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In handling rape, high schools are worse than colleges

When a girl reported a rape on a school trip, administrators didn’€™t seem to know the law; experts say that’s common

Editor's note: The alleged victim in this case did not participate in this report. Because naming her parents would identify her, her first name and her family name are pseudonyms.

Emily Miller was on a three-day nature field trip with Seattle’s Garfield High School in November 2012 when her parents got a call that their 15-year-old daughter had been raped and was headed to a hospital.

Teachers, Garfield’s principal, district officials, a rape advocate, the National Parks Service and the FBI, which has jurisdiction over the national park, were all alerted, and details tumbled out quickly: The alleged perpetrator was a classmate, who admitted that he had had anal sex with her. He acknowledged to law enforcement that she told him to stop several times but said he persuaded her to “roll with it.” 

Medical records reported mild vaginal trauma, semen streaked on her pubic hair and in her anus and a diagnosis of rape trauma syndrome. Emily vomited, possibly because of a nauseating megadose of prophylactic antibiotics. Her rape advocate at the hospital, who had 10 years of experience working with rape victims, said she “presented as one who had experienced a rape.”

Emily initially claimed a stranger entered her cabin and raped her in the night. In fact, she had sneaked out of her cabin after lights out, like many of the kids on the trip, and had been talking to the alleged perpetrator in his bed before the incident. At the hospital she explained that she didn’t want to get him, a friend, in trouble, records note. She said she was afraid he would go to jail and wanted him to get help.

When asked if Emily said anything during the incident, the boy disclosed to the school district investigator, “I did not pay attention to her that much.”

‘In the dark ages’

High school sexual assault
A Facebook post by Emily’s alleged assailant — one of several sexually offensive posts he made on Facebook.

Emily didn’t need to worry about sending her friend to jail. Emails show that the district attorney concluded that a sexual assault may have taken place, but it wasn’t a case that could be successfully prosecuted. This is the fate of most rapes reported to the police, and it’s especially true when there are no witnesses or significant injuries.

In the months that followed, the Millers frantically contacted the school, trying to figure out how the alleged rape could have happened and how to get Emily — soon diagnosed with post-traumatic stress disorder — back on track in school. But school district officials responded to their questions with confusing or contradictory information, if they responded at all.

As the months rolled by, the alleged perpetrator continued attending Garfield as usual, while claiming on Facebook that he had been framed. With rumors swirling, Emily never returned to Garfield. Instead, the Millers say their daughter’s mental health deteriorated, landing her in a residential treatment facility and pushing them more than $50,000 in debt.

The Millers had no idea about Title IX, which prohibits educational institutions receiving federal funding — high schools included — from sex discrimination, with particular prescriptions for addressing sexual assault. An “America Tonight” analysis of extensive school records and email exchanges about the case suggest administrators at Seattle Public Schools didn’t either. 

This school district isn’t unique. While the flawed response of many colleges to sexual assault has triggered fiery debate and White House attention, experts say high schools are far worse.

“High schools are basically where colleges were like 15 years ago — in the Dark Ages,” said Colby Bruno, senior legal counsel at the Victim Rights Law Center.

Bruno, who represents sexual assault victims, said 9 out of 10 high schools that she has contacted over sexual violence cases don’t realize that Title IX applies to them.

If the provisions of Title IX had been followed, Emily’s mother believes, her daughter’s education could have been salvaged and her mental health protected. In May the family filed a Title IX complaint with the federal government, asking it to investigate. 

Last month the Department of Education’s Office of Civil Rights agreed, making Seattle Public Schools, which covers all of Seattle, one of 23 elementary and secondary school districts currently under federal investigation for Title IX sexual violence issues. The number of colleges under investigation recently reached 64.

And the stakes for sexual assault in high school can be even higher than in college. The victims are younger, and the impact and recovery years are more formative. It also isn’t as easy to let a student take time off or cut them loose. College is voluntary, but for children under 18, getting an education is a requirement and a right.

The investigation

Garfield High School
Garfield’s celebrated music program graduated Jimi Hendrix and Quincy Jones. Emily was an accomplished musician but lost much of her interest in music since the alleged assault, her parents said.
Flickr/Matthew Rutledge

“I expected the school to say, ‘Something went terribly wrong, and we’re going to get to the bottom of it,’” Emily’s father said. “But that never happened.”

Under Title IX, a school must conduct a prompt investigation into any report of sexual assault and determine whether it is “more likely than not” that it happened  — a completely separate process from a criminal investigation, with a much lower burden of proof. In its policy, Seattle Public Schools says it will respond to reports within 30 days. 

