July 2018: Reporting on sexual assault



Sexual assault is one of the hardest topics to report on, but also one of the most consequential. On this month's podcast, we talk with students and legal experts about how to find and use records to cover this issue.


“The System” by Indiana Daily Student: http://bit.ly/2L8ebUf

“How universities do, and don't, inform the public about sexual misconduct cases” by University Daily Kansan: http://bit.ly/2A8TBxy

SPLC’s webinars on covering sexual assault:

http://bit.ly/2zWtH0c

http://bit.ly/2LAW0m0


Samuel Breslow: Hi, I'm Samuel Breslow. 

Emily Goodell: And I'm Emily Goodell.

SB: And you're listening to the Student Press Law Center podcast. The SPLC is a nonprofit legal agency devoted to defending the free press rights of the nation's high school and college student journalists. Our reporting is funded by generous donations from our listeners who help keep this program ad-free—without that support, I'd be telling you to go mattress shopping or something right now.

EG: This month, we're going to be talking about one of the most difficult but potentially impactful topic any student newspaper can cover — sexual assault. We'll be hearing from student journalists at the University of Indiana and the University of Kansas who reported in-depth stories on their campuses. You can find a link to the articles in the show notes. Go read them — seriously, they’re phenomenal. We'll also be hearing from legal experts about how to use public records.

SB: Before we begin, a quick note: we'll be talking here mostly about the practicalities of reporting, but this episode does still contain reference to sexual violence. Also, since this podcast is compiled from two of our webinars, the audio quality is a little flaky at times. As always, you can find the full transcript of this episode on our website, splc.org.

EG: Alright, let's get to it. To start off, here's Jamie Zega and Carley Lanich from the Indiana Daily Student. Carley is the current editor-in-chief and Jamie was editor-in-chief this past fall. In September, they helped publish a four-part series on sexual assault at Indiana University called "The System.” They spoke with SPLC executive director Hadar Harris on.

Jamie Zaga: I’m Jamie. 

Carley Lanich: Hi there, I’m Carley. 

JZ: Alright, this kind of started a year ago, more than a year ago. 

CL: Yes, yes. We obviously picked this story up before even seeing some of these recent revelations of the entertainment industry, in politics. Something that led us to it was a series of daily stories about an office here at IU where the administrator who oversees cases of sexual assault reported by students was himself accused of sexual assault. Now, this administrator went through a series of investigations, some of those being university-based, some of them police-based, and was in these investigations cleared of guilt, there were never charges pressed, but it opened up this greater question to us: what happens when a student reports sexual assault at a university? It's a very different process than what you'd see in the criminal justice system. So we dove in to kind of that question, looking to better understand the policies and the procedures, but also to provide a human voice, to look for the students that are actually going through it. And the way we did this took a lot of time and effort. These are obviously sensitive stories and we wanted to allow students to approach us necessarily. We didn't want to come over as, you know, overly aggressive, like you have to share this story. It's obviously something we recognize as very sensitive, so we took an approach of posting flyers on our campus, posting notices in our print products. We even at one point, under the advice of some editors who've recently graduated, shared our own stories of sexual assault on Twitter, because we recognize that this is something that's, you know, not unique to just students but affects people even in our own newsroom. So upon doing that we started to just have emails flood in of people with various interests, maybe just wanting to talk to someone, to full-on wanting to share their story with their face, their video and what they'd experienced. After we spoke with mainly women who had reported to the university, we recognized that these cases are not one-sided, that there's only someone else who's been accused of this, you know of this act, and what is it like to be someone sitting on the other side accused of sexual assault? So then we attempted to reach out to those students and found that it's very difficult for someone who's been accused of sexual assault to put their face and name to story like that as well. So we spoke to one student anonymously, confirming his reports through communications with our university offices and through reports that had been filed at our school. And then we also spoke to attorneys who represented students accused of sexual assault in these cases to provide more uh understand how they interact with the university office. And what we found, ultimately, on both sides of these cases is that students have very similar complaints regardless of whether they were someone who had reported or been accused.

JZ: You know, until it came out we really weren't sure how the administration would respond, you know, if it would become, you know, just this battle between the administration and also if they would just kind of let it happen and respond accordingly. So, you know, obviously Carley and I did everything to make sure that we got both sides. Carley met with the Title IV coordinator numerous times, we met with our provost a couple of times as well. And so that was just to make sure that we were all kind of, I don't know if I want to say on the same page, but making sure this wasn't just us kind of dropping this and saying, “Here you go.” 

