Following Title IX investigation, student sees discrepancies between results, VCU consent policy

Illustration by Sammy Newman

Sarah Elson, Contributing Writer

The details described in this article may be upsetting to some readers.

When she woke up, there was blood all over the bed. On the sheets, all over a pillow and her underwear, she said. The inside of the comforter was coated.

Investigators asked her what clothes she had on and what type of underwear she was wearing. They wanted to know how she could tell the man she says assaulted her was upset that she didn’t want to participate in sexual activity. And among other “probing and uncomfortable questions,” one VCU student says she was asked whether she had an orgasm during the encounter.

A little more than a year after the sexual assault she says occurred in May 2018, Jamie, who asked that her real name not be published, is speaking out against VCU Equity and Access Services’ handling of the investigation, which found the man did not engage in non-consensual sexual contact.

Equity and Access Services handles all cases of sexual misconduct, sexual violence, sex discrimination and gender discrimination that are brought to the university as part of the Title IX policy.

“I think that it’s a mechanism for covering up sexual assault that happened at the university,” Jamie said of the department.

“People understandably often are quite upset when an investigation does not reach the outcome they hoped for. However, finding a respondent not responsible after conducting a fair and thorough investigation under the Policy, while protecting the privacy of the parties, is not covering up sexual assault.” — University Spokesman Mike Porter

She said there were discrepancies in VCU’s mandatory “Not Anymore” online training and the university’s consent policy, and the final conclusion of the investigation, including comments made in the report. Equity and Access’ consent policy defines affirmative consent as a “voluntary, informed, non-coerced agreement through words and actions freely given.”

Some elements of the language the “Not Anymore” training uses to describe consent are as follows:

  • Consent to one sexual act doesn’t mean a person is consenting to a subsequent one
  • It can be modified during sexual activity
  • Flirtatious behavior or a person’s dress do not imply consent
  • Passiveness, a lack of response and silence do not constitute consent

“People understandably often are quite upset when an investigation does not reach the outcome they hoped for,” said university spokesman Mike Porter in an email. “However, finding a respondent not responsible after conducting a fair and thorough investigation under the Policy, while protecting the privacy of the parties, is not covering up sexual assault.”

According to the U.S. Centers for Disease Control and Prevention, more than 1 in 3 women have experienced sexual violence in their lifetimes, and the U.S. Department of Health and Human Services’ Office on Women’s Health reports that 1 in 5 women in college experience sexual assault.

The final report, which Jamie provided to The Commonwealth Times, contains evidence, witness statements and comments made by an anonymous third party, who was in charge of deciding whether the alleged perpetrator was in violation of VCU’s policy in regard to non-consensual sexual contact. The report was given to Jamie by the lead investigator on May 20. It established that the “respondent” digitally penetrated Jamie, the “complainant,” who said force was used against her during the encounter, including hair pulling, grabbing and being moved into different positions. But the report found that because she was unable to recall the details of those behaviors — and could remember other details from the encounter — coupled with a denial from the respondent, no controlling behaviors were used against her.

“The Respondent acknowledged that he did not seek or receive consent. … However, Complainant gasped and jerked her hips,” read the final report.

The report goes on to question whether the gasping and jerking was a clear statement of pain, and concluded that the man was not aware if Jamie was in pain.

“Therefore given the available evidence, it was not unreasonable for Respondent to interpret Complainant’s response as indicative of affirmative consent,” the report stated. 

It also concluded that, based on the evidence, because the respondent didn’t pursue the encounter further when Jamie expressed a lack of interest in sexual activity, he understood the withdrawal of consent.

“For these reasons, the evidence establishes that Respondent would reasonably have interpreted Complainant’s behavior during the sexual encounter as indicating that she affirmatively consented to digital penetration,” the report stated.

During the investigation, the man Jamie says assaulted her was hired by RMC Events, she said, which provides security guards to VCU campuses.

“VCU Police has contracted security services with RMC Events, and so the security guards in the library are with RMC,” said police spokeswoman Corey Byers in an email. “Police oversee RMC’s operations on the Monroe Park Campus.”

Byers said VCU Police conducts criminal history checks for all candidates seeking employment by RMC Events, which is an independent contractor of VCU. RMC Events did not respond to requests for comment.

“He had basically unlimited access to residence halls, academic buildings, the library,” Jamie said. “He had access to all of that after hours, and I saw him around.”

Kaleigh Hodges, Jamie’s friend, said that after the assault, Jamie became depressed and developed self-esteem issues. Hodges said Jamie had trouble focusing on her classes and getting out of bed.

Jamie said she chose not to contest the findings of the investigation because she feels it “ruined” her first two years of college. Photo by Enza Marcy

The investigation seemed to worsen her depression, not help her,” said Hodges in an email.

Over the course of nine months, Jamie said she was interviewed for hours at a time and provided screenshots and six witnesses to corroborate her story.

Hodges said after the alleged assault, her friend no longer felt safe in many places on campus, including a friend’s dorm because the man Jamie says assaulted her lived there and became a security guard for the location.

“She felt that VCU was not taking her accusations seriously because they hired someone in an active title nine investigation to be a security guard on campus,” Hodges said.

In June, Jamie tweeted about her experience when she learned the results of the investigation. She chose not to contest the findings because the experience “ruined” her first two years of college.

“I accepted the fact that he was found not responsible for the above allegations, however, I know, he knows, and God knows what he did to me and what he will probably do to someone else,” Jamie wrote in a tweet, which she later deleted. “I did not contest the findings because this experience has ruined my first two years of college. … I’ve wanted to share my experience for almost a year now and I finally feel that I can.”

Executive Editor Georgia Geen contributed to this report.