But the district didn’t begin to investigate the incident with Emily until six months after the alleged incident and only at the parents’ insistence, records and emails show. It took 14 months for the district to conclude that there was “insufficient evidence” that she was a “victim of harassment.” 

Title IX also requires the investigation to be “equitable.” But the Millers said it was so deeply skewed that the district was essentially an advocate for the boy.

A June 2013 draft of the district’s report (a final one was never prepared) didn’t include Emily’s side of the story at all. By that point, she was in residential treatment and unavailable for an interview, but the district gave the Millers until December to submit any material they wanted. In October they sent hundreds of pages of documents to prove their case, including Emily’s handwritten description of the incident from her therapy journal, her typed description, her initial interview with National Park Service officials and her relevant medical records.

District documents show that in March 2014 the school board discounted the documents on appeal as untrustworthy (there “may be different information” in the rest of the girl’s therapy journal, the school board said) or simply didn’t acknowledge them and accused the Millers of hampering the investigation by taking so long.

But the district gave great weight to the story of an alleged witness, the boy’s cabinmate and friend. He said he heard Emily moaning. The alleged assailant admitted to investigators on the record that his friend told him he had his back.

In response, Emily wrote, “I was never moaning — if I was, then it was in pain, and I was crying as well.”

They’re afraid to think about consensual sex happening at the high school level. And I think they’re definitely afraid to think about sexual violence happening.

Ali Safran

Advocate against sexual violence

The district seized on Emily’s initial claim that a stranger attacked her in her bed. Strikingly, the district didn’t note the contradictions in the alleged assailant’s story —that he didn’t ejaculate, though semen was found; that he didn’t have vaginal sex with her, when there was mild vaginal trauma; and that in his two accounts, to law enforcement and then months later to the district investigator, the anal sex went from an “accident” that Emily lay there and “took” to something intentional.

High school sexual assault
A selfie Emily posted on Tumblr in December 2012. (The final sentences are redacted because they are unrelated.)
Screen shot courtesy of the Miller Family

For high schools, sexual assault is an uncomfortable issue to tackle. College administrators can be squeamish thinking of their students as sexual predators, and that’s doubly true when the student is 15 years old, experts say.

“They’re afraid to think about consensual sex happening at the high school level,” said Ali Safran, who was sexually assaulted in high school and now develops sexual assault curricula for high schools. “And I think they’re definitely afraid to think about sexual violence happening.” 

In defending how it handled the Millers’ case, district spokeswoman Teresa Wippel told “America Tonight” via email, “This incident occurred in November 2012, and law enforcement authorities were immediately called. They investigated but did not file charges. Parents asked [Seattle Public Schools] to investigate, and we did. Based on the investigator’'s report, superintendent concluded the evidence did not support an assault. Parents appealed to school board, which affirmed superintendent’s decision.”

She couldn’t offer any more details because it is a “pending legal matter and it involves students.”

To prompt a school district investigation, parents of an alleged rape victim shouldn’t have to ask. The Millers learned that only in April 2013, after they elevated their complaint to the state level and heard about their Title IX rights for the first time. When they alerted district officials to these legal requirements, the officials appeared to backtrack, emails show, claiming an investigation was initiated before agreeing to undertake one.

The district’s response riled school board vice president Betty Patu, who emailed the superintendent in June 2013 accusing officials of “sweeping the sexual assault under the rug … It seems like they are just making up excuses,” she wrote. “Is this a joke or what?”

It wasn’t as if Emily’s case was the first alleged sexual offense to cross Seattle Public Schools administrators’ desks. In a district of about 51,000 students, the safety and security department recorded that 47 were victims of a sexual offense in the 2013-14 school year. And while 1 in 5 female students experiences attempted or completed sexual assault at college, studies show, almost as many are victimized before they step foot on campus.

It’s unclear whether Seattle Public Schools conducted an investigation into any of the reported incidents. The district’s public records officer, Julie Barbello, said she could not locate those records. Under a December 2011 policy, the superintendent is supposed to draw up an annual report reviewing the district’s sexual harassment procedures. According to Barbello, there hasn’t been a single report so far.

"Nobody even knows the rules, because nobody’s read the rules, because nobody's felt a need to enforce the rules, so why bother?" said Charlie Mas, a community activist, whose 14 years of relentless muckraking in the school district landed him on a Seattle magazine list of the city's "Most Influential." 

It's standard, he said, for the district to have piles of policies that gather dust, with no consequence for the violators. But he said in sexual assault cases it amounted to "malign neglect."

"There’s so little they had to lift," he said, "and the damage is so severe." 

The retaliation

Emily never went back to Garfield, but the alleged perpetrator returned after a 10-day "emergency exclusion" on the basis of a possible security threat he posed to other students. It wasn’t his first. Two years before, when he was in middle school, he was emergency excluded for having sex with a girl behind bushes on school property during lunch, according to school records. 

