Flickr/Caleb Zahnd

KU policy: Rape is less bad if victim had sex with rapist before

In disciplining a student for rape, the University of Kansas considered prior sex with the victim a mitigating factor

Editor’s note: The alleged victim in this case requested anonymity, so she has been given a pseudonym. Because he has not been formally charged, the alleged assailant is given a pseudonym as well.

In January, the University of Kansas concluded that James had raped Rebecca, a fellow freshman, and punished him with probation, a ban from student housing and alcohol counseling.

The sanction could have been heavier, but there was a mitigating factor that made his violation less serious, according to official university documents: A few weeks before James allegedly raped Rebecca, they had sex.

While Rebecca was going through the college disciplinary process, her mother watched an America Tonight series about campus sex crimes and the students taking on their universities over the issue. Rebecca and her mother then filed a complaint with the federal Department of Education’s Office of Civil Rights, arguing that the university’s lenient sanctions violated the Title IX gender equality law, which has specific proscriptions for handling sexual assault.

In July, the federal government opened an investigation into KU, making it one of 76 colleges and universities facing a federal probe over how they address sexual violence.

But Rebecca doesn’t just believe the sanctions her alleged rapist received were unlawfully light. She says the sex she previously had with James – the sex that was partially responsible for lightening his punishment – also wasn’t consensual.

The mornings after

KU's main campus in Lawrence, Kansas
Flickr/Tristan Bowersox

From the start of their freshman year on the Lawrence campus, Rebecca and James were fast friends. And a few weeks into school, Rebecca said she contacted James after a nasty fight with her boyfriend. She said he invited her to his dorm room and offered her tequila. He was hung over at the time, so he maybe had one beer that night, Rebecca said, but he mixed her about three Solo cups of potent margaritas, and she remembers only bits and pieces after that.

Months later, Rebecca came to believe that she had been so drunk at the time that her experience was technically rape. But right after it happened, she was just furious with herself, ashamed that she’d cheated on her boyfriend. She says she told James the next day to never mention it. It would never happen again.

“It didn’t happen,” Rebecca, now 20, said she told James. “It was one of the times I was really straightforward with him.”

A few weeks later, on Oct. 18, 2013, the two of them went to a fraternity party together. Rebecca said the next morning she woke up in James’ dorm room in her underwear and a sweatshirt, without a shred of memory of leaving the party. She said she slipped out of his room without waking him up, and as the day rolled on, her mental fog began to clear. It was especially confusing, she said, because someone had dressed her.

“I don’t think I ever said yes to that,” Rebecca said she thought. “And then I started thinking, ‘I really didn’t say yes to that.’”

Two days later, after talking to her boyfriend, best friend and parents, Rebecca called campus police, who immediately took James in for questioning. The department told America Tonight that state law prohibits release of the incident report. But Chuck Schimmel, Rebecca’s attorney, said he was able to review it, including the notes from James’ interview.

America Tonight published an exposé on the drinking and hook-up culture at KU, and Katherine Gwynn, a senior, said that it’s become apparent that there is a gag order from high up in the administration against any mention of the story...

“He denied a struggle,” Schimmel said. “But he also claimed she said, ‘I don’t know,’ and then she said ‘no’ after he had already penetrated her, and he continued for about 15 minutes until he climaxed.”

The district attorney didn’t pursue charges, but kept the case open, as the university began its own investigation. In December, the university’s Institutional Opportunity & Access office concluded that James had nonconsensual sex with Rebecca.

University documents obtained by America Tonight state that James ignored her statements like “I can’t do this,” “no” and “stop.” The university also decided that James should have been aware of how incapacitated Rebecca was since she needed help walking home, was unable to pick up her contact lenses when she dropped them and “[didn’t make] any sense when she talked” (see below).


James didn’t contest the allegations.

But according to IOA, there were mitigating factors to the case, for example James’ own intoxication, his clean disciplinary record and the fact that they’d had sex before. IOA recommended that James be banned from campus housing, put on probation, required to complete a community service program and write a reflection paper.