10 Comments

    • The purpose of my friend coming forward was to help others know that it would be in their best interest to pursue a police investigation as well as a title nine investigation. The title nine office does not follow the university’s own statements about what consent is and what matters in an investigation. The not anymore training stated several times that it does not matter what clothing someone wears, active consent is needed yet the title nine office asked my friend for a detailed description of the underwear she was wearing. They say that the absence of a no is not a yes yet in her report they mention that she did not say no so she gave consent. This is not about changing the outcome of her investigation, it’s to keep other people in the community who may be assaulted aware of how effective and ineffective their options are. The title nine process seemed like a way to tire my friend into submission so that after she went through a year long invasive interview process and her accuser was found not guilty she would no longer have the energy to file a police report. You don’t know her John, I do. She bled for days after this encounter and I begged her to go see a doctor but she couldn’t because she was so devastated. Hope you think twice the next time you comment something so ignorant.

    • The only “obvious” conclusion that can be drawn from this article is that the complainant encountered an extremely confusing and retraumatizing process that the university’s spokesman’s neatly packaged quote does not adequately account for. I support this young woman and am proud of her for raising these concerns and sharing her experiences with the VCU community. It is not easy to do–not nearly as easy as leaving a cheap, thoughtless comment such as yours.

      To Jamie, if you see this: I believe you. Five years ago I went through something very similar at VCU. My situation led to a federal investigation that required VCU to overhaul its Title IX processes and policies, so I am disheartened and angry to see that despite those changes, members of the VCU community continue to encounter the same failures that I did. I know how exhausting it is to go through these processes that are designed to wear you down and require a constant level of vulnerability that most people would struggle to sustain. I’m so sorry that you encountered a process that was less than transparent, and I’m even sorrier that you were subjected to the kinds of questions that are shamefully archaic and unproductive. I admire your strength and courage–I know that it came at a cost to you. For me, the most difficult part was getting myself back together once the investigation was over–because it had consumed so much of my life for so long. I figured out over time, and I believe you will too. Thank you for speaking up. By doing so, you’ve given your peers valuable information that will help them make important decisions if they ever find themselves or someone they care about in a similar situation. I hope you’re surrounded by friends as awesome as Kaleigh and that your remaining years of college are much better than the first two. You deserve no less. Sending you solidarity and keeping you in my thoughts.

  1. Difficult to comment since facts and evidence missing in this article. That being said, is your friend (the claimant) aware that sharing the file report with the Commonwealth Times is a FERPA privacy violation?

    • From my understanding of reading about FERPA it seems as though only institutions may be considered to violate FERPA, with the agents of those violations being faculty and staff within the institution. However, even if students can receive FERPA violations my friend did not violate FERPA because her case file did not name the person she accused nor did it give any iditifiable information about him which is necessary for a FERPA violation to have occurred. He was only referred to as “respondent” through the report and only her name was listed because it is her file given to her by th office and under FERPA she is allowed to release documents that identify herself.

  2. Did EAS provide accommodations to your friend? In class schedule or efforts to minimize contact with Respondent? Did they assign an “external investigator” to the case or did EAS investigate? She is fortunate to have you to help navigate and provide support through this process. I hope she can find the strength to speak out about her situation.

    • She says that EAS did the investigation and she did not have any classes with him because they have very different majors. EAS did offer her class accomadations if she wanted them. She had contact and knew the names of the investigators but is unaware of who the third party is that decided whether she had been assaulted or not. We are not sure what criteria a person has to meet to qualify as being the person that decides. EAS issued a no contact order between the two of them that said they could not communicate to eachother but there were no restrictions on how close they could get to each other like a restraining order. Thank you for your concern Angela I think the article has helped her to find more peace with this situation. She would just like the university to only advertise a title nine investigation as something to supplement a police investigation rather than a substitute for a police investigation. We still have unanswered questions about the process like if the title nine office finds someone guilty of assault do they automatically turn their investigation over to police? If they do why should someone who believes they have been assaulted seek out only a title nine investigation, why should title nine be akin to some proofreading process for sexual assaults. If they do not automatically turn the information over to police, how does that comply with being a mandatory reporter and why are they not compelled to turn this information over to police about a sexual assault, they would never privately investigate theft. I know this goes beyond the scope of what you asked but I just wanted to further clarify my friends purpose of doing this article: to find answers about the title nine process and explain her experience with the process.

      • Kaleigh, I hope you and “Jamie” are doing well. I thought of you all over the weekend while reading about similar cases. Stay strong and courageous.

  3. Thank you for the comprehensive response. I am in total agreement with your assessment; especially with the way EAS advertises their policy, promotes training but clearly violates such policy, as in your friend’s investigation. I am no Title IX expert; however, it is my understanding that EAS, in addition to conducting an investigation will simultaneously contact local law enforcement, Richmond Police Department AND VCU’s police department. Hence, my questions regarding “accommodations”. It is very odd that she was not directed to contact law enforcement and in many cases, “they” are responsible for contacting law enforcement on behalf of the Complainant. This is very concerning. I agree with you wholeheartedly, that cases of this nature should be under the authority of law enforcement because it removes the bias and shoddy investigative tactics. I also wondered who the “third party” was in the article. It is also mind blowing that your friend produced evidence AND six witnesses to corroborate her allegations. I am really perplexed as to the findings. She should consider filing a complaint with the Office of Civil Rights. I hope she can turn this pain into power and advocate for those who are similar situations.

  4. This article doesn’t give a timeline of how things occurred. Why didn’t this girl go to the police immediately instead of the University? Violence like this is a police matter! I cannot fathom reporting something like this to a school official but not to a police officer. Seems very strange. I wouldn’t want the police grading my term papers and I wouldn’t want the school evaluating my sexual assault.

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