CL: From a reporter’s standpoint, we clearly wanted to give them a chance to respond.

JZ: Right, right. 

CL: So, you know, after a year of reporting, we realized not just that these are concerns of a few students but we interviewed upwards of a dozen students who were all telling us very similar things about what had happened in their experiences at IU. So we wanted to give them a chance to respond to, you know, if there's a way to assure students that this is the rationale behind why student might have this concern, this is what we might be doing going forward, we wanted to give them that opportunity and then as Jamie mentioned, we knew this story was going to carry some weight, we wanted them to be prepared.

Hadar Harris: This is not easy reporting and this is really sensitive, and so I’m wondering about roadblocks that you may have had. 

CL: Trying to find students who are accused of sexual assault was particularly hard and I touched on that earlier, we kind of addressed it in a way of, let's see if we can speak to some attorneys who've been involved in these cases and that was really helpful because they could speak on behalf of, not just one student, but many clients they represented. One of those attorney someone who'd previously worked at IU, so she could kind of give us insight as to how the office worked as someone who had previously been working for that department and then moving into the other side of how she's represented students. Another way we kind of looked to address that, to sure up any  concerns that we weren't getting the full picture on the other side of things, we look to lawsuits that have been filed and if you've ever taken a look at one of these big federal lawsuits, gender discrimination ones especially, they're incredibly detailed. They lay out exactly what, you know, someone thought had happened. And some of those lawsuits were, you know, more of an anonymous Jane Doe lawsuit or John Doe lawsuit where students weren’t named and then several students were named and we made every attempt to reach out to folks. We did see that a lawsuit was filed, some of them were ones that we'd previously reported on so that helped.

And then I would say as far as anything else, maybe the the largest complication we had right, right before print we did have one student come out and say to us, you know, “I'm a little uncomfortable with sharing my story, I've seen some of this play out, I'm not sure I want to be a part of it,” and this was a source that I'd been in communication with for, you know, many weeks leading up to the series so, even after trying to give her a call talk through some of her concerns, she still wasn't sure and we said, “Look this is a sensitive story, this is your story, we don't want to run with anything if you're not comfortable with it.” So we were lucky in the sense that we had, you know, several other students who felt very strongly that they wanted to come out with their story that we didn't have a problem with retracting her part of it. 

SB: That was Jamie Zaga and Carley Laneck of the Indiana Daily Student. Next up, we’ll be hearing some legal advice for getting public records to use in your reporting. Our guest is Daniel Carter. Daniel is one of the nation's leading victims' rights and campus safety advocates; he has trained thousands of campus officials in the Clery Act and was instrumental in helping pass it in the first place. 

Here he is speaking with SPLC’s senior legal counsel, Mike Hiestand.

Daniel Carter: Before Clery, campus crime and campus crime records were pretty much a black box. Student journalists and others simply had no access to them, so we've come a long way in the last 25 years. And the Clery Act was first enacted in 1990 as Consumer Information legislation. It's best known for reporting of campus crime statistics, in addition to some timely warning and emergency notification information, which is more periodic as information is warranted to be sent out. There's also a public crime log, so if a college or university has a police or security department, and it doesn’t matter if the institution is public or private because the Clery Act applies to all schools that participate in federal student aid program funding, which is the vast majority of all colleges and universities. If there's a crime reported, any crime reported to the police or security department has to be made public in that crime log within two business days unless it would endanger an investigation, cause a suspect to flee, and there's a very limited set of exceptions. There has to be a general description of what happened,  has to log when it was reported, has to log when it happened and the disposition, if any. For many cases, it may be under investigation. The information must be kept updated for 60 days and the information in the crime log, as I said, be open for public inspection and generally during regular business hours of the police or security department, but that does vary from time to time.

And it must be archived after 60 days for upwards of seven years, sometimes longer if an institution keeps it, and that log information can be requested and must be made available within two business days of a request. The Clery Act, in addition to the crime statistics, is also a wealth of information about how college and universities respond to crime on campus, including two notable areas where the policy statements are extensive. Sexual violence, which includes sexual assault, dating violence, domestic violence and stalking, so it has to articulate extensively the policies and procedures that a college will follow or should follow, as well as emergency notification and response and evacuation. So it's a wealth of resources. The Title IV is primarily civil rights legislation and it's less focused on the disclosure of information but it too does require institutions of education that participate in federal funding to disclose to their students what their sexual harassment and discrimination policies are, at which sexual assault is considered an extreme form of hostile environment, sexual harassment, who it must be reported to, things like the timeframe for resolving complaints and options for filing a complaint with the office for civil rights with the United States Department of Education.

