anonymously sues IU, claiming the University created a hostile genderbiased environment for male students. The case was dismissed in February 2017.

Aug. 25, 2016 IU updates its Sexual Misconduct Policy.


INVESTIGATIONS 9

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

Attorney Mary Higdon works in her Bloomington office. She has represented multiple students accused of sexual assault in IU’s student misconduct system. She says IU has never granted an appeal to any of the students she has represented.

» PART 3

CONTINUED FROM PAGE 8 that’s going to be something that they’ll ask as part of a review,” Springston said, referring to the preponderance of evidence standard. “Where that lands, I don’t know, because I think you have similar disagreement within the University as you do in the public about what that standard might be.” Impediment and obstruction The men’s attorneys express the same frustration with IU’s lack of transparency – students are given little or no context for the accusations brought against them until they can review the statements of their accusers and other witnesses, all of which are kept in university files. IU makes this difficult. In criminal court, files are available for inspection from the moment a case begins. The University allows the accused and their accusers to review the evidence during a 10-day period leading up to the final hearing. Students accused of rape can go weeks or even months without fully understanding the nature of the allegations against them. These rules make no sense, Liell argues. “Why you would have a policy of impediment and obstruction rather than a policy of ease and access to your very own record?” Liell asked, adding, “I don’t know.” The University won’t let anyone — even the accused — make copies of these files. Students can authorize someone else to review the file, but laptops are forbidden. Lawyers representing the men say they can spend hours taking handwritten notes — hours they then charge to their clients. Lawyers say limiting students’ access to these files disrupts the ability to submit new witnesses and request additional information, such as surveillance videos from residence halls. Liell said the 10-day review period has led to the destruction of vital evidence. She said she has been told surveillance videos are copied-over after 30 days, while IU’s investigations can last two months or longer. “The best evidence there is are these surveillance videos,” Liell said. “By preventing us from seeing the accusations until the report is filed, evidence is lost and destroyed.” Springston confirmed that IU routinely copies over its surveillance videos. A few times, she said,

investigators have requested the video too late. But that doesn’t mean valuable evidence has been lost. “There’s not necessarily any evidence there in the first place,” she said. As for the 10-day rule on allowing students to review their files, Springston said that’s “ample time.” Men also take issue with IU’s silencing of their advisers or attorneys. Libby Spotts, IU’s director of student conduct, said allowing attorneys or other advisers to speak on behalf of students during University hearings would disrupt the equity of the case. “If one party decides to potentially hire an attorney — maybe a defense attorney who has experience in presenting information in a very specific way — but if one party doesn’t, and that’s not comfortable for them, or that’s not the resource that they have, that might skew, and that imbalance that we’re talking about could then become present,” Spotts said. However, in IU’s system, where both students are entitled to a free University student advocate or confidential victim advocate, lawyers say their clients rarely have experience in the type of representation needed to convince the panel of their innocence. “How is an 18-year old man supposed to know how to cross-examine witnesses?” Liell said. “There’s a reason why we go to law school. These are skills that take years and years of training.” Judge, jury and executioner Students found responsible under IU’s system have little hope of appeal. Springston said no findings of responsibility have been overturned through the University’s appeals process, overseen by the dean of students. Lahn said she almost always appeals but has never won. “It makes me wonder how closely they look at it, or if it really is a real appeal, or if it’s just like, ‘Eh, he was already found responsible. There was a finding. He did it. The end.’” Attorney Mary Higdon echoed Lahn’s sentiment. “We’ve lost every single one,” Higdon said. “It doesn’t seem to be taken seriously at all. It honestly seems like as soon as the accusation is made, the nail is pigeonholed and not given a fair shake.”

