Slaying the Messenger?

February 26, 2013

Landen Gambill took an unusual step after she was sexually assaulted.

She reported it.

Unusual why? Because the vast majority of rapes go unreported.

But now Gambill is the one on trial. The student-run Honor Court at the University of North Carolina at Chapel Hill informed her last week that it’s charging her with violation of the Honor Code under a statute prohibiting “Disruptive or intimidating behavior that willfully abuses, disparages, or otherwise interferes with another….  so as to adversely affect their academic pursuits, opportunities for university employment, participation in university-sponsored extracurricular activities, or opportunities to benefit from other aspects of University Life.”

In other words, as the court told Gambill, she could get expelled for saying she was raped.

“All I did was stand up for what was right and speak out about the university’s treatment of sexual assault survivors,” she said in an interview. Studies estimate that while 25 percent of women survive rape or attempted rape in their college years, 83 percent of incidents are not reported to police, and more than half of victims don’t tell anyone at all.

In a letter to Gambill, obtained by Inside Higher Ed, the head of the Honor Court said evidence provided “a reasonable basis” to believe a violation may have occurred. A few of the possible penalties are expulsion, suspension, grade penalty, or “loss of privileges.” The code itself says that all students shall "refrain from lying, cheating, or stealing."

Lawyers and student conduct administrators, however, say the university is interpreting its policy incorrectly, creating a hostile environment for victims and chilling free speech, and opening itself up to litigation from Gambill and the federal government.

Gambill has spoken about the assault in different media outlets, but she’s never publicly identified the perpetrator by name. And last month, half a year after the University of North Carolina’s student-run Honor Court determined her case lacked sufficient evidence to punish her former boyfriend -- who Gambill and others said repeatedly abused her verbally and sexually – she, along with 64 other survivors and a former dean of students, filed a complaint with the U.S. Education Department over UNC’s handling of Gambill’s case and others.

Even in the instances where Gambill did speak out, the things she said focused on the Honor Court hearings, not on her actual assailant or assaults. Gambill says that in her student conduct hearing, she was asked inappropriate (and not uncommon) victim-blaming questions. One student asked her, she says, “‘Landen, as a woman, I know that if that had happened to me, I would've broken up with him the first time it happened. Will you explain to me why you didn't?'" She also said the Honor Court disclosed the assault and complaint to her parents without permission.

The OCR complaint also alleges that UNC underreports campus assault statistics, a charge the university has denied.

News of Gambill’s newest parlay with the Honor Court spread like wildfire Monday on Twitter, with some national media coverage and students, staff and advocates from North Carolina and beyond expressing solidarity with the hashtag #StandWithLanden.

“To entertain this as a viable claim is a problem, because it’s not,” said Colby Bruno, managing attorney for the national Victim Rights Law Center. “To me, it’s outrageous.”

Gambill cannot have willfully abused or disparaged her alleged assailant because she never publicly identified him, Bruno said. Given that lack of evidence, it appears that the court is conflating the two charges – Gambill’s and the male student’s – where it shouldn’t be. A university’s response to a complaint should be about the claim and policies alone, Bruno said, not previous context gleaned from media reports and campus judicial hearings.

Title IX of the Education Amendments of 1972 – one of the federal statutes Gambill and others are alleging UNC violated – mandates fair treatment of both the victim and the accused. But this newest complaint should not be addressed under the rubric of Title IX because it’s not an assault case.

“Universities mistakenly give more attention to the secondary complaint because they think they have to deal with it under these guidelines of fairness and Title IX,” Bruno said, “but what they’re missing is the whole point.”

Bruno and others agreed that while this type of situation is not explicitly referenced in the Education Department’s 2010 “Dear Colleague” letter that demanded colleges have appropriate Title IX policies and procedures in place to address and prevent sexual assault on campus, UNC’s charging Gambill goes against the spirit – and potentially the letter – of the law.

OCR has repeatedly, and pointedly, told universities they must not create a hostile environment for victims, and in recent years has proved willing to come down on those that do. But this has the potential to do just that, by chilling victims’ speech and potentially discouraging other victims to come forward in the future.

“I think that they’re treading on very, very thin ice,” said Daniel J. Swinton, senior executive vice president of the National Center for Higher Education Risk Management. “An institution that seeks to sanction a student for speaking out runs the risk of engaging in retaliation, which would be a violation of Title IX.” (A university interfering in a matter between two students would typically be done -- and even then only sparingly -- to address things like stalking or harassment, Swinton added.)

Gambill has no doubt that UNC is engaging in retaliation. But responding to an inquiry from Inside Higher Ed, a UNC spokesperson said the university may not “encourage or prevent” the Honor Court’s top officials, the student attorneys general, from filing charges in any case.

Given that, “a claim of retaliation by the university would be without merit,” Karen Moon, director of UNC News Services, said in an email. The court may consult with a faculty advisory committee on difficult cases, but Moon said she could not comment on whether they had. While there is a process for administrators to hear and overturn cases, Moon said, it must be initiated by the student attorneys general.

Gambill’s first Honor Court hearing – where the court dismissed the charges against her former boyfriend – took place only a month before the court stopped hearing sexual assault cases. UNC made that change in light of student complaints and the Dear Colleague letter.

That is one of many changes that universities are making in response to the letter, with the end goal of making sure the system accounts for the dynamics of sexual misconduct and meets students’ needs, said Gina Smith, a partner at Pepper Hamilton law firm retained by UNC to help understand local concerns about assault and improve campus policies.

“What we’re seeing at campuses is a microcosm – and actually a diluted version – of what we see in society at large,” said Smith, a former sex crimes prosecutor who now advises on institutional response to sexual misconduct full-time. “I’m really heartened about changing the conversation, and I’m really heartened by schools like UNC [and Amherst College] that are going to take it on the chin and own it.”

The composition of the panel that hears sexual assault accusations is less important than the amount of training they receive, said Chris Loshiavo, president of the Association for Student Conduct Administration. Entirely student-run boards are less common than those with some faculty or administrator representation, but in some cases the students are the best members because they’re more likely to show up for training.

However, the only other time Loshiavo’s heard of a court turning around and charging an alleged victim is when there was evidence that he or she falsified the initial report. Loshiavo compared the situation to how colleges have amnesty policies now, and don’t charge students for reporting medical emergencies because they’re underage and have been drinking.

“The whole issue is trying to encourage students to report and not silence them, and we already know that victims are afraid,” Loshiavo said. “Committee members need to understand the process in terms of what the victim is going through…. You still need to be able to ask tough questions, but in a way that’s not victim-blaming.”

Gambill is now working with SAFER Carolina to address assault at UNC. The group is advocating for new institutional policy that takes student input into account.

“We want transparency for the university and we want them to answer for the injustices that have happened,” Gambill said. She is scheduled to appear before the Honor Court later this week.

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