Title IV was enacted in 1972, Clery Act was enacted in 1990 and the Family Educational Rights and Privacy Act was acted in 1974, and it's generally known for protecting the confidentiality of student educational records but there are certain key exceptions that can be used. One of the most notable, and this was added in 1998, is that if a student is found responsible for violating school rules in connection with an alleged crime of violence, which does include sexual assault, the final results of that disciplinary proceeding are not part of their confidential educational records and may be disclosed without their written consent. It's a very not very well known exception to FERPA. There's also a health and safety exception and also of interest is that students have a right to request access to their own records. And in fact, the Student Press Law Center has a FERPA records request generator, as well in addition to the public records request generator. And one thing I would definitely encourage students to do is to let students know that if they've been through one of these proceedings they have a right to access the education records from it. Now, some of them may be restricted in terms of public disclosure, a victim in a crime of violence has access to their outcome in cases of sexual assault and sexual violence, they have an absolute right to re-disclose that information to the journalist if they so choose, so there are options that reporters can use to get access to that information.

Mike Hiestand: And I think that brings up a good point, in terms of, FERPA, it does provide access to your own campus or your own education records. It's not a mechanism in itself for getting access to, for example, the the final results of a disciplinary proceeding like a campus court proceeding. For that, you would have to use your your state open records law or something like that, or state open meetings law to get access to that sort of information. So when we're talking about Title IV and Clery, I mean, Title IV is kind of new to the game. I mean, typically what I had always advised people is when they're looking for information on campus crime, if you're at a public school, first start with some of your general public records sorts of requests, working with the police in addition to what's provided by Clery, because Clery provides kind of a floor of information that schools have to provide. If you're at a public school, they additionally have to provide that required by their public records laws I guess as well.

When you're at a private school and your only access to to these records is Clery, what has been your experience in terms of schools being in compliance? I mean, the information that schools are reporting, are schools doing a good job in terms of actually reporting that information and disclosing that information to students?

DC: Well, I mean, even after 20-plus years the answer to that question is it still varies significantly in terms of the quality of information that schools disclose. And oftentimes what you'll see is if student journalists raise the questions and it becomes an issue, oftentimes the process is fixed perpetually, so you can have reporting on the fact that information that under the Clery Act you're entitled to is not being made readily available, and oftentimes that in and of itself can get that information available and it continues to be available thereafter.

MH: There are penalties. I mean if schools, don't do their job under Clery, there are some teeth to this law. Maybe you can talk a little bit about that and what shouldn't, students should do if they think that their schools aren't being fully open.

DC: One caution I have about Clery Act enforcement in terms of a journalistic tool is that when the United States Department of Education, and they have a unit called the Clery Act Compliance Division, and they can be reached at clery@ed.gov or clerycomplaint@ed.gov, and again that's the Clery Act Compliance Division, is when they open a formal program review and that's the name of an official investigation, can run anywhere from two to five years. So if you're trying to report it in a timely manner on incidents and you report to the Department of Education that you can't get access, they may resolve the case and there may be fines upwards of almost $55,000 per violation, so as Mike said there is teeth, but you may not get it quickly. That's one of the reasons I would encourage student journalists to research the law, report on what isn't being disclosed, talk about the fines or civil penalties as they're officially called, and try to encourage their institution to be more transparent. That's a faster process and if that doesn't work yes go to the Department of Education. And I know sometimes there's an ethical question about filing a complaint under the Clery Act but in this instance it's no different than going to a state arbiter of public records requests, because you're entitled to this information, if you're not getting it the official arbiter is the United States Department of Education. And one piece of good news recently as they have initiated what appears to be a more rapid resolution process for some cases, where they're not conducting two to five year reviews they're closing cases relatively quickly, admonishing schools to comply, so there may be a new faster option. We've seen about a dozen or so cases of it this year and I think that's encouraging because there's an option for student journalists to go to the Department of Education, say we’re not getting these records and perhaps get a quick turnaround that doesn't involve a full-on investigation and get access to that information that they deserve. 