“We’ve lost every single one. It doesn’t seem to be taken seriously at all. It honestly seems like as soon as the accusation is made, the nail is pigeon-holed and not given a fair shake.” Mary Higdon, attorney for the accused

Attorneys say IU rushes cases, concluding before all evidence is available. Appeals are allowed only within five days of the University hearing and can only be filed on grounds that there has been an error in IU’s procedure or that the punishment doesn’t fit the violation. Most appeals don’t meet the standard, Springston said. “It would not be helpful if you saw a lot of cases overturned,” Springston said. “That would indicate that the system didn’t work.” The University can review new evidence after the appeals window closes, Springston said. But lawyers say this doesn’t account for the time their clients spend suspended or expelled while awaiting the results of DNA testing that could potentially clear their name. In one case, Liell said a man she represented had already been expelled even though IU knew a rape kit was being tested — a process that can take months longer than the University’s investigations. When the results of this evidence came back proving her client innocent, Liell said, she didn’t even bother to contact IU, wary that whoever heard the appeal at the University would not have the training to correctly interpret the results. “It’s not a simple analysis,” Liell

said in a text message. “If it were a jury trial we could have experts explain and educate the jury which usually takes days. How do you present that evidence in a letter? You can’t.” In such cases, attorneys take issue with IU’s involvement as appeals officers. IU employees control the investigation, hearing, sanctions and appeals. “Remember the old saying, ‘judge, jury and executioner’?” Liell said. “That’s Indiana University.” Dragged through the mud In his case, Bill says the Office of Student Conduct showed preferential treatment toward the woman who reported him. When he asked if he could file his own report of sexual assault — after all, Bill says the girl made advances toward him before he blacked out — the University told him it doesn’t accept counterclaims. Counterclaims are a newer phenomenon in sexual misconduct reporting, Springston said, and when an investigation is opened at IU, investigators look at both sides. In rare cases, it’s possible for a reporting student to be the one charged with sexual misconduct. Six months after Bill received his first call from the Office of Student Conduct, he was given a hearing date. He was taking classes in California at the time and flew back to Indiana to attend in person. While IU requires any student accused of sexual assault to appear in person or via Skype at the hearing, reporting students can choose not to participate. The woman who reported Bill didn’t show. With the woman absent from the hearing, Bill answered the panelists’ questions, some of which he said were leading. Most lawyers would have advised him to stay quiet. Bill was found not responsible of sexual assault, but that hasn’t dampened his outrage. He knows there will always be a file in the Office of Student Conduct alleging he committed rape. “I got dragged through the mud,” he said. “I had this hanging over me that no matter how guilty or not guilty I might be, I, on a piece of paper somewhere, would be branded a sexual predator. No matter what I do in my life, there’s always going to be that piece of paper that says that I did that, even when I completely didn’t.”

Sept. 1, 2016

Oct. 31, 2016

Dec. 19, 2016

Jan. 1, 2017

Feb. 7, 2017

The Office of Civil Rights opens its fourth sexual violence investigation into IU-Bloomington, which is still pending.

The Office of Civil Rights opens a fifth sexual violence investigation into IU-Bloomington, which is also still an open investigation.

Former IU student Aaron Farrer sues IU, saying he was wrongfully expelled during a University investigation of sexual assault reported in fall 2015. This case is still pending.

IU further revises its sexual misconduct policy to clarify language and redefine key terms such as sexual assault.

U.S. Education Secretary Betsy DeVos is confirmed in the U.S. Senate after saying in her January confirmation hearing it would be premature to commit to upholding Obama-era Title IX guidance.


10 INVESTIGATIONS

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

The Dear Colleague Letter, a 19-page piece of federal guidance released in 2011, makes recommendations for how schools should handle aspects of sexual assault reporting. But, this guidance is broad and leaves ample room for schools like IU to direct their own policies.

A way forward IU officials say they are constantly seeking to improve how the University responds to sexual assault. The IDS reviewed policies at more than two dozen other universities — all subject to the same federal guidance — and found tangible solutions for change in the system.

S

exual violence haunts college campuses across the country. At IU, the damage is inescapable. In the past couple of weeks, at least three campus rapes have been reported in places where IU students should feel safe. One was reported in Wright Quad, another in Read Center. At Briscoe Quad, a freshman told police she was raped by someone she had met at a party. Another young woman reported a fourth incident, this one off campus, saying a stranger had grabbed her from behind and climbed on top of her on North Walnut Street. IU is fighting back. The flyers, the banners, the attempts to educate students on consent — all of it matters. But a yearlong investigation by the Indiana Daily Student makes it clear that the University’s attempt to investigate sexual assaults is deeply flawed. The good news is that IU has the power to fix some of the problems right now. Here is a list of the critiques cited most frequently and some possible solutions, including approaches already adopted at other Big Ten universities. Most of these proposals would cost almost no extra money and would not conflict with federal guidelines. IU officials say they are constantly seeking to improve the system. They say they are particularly interested in hearing from students on how to do this. This is a chance to prove it.