“I don’t understand why [the sex before] would be relevant to anything, let alone mitigating it,” said Brett Sokolow, the president of the National Center for Higher Education Risk Management, who’s advised colleges on how to handle sexual assault cases for more than 15 years. “Look at marital rape. No matter how many times they’ve had consensual sex, the one time he rapes her it’s still rape. Why would you treat this any differently?”


Sokolow said there was only one clear way that James and Rebecca’s one-time previous sexual experience could be relevant to the case: as a clue to a pattern.

“He’s getting her drunk to take advantage of her,” he said. “This is an aggravating factor not a mitigating factor.”

KU did not respond to questions about its sexual assault policies, despite repeated requests. Last fall, America Tonight published an exposé on the drinking and hook-up culture at the university, and Katherine Gwynn, president of the KU student group Students United for Reproductive and Gender Equity, said that it’s become apparent that there is a gag order from high up in the administration against any mention of the story in official settings, including the school’s upcoming sexual assault awareness week.

After gathering this from multiple administration officials, Gwynn said she was “shocked” by what amounted to an “act of censorship.”

But Jane McQueeny, KU’s Title IX coordinator and the executive director of IOA, did speak to The Huffington Post. "When we make our recommendations, we look at what is going to help the respondent understand what happened and his responsibility for what happened,” she said. “Do they have some idea [of] what they have done and how it's affected the victim?"

Tammara Durham, KU’s vice provost for student affairs, told the Lawrence Journal-World in a statement that the university's policy is to pursue “those sanctions a survivor finds most appropriate,” even offering a hearing if the alleged victim wants a suspension or expulsion that school officials weren’t originally considering.

Rebecca and her mother were consulted at the start of the disciplinary process and say they insisted on James serving community service at a minimum, later requesting suspension or expulsion. All of these were ignored and they say their desire for a hearing was summarily denied.

“If she’s going to lie like that, someone has to call her out on it,” Rebecca said Thursday afternoon of Durham's claims.

The first time

In January, the director of KU's Student Conduct and Community Standards, Nick Kehrwald, decided to reduce James’ sanctions from what IOA recommended, scrapping community service and the reflection paper. Rebecca appealed. And as she waited with her mother for the final decision of the university’s judicial board – the end-stop of the justice process at KU – they got onto the topic of the first time she and James had sex.

Rebecca admitted to her mother that alcohol had been involved – a lot of it. She admitted that she hadn’t wanted it to happen. Rebecca said she didn’t mention all of that before, because she hadn’t physically fought him off.

In April, the judicial board dismissed the appeal, with KU’s Associate General Counsel Rachel E. Wolf concluding that community service would “strictly be punitive” – not educational – so it would be inappropriate in this case. From the perspective of the university, James made an alcohol-based mistake with someone he’d had sex with before, and education was the only suitable response. From Rebecca's perspective, James was one of the six in 10 college rapists who rape again.

“I do think he purposefully tried to get me drunk,” she said. “He knew obviously from the previous experience that if I was drunk, then I would let stuff happen.”

Also in April, Rebecca formally reported the first incident as a rape to the university. KU still hasn’t completed its investigation. But last month, Douglas County District Attorney Charles Branson learned about the first alleged assault and has indicated a renewed attention to Rebecca’s case and the possibility of criminal charges.

“This matter remains under investigation and no final decision has been made,” Branson said in a statement over email.

Although Rebecca believes she was raped twice, she doesn’t know if James thought he was raping her at the time. A letter by James’ attorney Michael J. Fischer, submitted during the appeal, states that James and Rebecca had a “typical ‘college freshmen romantic relationship’” derailed by “alcohol and confusion.”

The vast majority of college rapes are alcohol-based, where the victim is too drunk to consent. And many college rape victims don’t identify their experience as rape. The fact that many college rapists don’t identify it as rape either, experts say, is what can often disincline juries to convict and make school conduct boards so squeamish to expel. The kid simply didn’t know better.

For Schimmel, Rebecca’s attorney, that’s what makes a case like this so frustrating and so chilling.

“The fact that he didn’t think what he had done was wrong or criminal,” he said, “shows you that there’s a problem.”  

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