This story is the second in a two-part series examining rape on campus
Jessica Smithers, a GW senior, is still entrenched in civil and criminal litigation resulting from her rape in an off-campus Boston University Sigma Phi Epsilon fraternity house in October 1995. For the past year, she has flown back to Boston at least once a month to meet with police investigators and lawyers hammering out the details of her civil suit against BU, several of its officials and the fraternity pending since September 1998. Several months later, she pressed criminal charges against the BU student who the school found definitely responsible for the rape, after he filed a counter-suit against her for defamation of character.
Smithers, who transferred to GW from BU in the fall of 1997, is suing BU for failing to adequately protect her. She contends BU is partially responsible for the assault because the school inadequately polices its fraternities, two of which served the underage woman alcohol that night. BU officials have said they are not liable because Smithers, then four weeks into her freshman year, was engaging in risky behavior.
Only 16 percent of all rapes are ever reported to the police, according to the National Center for Victims of Crime, a non-profit advocacy center based in Arlington, Va. After three years she calls emotionally draining, Smithers says she understands why more women do not come forward against their rapists.
When you decide to go through with any sort of judicial action, you have to revisit what happened to you again, she says. It’s harder than just trying to let it go.
Smithers says the process of litigating the rape has been long and arduous. One of the most difficult moments came last spring, she says, when she was deposed while her alleged attacker sat several feet away from her. Recently, Boston police asked Smithers to return to the fraternity house where she was raped and retrace the night’s events in an effort to gather evidence for the prosecution.
The house looked just the same, she says. It was surreal. The memories of the night came flooding back, and I had to describe them in graphic detail.
The fraternity in whose house she was raped has already settled her claim. Smithers says she hopes the case against BU will be settled or moved to trial by the summer.
So far her greatest victory has been academic sanctions against the man through BU’s student judicial system. The process there, which began soon after the attack, included a hearing of Smithers and the man before a judicial officer. With lawyers present for both students, Smithers answered questions posed by her alleged rapist. The experience was both terrifying and empowering, she says.
Because he was the one asking questions, I felt a loss of control all over again, she says. But I was happy I was able to answer him and stand up to him. In the end, I was relieved that everyone saw his story for what it was.
After being found responsible for the rape, the man was indefinitely suspended, though Smithers says the fact that the man can reapply for enrollment at the school frustrates her.
I can’t think of any offense that more merits expulsion from school, she says. BU has a responsibility to keep dangerous people off campus and away from its students.
The GW system
The student judicial system works similarly at GW. After an incident report of rape is officially filed with University Police, the case is investigated by Student Judicial Services. Though sanctions are never guaranteed, it is one way survivors of alleged assaults can try to find justice.
The University’s judicial system uses a lower burden of proof to determine wrongdoing than normal criminal proceedings. For all cases, including rape and sexual assault, the University imposes sanctions if there is a preponderance of evidence, meaning that the chance a violation occurred is more likely than not, says David Pine, manager of SJS.
The recommended minimum sanction for a rape or sexual assault violation is a one-year suspension and eviction from University housing, according to the Code of Student Conduct.
The first step in any University judicial investigation is evidence gathering, Pine says. Witnesses to the alleged violation are asked to give testimony to judicial officers, who summarize the information and add it to the case’s file. The statements are then reviewed at the University’s judicial proceeding. Based on the preference of the student being investigated, the proceeding can take the form of a disciplinary conference overseen by one administrator or a hearing board adjudicated by a panel of three to five student judges and a faculty or staff representative.
The purpose of the hearing board is to discover what happened on a certain day, in a certain place, he says. SJS operates independent of external relevant legal codes, Pine says. Additionally, a student’s investigation for violation of a University policy is not dependent on outside legal action pending against them for the same alleged crime. He describes the hearing as a non-litigious, non-adversarial, fact-finding proceeding.
The Code of Conduct describes rape, a prohibited act, as engaging in sexual intercourse with any person without that person’s consent. `Without consent’ means inflicted through the use force or the threat of force, or on a person who has refused consent, who is unconscious or who is otherwise without capacity to consent.
This definition is not a legal code, Pine says, and for a student to be found in violation of the policy prohibiting rape, the incident does not have to rise to the legal standard, Pine says.
Though the charged student is free to ask most questions of witnesses, the presiding officer ultimately determines which questions are relevant to the case, Pine says.
In cases of rape or sexual assault, the alleged victim becomes a witness for the University’s case, Pine says. Similar to the other witnesses who are called before the hearing board to testify again, the alleged survivor’s role is to answer questions from hearing board members and the accused relevant to the victim’s testimony. Alleged survivors are not on trial nor are they plaintiffs, as may be the case in a civil trial, Pine says.
Student hearing board members receive specialized training specific to their adjudication of rape and sexual assault hearings, Pine says. Alleged victims are also the only witnesses allowed to bring a support person with them into the proceeding.
We don’t want any one to feel intimidated, he says. We are just trying to get the facts straight as best we can.