Problem Not enough straight talk from the University. When asked about shortcomings in the system, administrators tend to retreat behind bureaucratic explanations of what policy allows. Some at IU argue that the University’s system of investigating sexual assault is “educational,” not “punitive,” and that it teaches problem-solving and decisionmaking. Students who have suffered sexual assault — and students who have been accused of sexual assault — find this a condescending dodge that glosses over the real consequences of these cases.

Problem IU punishes students who do not cooperate with the system. Investigators in the Office of Student Conduct place holds on the student accounts of potential witnesses and those accused in sexual assault cases. These holds prevent students — even those eager to help in the process — from registering for classes, requesting transcripts and even graduating. The University does not place these holds on the accounts of those who report sexual assault. Even so, the holds are another burden for these women, leaving them feeling guilty for dragging others into such complications.

Solution Lead the conversation. Create forums for the campus community to share frustrations and suggestions. Find new ways to gather input from those who may not be comfortable speaking in public. Recognize that this is more than a learning experience for students. It is deeply personal. Stop hiding behind policy, and ask if it is time for those policies to change.

Solution Stop using the holds. Other universities such as Ball State University, do not use this method of compulsion because they worry that holds will alienate students who might otherwise comply with investigators’ requests. IU should drop the practice, too, especially if its officials are sincere when they insist that their system is not intended to be punitive.

Problem Not enough protection for students who report rape. No-contact and no-trespass orders issued by the University are loosely enforced at best, leaving those who have been assaulted vulnerable to harassment and retaliation. IU does not routinely share these orders with its own police department, leaving officers in the dark when students report that their attackers have shown up at their dorm. When students complain, the Office of Student Conduct often goes no further than issuing another warning that simply repeats what is already in the no-contact order. To make matters worse, these orders are only enforceable on campus and not elsewhere in the city.

Problem The University keeps evidence secret. Students are usually not allowed to review their own case files until shortly before their hearings. Women who have reported sexual assault are left with no idea of what the accused and others are claiming. Men facing expulsion have no idea how to prepare for their hearings. Either side can ask a lawyer to review their cases, but by the time the files are opened, it can be too late for a lawyer to truly help. IU officials insist that the restrictions they impose allow investigators to work more efficiently.

Solution Share information. When women run into their alleged attackers on campus, it can be hard to prove the contact was intentional. But several women told the IDS they had suffered clear violations, and the University did next to nothing. A few simple changes in the system would help. Create a database that shares all no-contact and no-trespass orders with the IU Police Department. Update the intake protocol at the Office of Student Conduct so that every time a student reports a sexual assault, someone from the Maurer School of Law’s Protective Order Project is on hand to help the student obtain a legal protective order.

Solution Open the files to those with the most at stake. When fairness is so essential to both sides, both the accused and their accusers need to know the facts from day one. These students’ desire to keep up on their cases should not be considered an inconvenience. The credibility of any system — at a university or elsewhere — is built on transparency. SEE PART FOUR, PAGE 11


INVESTIGATIONS 11

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

» PART FOUR

CONTINUED FROM PAGE 10

Problem The University will not let students copy their own files. IU does not provide copies of investigative files to the involved parties unless compelled by a legal order, and it does not allow students or their lawyers to make copies of their own. They are allowed to take handwritten notes, but that is it — a challenge when some files run nearly 100 pages long. IU points out that the files often contain information on several students, and that those students’ privacy is protected by the Family Educational Rights and Privacy Act. Given that these are sexual assault cases, the officials worry that releasing files could allow medical records and other sensitive information to be posted online or shared among students who are not involved. They note that FERPA only requires universities to allow students to inspect their files, not copy them. Solution Do more than the minimum. The University does a disservice to students by insisting that it only has to meet the law’s minimum requirements. Is that really the position IU wants to take in such important cases? Other schools have no problem going above and beyond the minimum requirements established by FERPA. The University of Minnesota provides redacted copies of these files. The University of Maryland releases the entire file to either the student accused of assault or their accusers, given they sign a waiver. There is no reason IU cannot adopt a similar approach.

