Should Colleges Throw Out Old Rape Evidence?
A federal lawsuit against Oregon State University brings up tricky questions about how much responsibility colleges should bear for decades-old sexual assault allegations.
Did Oregon State University foster a “sexually violent culture” at the school in the ’90s, where predatory athletes brutally assaulted female students with impunity? That’s what a former student is claiming in a blockbuster federal lawsuit that raises tangled questions about how colleges should be held responsible for accusations of sexual assault years after the alleged crime.
The $7.5 million suit, filed this week against OSU and ex-football coach Mike Riley by former student Kristin Samuelson, deals with an alleged assault in 1999, during Samuelson’s freshman year. Samuelson claims she was drugged and raped at an off-campus apartment and that she reported the alleged attack to OSU’s sexual assault counselor—only to be blamed, shamed, and discouraged from pursuing disciplinary action. She’d graduated high school with a high SAT score and 3.5 GPA, but the trauma of the alleged assault, as well as the school’s supposedly negative response, left her “too distraught, isolated, anxious, and depressed to attend class and focus on her studies,” according to the complaint. She failed out of school at the end of her freshman year.
Samuelson’s complaint frequently references the case of Brenda Tracy, who was allegedly drugged and gang-raped in 1998 by four men—two of whom, Calvin Carlyle and Jason Dandridge, played football at OSU—at the same off-campus apartment where Samuelson says she was raped by a different man, who was not a student at OSU.
In December 2014, The Oregonian revisited Tracy’s case in a lengthy, shocking feature.
Tracy, then 24, was not a student at OSU, but she reported the incident to police: She said she was “sodomized and robbed over a seven-hour period...she begged them to stop...she remembered vomiting, but she said the men just turned around and continued to assault her,” according to The Oregonian. The nurse who administered a rape kit would later tell the paper it was “among the most disturbing sex-assault exams I’ve ever administered.”
Tracy also says she reported the alleged gang rape to an OSU sexual assault counselor, who obtained a copy of the police report and submitted it to the university’s student conduct department.
Prosecutors were moving forward with the case when Tracy suffered an emotional breakdown and declined to cooperate further. No charges were filed. Carlyle and Dandridge were suspended from one football game and put on probation. They were also forced to perform community service and enroll in an “educational program.”
Years later, when Tracy wanted to revisit the case, she found she no longer had one. Much of the physical evidence from the alleged crime scene was thrown out before Oregon’s six-year statute of limitations expired, according to The Oregonian, at which point the rape kit was destroyed too.
Samuelson has built her own case primarily around Tracy’s experience, arguing that the school’s failure to expel Tracy’s assailants precipitated her own assault by a different man. The complaint cites a series of questionable admissions by former OSU administrators to The Oregonian— quoting Lois Krzesewski, then-adviser to OSU President Paul Risser on the Commission for the Status of Women on Campus, who told the paper that school officials told her “not to discuss the particulars of Brenda Tracy’s case.” Likewise Larry Roper, then-vice provost for student affairs, told The Oregonian that “sex assaults were murky” and “we had no idea back then how to conduct an investigation.” Samuelson’s complaint also claims that OSU had a “budget shortfall” at the time and that the rape investigation further jeopardized the school’s finances.
For OSU’s part, when Samuelson first contacted the school last spring, “our reaction then, and our reaction today, is really one of sadness,” Steve Clark, vice president of OSU Relations, told The Daily Beast—adding that the school did not doubt her integrity or devalue or “experience as a survivor,” but contested the suit’s claims that OSU had explicitly paved the way for Samuelson’s assault.
Clark declined to comment on most of the claims in Samuelson’s complaint, but dismissed the accusation that the university had covered up reports of sexual violence when law enforcement officials were investigating Tracy’s alleged assailants.
“The Tracy matter was widely reported in the media in 1998, so the claim that the University attempted to create an environment of secrecy couldn’t be further from the truth,” Clark said. “We cannot be held responsible for an assault that occurred a year later by a non-student relative.”
He did, however, acknowledge that disciplinary action against Tracy’s alleged assailants was “woefully insignificant.”
He also stressed that the school has ramped up its sexual assault education and prevention efforts over the past five years. Last summer, OSU joined the White House’s “It’s On Us” campaign to end campus sexual assault.
“We require all freshmen and all student athletes to take courses in sexual violence prevention and drug and alcohol use, and we are also working with Brenda Tracy as a consultant to help advise the university’s administrators,” Clark said.
Even as we talk frequently and contentiously about how colleges deal with rape cases today, there’s been very little national conversation about how colleges should deal with old rape cases when a former student comes forward.
America’s Title IX laws haven’t changed since 1997, when they were revised to include rape or sexual assault under the umbrella of gender discrimination and sexual harassment protection. Still, there is no question that attitudes about sexual assaults on campuses have changed since the 1990s.
“Nobody thought rape happened on college campuses back then,” says Colby Bruno, senior legal counsel at the Victim Rights Law Center.
Bruno says it wasn’t uncommon for a school counselor in the late ’90s to warn sexual assault victims that pursuing disciplinary or legal action would likely be very trying and traumatizing.
Perhaps because of such discrepancies, Bruno supports extending statutes of limitations on rapes, though they are based on a longstanding legal principle to ensure those accused of crimes receive a fair trial.
“Someone should always be able to invoke their right to charge someone who committed a crime against them,” she says. “It’s quite common that a survivor will drop out of a case in the middle of the prosecution. And it’s the prosecution’s job to make the survivor aware that they have a time limit, even though they’re not in a space to hear or acknowledge that.”
Tracy’s lawyer has said that she would still be able to prosecute her case today were it not for Oregon’s restrictive statute of limitations. (Tracy has fought to extend Oregon’s time frame for rape cases: The House Judiciary Committee recently passed legislation doubling the state’s six-year statute of limitations; the Senate has not yet voted on the bill).
Joshua Engel, a civil rights lawyer in Ohio and former prosecutor in Massachusetts, also attributes the shift within school administrations in recent years to “a changing of cultural attitudes.” He argues that counselors and administrators are indeed more receptive to victims, but that administrators are ill-equipped to conduct a proper investigation into victim allegations.
“Most of these people don’t have law enforcement experience, they don’t have prosecutorial experience, and they don’t really know how to get the truth or lack of truth in sexual assault cases,” Engel said.
“While I have run into a couple of Title IX investigators who had an agenda, my experience with them is mostly that they are well-meaning people who just don’t have the tools to get to the heart of these issues.”
Meanwhile, Andrew Miltinberg, an attorney in Manhattan, agrees that women have suffered from an age-old “boys will be boys” attitude both on and off campus—but he says that in recent years, the pendulum has swung in the other direction: School policies are now biased against the accused.
“In the cases I’ve seen, Title IX investigators and counselors are often former sex crime prosecutors or former rape victims’ advocates, and many are acting as quasi-advocates with a very definite experiential context when they are supposed to be making objective calls,” said Miltenberg, who has represented students accused of sexual assault.
Miltenberg would like to see a more balanced cast of characters adjudicating these cases, and less politicizing on both sides of the campus sexual assault debate.
“Everyone is co-opting pieces of this debate for themselves,” he said. “Somewhere in the middle lies the answer to how society should deal with these cases.”