Caught in a changing system: A survivor’s story after her perpetrator is allowed to re-enroll at Cal Poly

Editor’s note: An animal science senior who wishes to remain anonymous will be referred to as Jane Roe for the purpose of the story. The accused assailant will be referred to as he/him.

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Jane Roe said she was raped as a freshman in her residence hall room. She filed a complaint with Title IX. The university upheld her complaint, finding the accused man in violation of Title IX.

In fact, the university upheld it three times, counting two denied appeals. The next year, he was kicked off campus and expelled. The case was closed and she was told it would never be reopened.

Now, Roe is a senior. She was told earlier this year that the man she said raped her is allowed to re-enroll this quarter because of a court order that is upending how the entire California State University (CSU) system deals with Title IX cases.

“It’s been hard. Because now he could be over there – I don’t know. He could be on campus again. But with this I have become kind of vocal about it because I’m angry, I’m so angry,” Roe said. “And I’m hurt and I’m upset and I feel defeated. I’ve lost trust in a system that’s supposed to be set in place to help and it’s not helping.”

“He could be on campus again. But with this I have become kind of vocal about it because I’m angry, I’m so angry.”

How did this happen?

The possibility of anyone expelled for sexual misconduct re-enrolling at Cal Poly is occurring as a result of several events.

In August 2018, a state court ruled that a student at Claremont McKenna College who violated Title IX was denied a fair hearing because he was not able to question the woman who accused him of rape in the case Doe vs. Claremont McKenna.

Shortly after the Claremont McKenna case, Roe’s perpetrator sought a writ of mandate – an order from an appellate court directing Title IX to change its ruling. The appellate court ruled in his favor, finding he was denied a fair hearing because he was not provided with all evidence against him or given an opportunity to question Roe.

Both rulings align with the California Appellate Court overturning Title IX findings against a University of Southern California (USC) student, who was accused of sexual misconduct, on the grounds that he did not have the opportunity to cross-examine witnesses directly or indirectly.

The USC case set the precedent for a California law put into effect Jan. 4, 2019 requiring California universities to adopt a cross-examination model for headings in all Title IX cases.

Roe is one of many students affected by these changes. Currently, Title IX cases at Cal Poly and every other CSU are halted. The university is unable to provide the number of cases directly affected at Cal Poly due to privacy matters, according to University Spokesperson Matt Lazier.

The California mandate reverses the expulsion of students who were expelled through Title IX and are in the appeals process or still have time to appeal. There is nothing legally preventing students who violated Title IX and were expelled from re-enrolling in Cal Poly.

Currently, Title IX cases cannot proceed past the Investigation Report, a summary of investigative findings that does not include the investigator’s decision as to whether the accused was in violation of Title IX or not. Cases that are still pending will have to redo the fact-finding process under the new cross-examination model.

The California mandate is separate from U.S. Secretary of Education Betsy DeVos’s proposed Title IX changes, although, one of DeVos’s proposed changes would also require a live-hearing model. It is unknown when DeVos’s changes will be implemented, if at all.

In an interview with Mustang News, President Jeffrey Armstrong said he would be a proponent of limiting live hearings as much as possible. The CSU Chancellor wrote a letter to DeVos regarding concerns about these proposed changes. This letter was signed by all 23 CSU presidents, including Armstrong.

A timeline of Roe’s case

On May 25, 2016, Roe reported to the University Police Department (UPD) that she had been raped. She initially went to Safer, but said she was told there was no chance of her winning her case.

“I stayed silent for a really long time and it really started to eat me up inside,” Roe said. “And I finally got the courage to go to the police station a few months later and report what happened to me, which was obviously very difficult — you relive the whole entire thing and it’s just a really hard process in itself.”

“I stayed silent for a really long time and it really started to eat me up inside”

After a five-month investigation, Roe was notified by Title IX that based on a preponderance of evidence, the university found sufficient evidence of a violation of Executive Order 1097, which prohibits sexual misconduct of any kind. A preponderance of evidence indicates that it is more likely than not that the violation occurred.