Problem Appeals are rarely granted, even when new evidence surfaces. The University only considers appeals claiming that IU did not follow its own policy — a policy some students and attorneys say is flawed to begin with — or that the University’s punishments are too harsh. Students are only allowed to appeal once within five days of receiving IU’s decision. In a system designed to provide expedient answers, the results of rape kits and DNA testing are rarely completed in time. While University officials say they will consider new evidence after the appeals window closes, one attorney was discouraged from sending forensic results, citing IU’s lack of training for those who consider appeals.

What happens when a student reports If a person chooses to report an incident of sexual misconduct, there are several options. More than one may be chosen, simultaneously or over time. It is possible to seek help within and outside the IU system. A confidential IU employee, such as a student advocate.

Solution Get someone who is qualified. Consider inviting members of the legal community who are specially trained in the complexities of sexual assault cases to serve on hearing panels. George Mason University has done this using a three-member panel of retired judges. Simpler still: Recruit experienced professors from the Maurer School of Law or from IU’s Department of Criminal Justice to help decide cases.

Off-campus resource, such as Bloomington Police Department or Middle Way House.

A responsible IU employee, such as an instructor or residence hall staff member, who must report to IU Title IX officials.

Problem IU controls every step of the process. The Office of Student Conduct investigates reports of sexual assault. University employees decide the cases and hand out punishments for students they believe have committed rape. And the dean of students reviews appeals. Attorneys argue it is unfair for every stage of these cases to be decided by employees whose paychecks are signed by IU.

Title IX officials coordinate to gather preliminary information, offer no-contact orders, and present available resources, such as mental health counseling. Student requests no investigation.

Solution Allow independent review. If the University’s system is as strong as it claims to be, its investigations and hearings should stand the test of external review. When a student appeals IU’s decision, let someone from outside of the University consider the appeal. The University of Michigan does this, allowing an attorney from outside its system to consider whether cases were heard appropriately.

Official investigation into sexual misconduct opens.

If the University determines a safe environment for the IU community can be maintained without investigation, the process ends here.

If not, the investigation opens.

An investigator notifies the reporting student and accused of the opening investigation and sets appointments.

Problem IU routinely destroys potentially crucial evidence. Attorneys who represent students accused of rape complain that the University discards video surveillance from the dorms and other campus buildings. IU only holds onto the videos for a month, but many cases stretch much longer. Until the students and their lawyers are allowed to review the files, they do not necessarily know what evidence will matter. Are the women looking for video that confirms that the man they have named did enter their dorm on the night in question? Are the men seeking video that shows they did not enter that dorm that night? Are lawyers looking for video that proves their client was elsewhere on campus when the assault occurred? By the time the different stakeholders are given access to the files and better understand the case, it can be too late.

Examination of relevant documents and interviews with both sides and other witnesses.

If all parties consent to an alternative resolution, the investigation can end at any time.

Solution Consider new evidence. Amend the sexual misconduct policy to accept appeals on a basis that new, factual information has become available after the University hearing. This protects both students who have reported and been accused of sexual assault. What if the DNA does not match a student suspended or expelled for sexual assault? What if such evidence proves a student did commit rape after IU’s system cleared the student and allowed him or her to return to classes? Further train appeals officers on forensic evidence standards so that the results of DNA tests can be accurately interpreted.

The hearing process begins, and the chair of the hearing panel reviews the charges recommended by the investigator.

Respondent accepts responsibility and the process ends here.

Solution Establish a protocol for preserving evidence. Emily Springston, IU’s Title IX coordinator, points out that not every video contains valuable evidence. Yet there is no way to know unless both sides have a chance to check. One of the first steps IU takes when opening a sexual assault investigation should be immediately requesting and setting aside any video potentially relevant to the case — including video from another location that might confirm the alibi of the accused.

Both sides provide statements, and the panel asks questions.

The panel deliberates with neither side present to determine if sanctions should be placed, and if so, what those sanctions should be.

Problem The University puts students in the uncomfortable position of defending their own cases. These students — many who have never had to represent themselves in a formal hearing of any kind — complain that IU makes them play lawyer. The students say they have been made to ask and answer questions in IU’s hearings, and that University policy forces the actual lawyers in these situations into silence.