At school the boy spread the story that he was framed, posting on Facebook that he had been “greezed.” It turned school into a hostile environment that made it impossible for Emily to return, the Millers said, and triggered their daughter’s full-blown PTSD.

In this conversation, below, that Emily had with a friend over Facebook, she explains how she found out about the story circulating at Garfield. Her friend mentions that he heard the alleged rapist, a popular student-athlete, talking about the incident at school. (The ellipsis marks an edit where the chat was condensed for brevity.)

In its policy, the district states that retaliation against someone who makes a sexual harassment complaint “will result in appropriate discipline” and that it will “take reasonable actions” to prevent it from happening. The Millers said the district did nothing to respond to the insults and painful gossip. It offered Emily a transfer to another school, but as her PTSD grew increasingly disabling, they said they were never given any clear options about how to make her re-entry work.

“We were not only trying to care for our shell-shocked daughter — we also had to pick up the pieces of her education and figure out what happens next,” Emily’s father said. 

Seattle schools’ Title IX coordinator should have been the parents’ point of contact, overseeing the whole process. But the Millers didn’t know the district had such an employee until months after the incident, and even then, he wouldn't communicate, defering instead to the district’s legal department, where most of the Millers' messages ended up anyway. That's a potential conflict of interest, since the district’s lawyers could end up defending the institution if the family sued. 

The Millers eventually sent their daughter to a residential treatment facility in Utah, where she lived for five months until the family ran out of money. Emily’s mother believes her daughter could have gone back to school right away with her head held high before the rumors started if they had known that the alleged perpetrator wasn’t there. 

In a July 2013 email, the district’s general counsel said the 10-day suspension “permitted your daughter to immediately return to school if she chose.” But it didn’t permit her, the Millers said, because they were never told about it. In fact, the principal refused to tell them if the boy had been sanctioned.

“The whole situation was a disaster,” Ms. Miller said. “The whole [plan for her education] went down the tubes.”

‘Toothless tiger’

For Title IX violations, the only penalty the Office of Civil Rights has in its arsenal is revoking federal funding — something it has never done to any educational institution in the history of the law. But at the college level, damaging publicity has worked as a powerful weapon. That sword isn’t so sharp at public high schools, where there isn’t the same competition for students. 

Steven Kelly, a victims’ rights lawyer who’s bringing a private Title IX lawsuit against Prince George’s County, Maryland, on behalf of a girl with developmental disabilities who was allegedly sexually assaulted, called the Office of Civil Rights “a toothless tiger.” 

“[The school district] couldn’t care less,” he said. “They’re not really going to revoke their funding. They’re not going to get anyone fired.” 

But high schools can be painted with a big red target of liability: an accusation of negligence that may have allowed the rape. At college, little supervision is expected beyond the casual monitoring of a residential adviser or dean. But many parents assume elementary, middle and high schools serve in loco parentis for their children while at school. 

Through their research and records requests, the Millers discovered that the students on the field trip had been freely playing outside and in one another’s cabins for hours after lights out on both nights while their chaperones slept. The chaperones admitted later to a district investigator that they hadn’t even read the district’s field trip guidelines, which recommend checking on students until they’re asleep.

The Millers believe the school was negligent in the way it planned and chaperoned the field trip, especially since their daughter’s alleged rapist had a history of sexual misconduct. Via email, the district’s general counsel was insistent that “there is no evidence the chaperones did not perform their duties.” 

“I think they were sort of caught with their pants down and were struggling with how to respond,” Emily’s father said. “Their immediate response was, ‘We’re not going to admit that anything went wrong, because if we do, we open ourselves up to some sort of lawsuit.’”  

By the time the district gave its decision on the case, the family had already figured their daughter shouldn’t return to Seattle Public Schools and moved to Tucson, Arizona. Emily, a former honors student, still suffers mental health issues, her parents said.

“Our lives were devastated,” said her mother. “The whole thing is ridiculous, and it’s ridiculous the boy is walking around like this.”

He did not respond to a request for an interview.

The Millers hope their complaint and awareness campaign will educate other high schools, families and students about sexual violence and their Title IX rights, which they believe could lead to fewer assaults at colleges too. Most rapists, after all, are repeat offenders. And one of the greatest predictors that a young woman will be sexual assaulted at college is whether she was sexually assaulted as a girl.

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Where to turn for help

If you have been the victim of a sexual assault or are a friend of a victim, live support is available at 800-565-HOPE (4673) or online here.

For more on campus safety and sexual assault prevention and help, visit our resources page.

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