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Internal sexual misconduct investigations complicate police response

By Austen Hufford, Digital News Editor
Published March 20, 2013

A 31-year-old male graduate student is being investigated for sexually assaulting three females in three separate incidents, two of which occurred in September 2012 and the third this February.

The cases — which caused unease in the University community because of repeated assaults at Zaragon Place — raise concerns about the ability of police agencies to investigate sexual assault amid the confidentiality of internal University investigations. At the same time, University investigators are charged with the difficult responsibility of maintaining a balance between survivor rights and community safety.

The second reported incident, which occurred in September 2012, was discovered during an internal University investigation into another sexual assault allegation. University Police were informed of the first incident but were not made of aware of the second until February — therefore, they were unable to consider the second allegation as evidence for a potential pattern of incidents in September.

The University community was not notified of the allegations until after a third student was allegedly sexually assaulted in the same location in February and University Police determined there was a possible threat to student safety.

A crime alert detailing all three incidents was sent out the night of Feb. 27 once University Police established a pattern from the information they received.

“As soon as we had the information that led us to believe it was a pattern of behavior that posed a public safety threat and we could identify where these incidents allegedly occurred, we issued a crime alert,” University Police spokeswoman Diane Brown said.

Since Aug. 18, 2011, the University has operated under an interim sexual misconduct allegation procedure to investigate allegations of student sexual misconduct. The new procedure was put in place after an April 2011 mandate from the U.S. Department of Education was sent to colleges nationwide. The mandate reaffirms a school’s obligations to investigate claims of sexual misconduct under Title IX, the federal anti-sex discrimination statute.

“Sexual violence is a form of sexual harassment prohibited by Title IX,” the mandate states. “A school that knows, or reasonably should know about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.”

At the University, the Office of Institutional Equity is responsible for conducting these investigations. Allegations of misconduct can come to OIE from a variety of sources, including the dean of students, the Office of Student Conflict Resolution and University officials.

University spokesman Rick Fitzgerald said the staff of OIE is made up of “highly trained investigators” and has experience looking into other forms of misconduct, such as discrimination or harassment by a University employee.

Fitzgerald said the crime alert response to the allegations was appropriate once OIE and University Police had enough information.

“There were various levels of information available, and it didn’t all come together until the most recent incident was reported,” Fitzgerald said. “Then what you saw was swift action on everybody’s part.”

According to Fitzgerald, because the case is still active and the University is bound by student privacy laws, not all details can be disclosed.

After interviewing those involved and any possible witnesses, an OIE investigator determines whether the accused is guilty. These investigations are different from police inquiries, and the standard of guilt for an OIE investigation is lower than that of the criminal justice system.

Sexual misconduct allegations against students are generally first reported to the OSCR which then hands the investigation over to OIE.

While investigating the first September incident, OIE learned of a second possible incident involving another sexual assault by the same suspect in the same apartment. It is currently unknown how much information OIE knew about the second incident and why University Police were not told about it until months later.

Brown said a crime alert was not issued for the first incident because not enough information was known at the time and the survivor did not want to file a police report. The second survivor also did not wish to file a police report or contribute to the OIE investigation. No police reports were filed for any of the three incidents until February.

“People cannot be forced in these kinds of situations to file a police report,” Brown said.

Police reports, which attempt to get all the facts recorded, are vital for most police investigations. Det. Lt. Robert Pfannes of the Ann Arbor Police Department, who is investigating the three allegations, said a person unwilling to file a police report makes it extremely difficult or even impossible for police to investigate a crime, especially in cases that only involve two people.

“We can’t investigate something we don't know happened,” Pfannes said.

Holly Rider-Milkovich, director of the Sexual Assault Awareness and Prevention Center, said the absence of a police report does not mean an event didn’t occur. There are many reasons a survivor might not choose to file a report, she added, including not wanting to undergo detailed questioning by the police or a fear of not being believed.

“We want survivors to be in complete control of their story and to share as much or as little information as they choose,” Rider-Milkovich said.

In the latest incident in February, the survivor reported the assault to a University staff member. The staff member reported the allegations to University Police on Feb. 21, who then informed OIE. The survivor initially declined to file a police report, but later did so with Ann Arbor Police.

Once they were made aware of the third report, OIE investigators discovered a connection between the incident in February and the September assaults, Fitzgerald said.

OIE’s assertion of a relationship between three incidents suggests that the second incident was significant enough to be recorded or remembered by someone in OIE.

Within a week of being informed of the third report, University Police issued a crime alert about all three incidents. University Police are not responsible for investigating any of the three crimes because they occurred at an off-campus apartment, in the jurisdiction of AAPD.

Pfannes said AAPD was first notified of all three allegations by University Police in February. At that time, an investigation commenced and remains active. While the AAPD has contacted the suspect, he has not been arrested or arraigned.

Maintaining a Balance Between Survivor Rights and Community Safety

With the requirement by Title IX that the University investigate all claims of sexual misconduct, questions arise about the extent to which information is shared with University Police.

Generally, OIE discloses crime allegations to University Police when they are “Clery-reportable” — crimes identified in the Clery Act, a 1990 federal law dictating how universities must disclose on-campus crimes, such as robberies and sexual assaults.

The Clery Center for Security on Campus is an organization that initially lobbied for the law and aims to prevent crimes on campus. Abigail Boyer, director of communications and outreach for the organization, said the law applies only to crimes that occurred on campus and in a few other specified areas, such as Greek-life houses.

OIE generally reports all Clery violations, regardless of location, and then lets University Police determine if a crime alert is required.

Crime alerts from the University are commonly issued for incidents that go beyond those mandated by law because many students live off campus, Brown said. A majority of the crime alerts issued in 2012 were for off-campus crimes and would not have been required by law.

The University considers OIE a “campus security authority,” which means that OIE must report Clery-reportable crimes it's aware of that occur in enforcement areas to University Police.

“Even at institutions with a police department on campus, a student who is the victim of a crime may be more inclined to report it to someone other than the campus police,” the U.S. Department of Education’s Handbook for Campus Safety and Security Reporting states. “For this reason, the Clery Act requires all institutions to collect crime reports from a variety of individuals and organizations that Clery considers to be ‘campus security authorities.’ ”

In an interview last month, Jay Wilgus, director of the University’s Office of Student Conflict Resolution said the Clery Act and other laws help determine what information is forwarded to law enforcement, no matter the preference of the survivor.

“We report all Clery-reportable violations to police regardless, and then encourage all students and all complainants to report to the police.” Wilgus said. “If we need to report because of the Clery Act, we will.”

At the start of its investigations, OIE determines whether to notify University Police. It is unknown if or how frequently intelligence is shared as investigations progress.

“OIE works closely with UMPD and the agencies share information as appropriate,” Fitzgerald, the University spokesman wrote in a follow-up e-mail.

The situation gets more complicated when the survivors want to remain confidential or do not want to cooperate with police.

The 2011 letter from the Department of Education stated that schools should weigh confidentiality requests against factors such as “seriousness of the alleged harassment” and “whether there have been other harassment complaints about the same individual,” such as in the case of the three alleged assaults at Zaragon.

Brown, the UMPD spokeswoman, acknowledged that there can sometimes be a conflict between respecting the confidentiality of victims and protecting the campus community.

“There is a challenging balancing act between helping an individual maintain their control and their privacy and preserving their rights, and protecting the public and keeping the community informed,” Brown said.

Rider-Milkovich said survivors should be the ones to control what get released.

“In a crime where a person’s ability to make choices and decisions for themselves and control their own lives has been taken away — which is the case in sexual assault — it’s very important for them to make choices about what happens next.”