Problem IU operates in a culture of secrecy. It has seldom discussed the causes of five investigations opened by the federal Office of Civil Rights and the results of internal investigations into former employees, including that of former Office of Student Ethics director Jason Casares. After a ballet student reported being sexually assaulted by an IU Jacobs School of Music lecturer, the University waited six weeks to involve campus police in its investigation. Like in the case of Casares, the University conducted an internal investigation and refused to share its findings.

The accused is found responsible or not responsible. Either side may request an appeal of the decision within five days of being notified of the outcome of their case.

The request is granted or denied. If granted, the appellate officer reviews findings and sanctions, if applicable.

Solution Explore other options. Some universities, including the University of Minnesota, the University of Iowa and the University of Wisconsin, allow attorneys to participate in hearings and represent their clients — the students. At Iowa, the university will connect students with resources if they can’t afford their own lawyer. Consider speaking with officials at these and other universities of similar sizes and student populations to see how different models work.

Problem Those entrusted to decide these cases are underqualified. The three-member panels that hear sexual misconduct cases are made of IU employees. Few have legal experience, but the University believes its annual day-and-a-half-long training is qualification enough to hear evidence and place sanctions. With tricky evidence standards and the complications of defining what it means to give and receive consent, students and attorneys argue this training is not enough.

Solution Light and Truth. Answer tough questions about why these federal investigations have been open for years and explain how IU plans to correct its mistakes. Speak openly about investigations of former employees, and be transparent about why they are no longer here. Invite those who have the most at stake — students, attorneys and other community leaders — to take an active role in fixing the system, and live up to IU’s motto of Lux et Veritas.

The original decision can be affirmed or set aside, or the appellate officer can request a new hearing.

Feb. 27, 2017

July 13, 2017

August 2017

Sept. 7, 2017

Jon Riveire is sentenced to a year of home detention followed by supervised probation after pleading guilty in fall 2016 for one charge of child pornography.

Betsy DeVos convenes a series of listening sessions to hear from both students who have reported and have been accused of sexual assault.

With the start of the new school year, IU renames its Office of Student Ethics. It is now called the Office of Student Conduct and serves all the same roles as the previously named office.

Betsy DeVos announces an public notice and comment period to review Obama-era guidelines for how universities investigate cases of sexual assault.


12 INVESTIGATIONS

Thursday, Sept. 21, 2017 | Indiana Daily Student | idsnews.com

A pamphlet about sexual assault and violence lies on the table of the hearing room in the Office of Student Conduct. Pamphlets and fliers explaining sexual misconduct can be found across the IU campus.

Resources for reporting

I

f you believe you have experienced sexual assault, you have options. Any IU employee can help you find the appropriate administrator or faculty member to begin the University reporting process. Keep in mind that most IU employees are considered “responsible employees,” meaning they are required to pass along anything shared with them regarding sexual assault to IU’s Title IX coordinator or a deputy Title IX coordinator who may decide to open a University investigation. If you would like to talk to someone before deciding whether to report assault, IU has several “confidential employees” with whom you can speak. These employees include those designated as confidential victim advocates within IU’s new Office of Sexual Violence and Prevention Advocacy, mental health counselors at Counseling and Psychological Services and employees at the IU Health Center. Non-University affiliated organizations like the Monroe County Protective Order Assistance Partnership and Middle Way House can also provide resources independent from a university investigation. If you do not wish to start a police investigation, you should know that reports to the University are rarely referred to campus police. If you would like to pursue an investigation in the criminal justice system, you can file a police report with campus or local police. This starts an investigation independent of IU’s Office of Student Conduct, but you should take note that Indiana University Police often refer their cases to the IU Office of Student Conduct for a simultaneous University investigation.