On Nov. 9, 2016, the accused assailant appealed the University’s decision. On Dec. 14, 2016, his appeal was denied by the Chancellor’s Office.

On Feb. 24, 2017, the university held a sanctions hearing before Hearing Officer Tera Brisbee, who recommended the university expel him.

On March 21, 2017, Vice President for Student Affairs Keith Humphrey expelled him.

In April 2017, he again appealed this decision, and the Chancellor’s Office denied his appeal again.

“I finally got the courage to go to the police station a few months later and report what happened to me, which was obviously very difficult — you relive the whole entire thing”

After months of ongoing investigation, Roe said she felt relieved when he was expelled. She was told her case would never be reopened.

“I felt safe on campus because when they’re expelled, they’re not allowed to step on any CSU campus,” Roe said.

Safe?

But that feeling of safety changed when Roe got a call from the Title IX Office during the first week of her senior year at Cal Poly, in September 2018.

“I got a call from the Title IX Office saying that he had filed a lawsuit to be let back into Cal Poly. It threw Title IX off,” Roe said.

On Sept. 21, 2018, he was granted the petition for writ on the basis that he was not provided with all of the evidence or given an opportunity to question Roe or other witnesses in any manner.

The accused assailant’s lawyers did not respond to Mustang News for comment.

What’s next for Jane Roe

After Roe learned he would be allowed to re-enroll at Cal Poly, Roe inquired about reopening her case with Title IX. She said she asked how a live hearing would work and was told there is no live hearing process established yet.

Roe said her only options to avoid going to school with him would require reopening her case.

However, even if she decided to reopen her case, she would have to wait until the cross-examination process is implemented by Title IX.

Roe said undergoing the cross-examination process raises concerns in itself.

“I have gone through such intensive therapy, if they tried to interview me, I don’t know if I could talk about it in as much detail as they would want,” Roe said.

“I have gone through such intensive therapy, if they tried to interview me, I don’t know if I could talk about it in as much detail as they would want”

Roe’s only option that would not require her to undergo the cross-examination process is to not reopen the case and know that he could be on campus.

Lazier was unable to comment on the accused assailant’s enrollment status. Mustang News cannot confirm whether the student has yet returned to Cal Poly.

In an interview with Mustang News regarding Safer joining Campus Health and Wellbeing in Fall 2018, Safer Coordinator Kara Samaniego explained the toll that sexual assault can take on a person’s health.

“When we’re looking at somebody holistically and they experience violence, we know that there’s not just that emotional impact, there’s not just these isolated impacts in their life, it really affects their holistic wellbeing — every aspect of their life,” Samaniego said.

According to the Rape, Abuse & Incest National Network, 23.1 percent of females and 5.4 percent of males experience rape or sexual assault among undergraduate students. At Cal Poly, total sexual assaults including rape, incest, fondling and statutory rape increased by more than 50 percent from 2015 to 2017, according to the latest Annual Security Report.

Safer also saw a 45 percent increase in students, faculty or staff utilizing Safer Crisis and Advocacy services consistently from 2014 to 2017, according to the 2016-2017 Safer Annual Report.

Roe said she and other sexual assault survivors are uniting to support each other amidst the backpedalling and halting of Title IX cases.

“We’re in the process of rallying the troops and definitely trying to keep ourselves as resources for girls and trying to have a support group because this is such a bizarre thing that’s happening,” Roe said.

Following DeVos’s proposed changes, both faculty and students made efforts to promote comment writing on campus during a 60-day comment period in order to fight back against proposed Title IX changes.

Roe added that she wants to make sure people are aware of changes being made to Title IX and how they have already begun affecting students.

“It’s not just my life; it could be a future woman. Or even a future male. It’s something that needs to be known that it’s happening,” Roe said.