MH: That's wonderful, because that has been a huge problem, just the the length of time that it takes. You know, students graduate and these cases tend to disappear sometimes.

SB: That was Daniel Carter. Speaking of students reporting on their school’s transparency, or lack there of, our final guests this month are Conner Mitchell and Darby VanHoutan of the University Daily Kansan

Darby VanHoutan: I would say the biggest restriction, I think that he agrees because we talked about a lot and we've kind talked to other people about it, is just the laws that Kansas has in terms of open records and I know it's same with a lot of places, is that it leaves a lot of it to the discrepancy of the university and anybody that's receiving open records to kind of say no and many aspects or else charge insane amounts of money that, especially student newspapers can't afford. I know that the sanctioned data that I received that the previous editor-in-chief got was upwards of $300 and obviously that's hard for a student newspaper and it took a lot of time to get and I know that Conner’s been charged even more amounts of money.

Conner Mitchell: Yeah I mean the two requests that led to the published story, those ended up costing around $560 and I've since filed another request, they asked for over a thousand and then agreed to waive half of it so it was still another $528. I ended up having to crowdsource the funding for that one. I think the biggest advice I have is just get creative, don’t let universities and agencies use cost-prohibitive measures to stop getting records. 

DV: Yeah, and like any way an agency, especially a university tries to stop you, I would say don’t let it discourage you. I know that’s another thing that frustrates me, as well as like talking to my reporters and stuff, when they feel discouraged, is the university kind of, especially in these open records, before they got to the point where they were like, “Okay well we might be able to give you something after you pay us a $1000,” they sent us emails and responses saying “We have to reconsider” or “We're gonna have to look at the scope of your request,” just so they can keep prolonging it so that especially student newspapers the turnover is like every semester and they're kind of I think hoping…

CM: Hoping that we go away basically.

DV: Yeah or that the data, we forget about it or that we graduate and it can't be found, and to not let that stop you either because I think they think that student journalists especially are kind of naive and don't have the skills or resources and just showing that you do care and that you know the things you're talking about proves to be really helpful.

HH: Let’s talk just for a second about the stories that you ended up publishing, because I think that in your stories you actually were very transparent about the time and the resources that it took to get these records and the process involved. That seems like an interesting editorial decision, and you know, it is definitely part of this story. How did you decide and why did you decide to include that in your reporting?

CM: I think including the cost of what it takes to get these records serves as a public interest thing. I think that without that, the public doesn't get quite as big of a grasp on what it really takes to tell these stories because this is a topic that universities and government agencies don't want out in public so they're gonna do whatever they can to stop it from being there.

DV: Yeah, I know that I get really excited about open records, I know that might be like a journalist thing, but that a lot of my friends and other people know my peers that I talked to understand what an open records request is that they don't understand that open doesn't mean free and easily accessible. So to show that, I think that we were trying to include first of all the money that we as an organization had to spend, as well as the time, because I think that has a lot of weight, especially with administration at universities and students that read the stuff that we're putting out, because they see that over $400 was spent to get these things, something that should be transparent to the student body, which is how their peers accusations or allegations of sexual assault are being handled. I think that that's why we included that to show what it actually takes and that open doesn't mean open.

CM: And this has been an ongoing problem, at KU specifically, the cost that they've associated with records related to sexual assault and not related to sexual assault, so that's part of it too is kind of trying to leave a paper trail I guess for the journalists to come after you to let them know that it's not just them that's struggling with the cost measures.

SB: That's all for this month, folks! This has been the Student Press Law Center podcast, produced out of our headquarters in Washington, D.C. I’m Samuel Breslow.

EG: And I'm Emily Goodell. Thanks for joining us! To view the full webinars featured in this podcast, see the show notes or go visit our YouTube channel. Still have questions about reporting on sexual assault or need legal advice specific to your situation? Go to our website, splc.org, where you can schedule a free call with our lawyer.

SB: Our supervising producer is Danielle Dieterich. Our theme track is "Inspirational Life" by Soundotcom.

EG: Also, did you know we publish news stories every week? One of our recent stories explores how PR offices try to take control of the college narrative through spin, stonewalling and deception. Another walks reporters through using public records to report on sexual assault at public universities. Go give them a read on our website!

SB: That's it for now; see you next month!