Bloomington Police Department 220 E. Third St. 812-339-4477 or 911 for an emergency police@bloomington.in.gov bloomington.in.gov/departments/ police Confidential Victim Advocates* 506 N. Fess Ave. 812-856-2469 readvo@indiana.edu studentaffairs.indiana.edu/ violence-prevention/services/index. shtml#CVA Counseling and Psychological Services* 600 N. Jordan Ave., Fourth Floor 812-855-5711 healthcenter.indiana.edu/ counseling IU Health Bloomington Hospital* 601 W. Second St. 812-353-9515 http://iuhealth.org/bloomington/ emergency-medicine IU Health Center* 600 N. Jordan Ave. 812-855-4011 healthcenter.indiana.edu/answers/ sexualassault.shtml IU Police Department 1469 E. 17th St. 812-855-4111 or 911 for an emergency iupd@indiana.edu indiana.edu/~iupd

Middle Way House* 812-333-7404 812-336-0846, 24-hour crisis line communications@middlewayhouse. org middlewayhouse.org

Sexual Assault Crisis Services* 600 N. Jordan Ave., fourth floor 812-855-8900 (24-hour line) healthcenter.indiana.edu/ counseling/Sexual-Assault-CrisisService.shtml

Monroe County Sheriff’s Office 301 N. College Ave. 812-349-2534 sheriffsoffice@co.monroe.in.us monroecountysheriffsoffice.us

Student Advocates Office* Eigenmann Hall, 1900 E. 10th St., West Room 225 812-855-0761 advocate@indiana.edu studentaffairs.indiana.edu/studentadvocates

Office of Student Conduct 801 N. Jordan Ave. 812-855-5419 ethics@indiana.edu studentaffairs.indiana.edu/studentconduct Office of Student Welfare and Title IX 400 E. Seventh St., Poplars Building 833 812-855-4889 titleix@iu.edu studentwelfare.iu.edu Protective Order Assistance Partnership* 301 N. College Ave. Room 201 812-349-2614 monroeprosecutor.us/preventioneducation/domestic-violence/ protective-order-assistancepartnership

Student Legal Services* 703 E. Seventh St. 812-855-7867 stulegal@indiana.edu getlegal.indiana.edu * Indicates that an office or organization may offer confidential resources to students not wanting to file a criminal or University report. If you are looking to reach out to confidential resources, always be sure to ask someone first if they can provide confidentiality. For more on confidential employees at IU, see IU’s sexual misconduct policy.

Protective Order Project* Maurer School of Law, 211 S. Indiana Ave., Room 010 812-855-4800 pop@indiana.edu law.indiana.edu/pop

Resources for those accused of assault

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f you have been accused of sexual misconduct at IU, there are several resources that can help you weigh your legal options, guide you through IU student misconduct procedures and navigate academic and residential life throughout this time. You can keep up with developments in any open investigation by contacting the appropriate department, depending on whether a report was made to law enforcement or school officials. IU’s Student Legal Services is a service free to all students that can provide advice for criminal and University cases, as well as make recommendations for local attorneys and legal experts. IU Student Advocates can explain and appear with you throughout IU’s investigation, as well as provide academic assistance and communicate with professors on the subject of absences, missed exams and grade change requests.

Bloomington Police Department 220 E. Third St. 812-339-4477 or 911 for an emergency police@bloomington.in.gov bloomington.in.gov/departments/ police Counseling and Psychological Services 600 N. Jordan Ave., fourth floor 812-855-5711 healthcenter.indiana.edu/ counseling IU Police Department 1469 E. 17th St. 812-855-4111 or 911 for an emergency iupd@indiana.edu indiana.edu/~iupd Monroe County Sheriff’s Office 301 N. College Ave. 812-349-2534 sheriffsoffice@co.monroe.in.us monroecountysheriffsoffice.us

Office of Student Conduct 801 N. Jordan Ave. 812-855-5419 ethics@indiana.edu studentaffairs.indiana.edu/officestudent-ethics

Protective Order Project Maurer School of Law, 211 S. Indiana Ave., Room 010 812-855-4800 pop@indiana.edu law.indiana.edu/pop

Office of Student Welfare and Title IX 400 E. Seventh St., Poplars Building 833 812-855-4889 titleix@iu.edu studentwelfare.iu.edu

Student Advocates Office Eigenmann Hall, 1900 E. 10th St., West Room 225 812-855-0761 advocate@indiana.edu studentaffairs.indiana.edu/studentadvocates

Protective Order Assistance Partnership 301 N. College Ave. Room 201 812-349-2614 monroeprosecutor.us/preventioneducation/domestic-violence/ protective-order-assistancepartnership

Student Legal Services 703 E. Seventh St. 812-855-7867 stulegal@indiana.edu getlegal.indiana.edu For information on resources related to sexual misconduct reporting and student misconduct procedures, see stopsexualviolence.iu.edu.


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