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Report shows systemic failure in sex crime response at Baylor

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Details released Thursday from the explosive Pepper Hamilton report on Baylor University’s handling of sexual assault cases are all the more damning for blaming not a few individuals but an entire institution for failing the victims.

The athletic department failed them when officials “affirmatively chose not to report sexual violence” to appropriate school and police officials, shielding athletes from inquiry while discrediting alleged victims, according to a summary of the report that Baylor regents released.

The school’s judicial affairs staff entrusted with investigating victims’ reports failed them by neglecting to interview key witnesses, requiring an unreasonable standard of proof and engaging “in conduct that could be perceived as victim-blaming.”

And the highest echelon of administrators failed victims by not having “meaningful engagement” with the reporting and tracking of sexual assault cases required by Title IX, the federal antidiscrimination law.

“Institutional failures at every level of Baylor’s administration impacted the response to individual cases and the Baylor community as a whole,” the report says.

It was strong medicine for the Baylor Board of Regents, which commissioned the Philadelphia-based law firm to do the exhaustive nine-month investigation. But regents appeared ready to take the prescription Thursday as they made a summary of the report available, accepted the Pepper Hamilton recommendations and announced a leadership shake-up. Among other moves, they removed Ken Starr from the presidency and ousted head football coach Art Briles, who had built Baylor’s program into a powerhouse. Starr will remain as the university’s chancellor.

“We were horrified by the extent of these acts of sexual violence on our campus. This investigation revealed the university’s mishandling of reports in what should have been a supportive, responsive and caring environment for students,” outgoing regent chairman Richard Willis said. “The depth to which these acts occurred shocked and outraged us. Our students and their families deserve more, and we have committed our full attention to improving our processes, establishing accountability and ensuring appropriate actions are taken to support former, current and future students.”

The regents agreed to have staff follow up with past alleged victims, beef up Title IX staffing and protocols, hire a compliance officer reporting to the president and create an executive task force to work on implementing recommendations.

For some critics of Baylor’s past handling of sexual assault cases, the announcement Thursday looked like a turning point.

‘Very hopeful’

“From my perspective this is very hopeful,” said Kyndall Rae Rothaus, a 2011 Truett Seminary graduate and now pastor at Lake Shore Baptist Church.

She organized a series of prayer vigils earlier this year seeking justice for rape victims at Baylor.

“I think this makes Baylor really a leader in how to respond to serious accusations about assault and violence,” Rothaus said. “It seems like an important step to stop sweeping things under the rug. I would hope people would applaud that. Even though the news is bad, the decision to be honest about it is good.”

Attorney Alex Zalkin of San Diego, who is representing rape victim Jasmin Hernandez in her Title IX lawsuit against Baylor, said Baylor should have released the entire Pepper Hamilton report and should have fired Starr and athletic director Ian McCaw. But he said Thursday was a good start.

“I commend Baylor for taking the significant action that it did,” Zalkin said. “I’m hoping this will serve as motivation for other coaches and administrators (at other colleges) to take this issue seriously.”

Tevin Elliott, a former Baylor defensive end, is now serving 20 years in prison for the sexual assault of Hernandez in 2012.

Zalkin said the regents’ actions and apology to victims are meaningful to his client.

“She feels vindicated to some degree, but it doesn’t change what happened to her,” he said.

Until Thursday, regents and Baylor officials have been close-lipped about the rising din of complaints over how the university handled sexual violence allegations, always referring to the Pepper Hamilton investigation. Regents were briefed on the findings earlier this month, but it wasn’t clear at the time whether the report would ever be released.

In a conference call Thursday, Pepper Hamilton attorney Gina Smith said the 13-page “Findings of Fact” and 10-page recommendation document accurately summarized the “salient” points of the investigation. Baylor regent officials said releasing any more information from the investigation would violate the privacy of victims.

Pepper Hamilton officials said they interviewed more than 65 current and former students and employees and reviewed some 1 million pieces of information, including emails, mobile device data, personnel files, student records and audits. The investigation covered the academic years between 2012 and 2015.

The report does not name individual perpetrators and victims, but several Baylor football players have been accused of rape in the last few years. Tevin Elliott was convicted for rape in 2014, Sam Ukwuachu was convicted last August in a 2013 rape case and Shawn Oakman was arrested in April on a rape charge.

The report paints a picture of systemic failure of Baylor officials to meet their duties under Title IX and other federal laws pertaining to sexual violence.

“Pepper found that the University’s student conduct processes were wholly inadequate to consistently provide a prompt and equitable response under Title IX, that Baylor failed to consistently support complainants through the provision of interim measures, and that in some cases the university failed to take action to identify and eliminate a potential hostile environment,” the report states.

Title IX of the Educational Amendments of 1972 requires that schools receiving federal funding must ensure than no one is excluded from participation on the basis of sex. Federal directives and case law have established that tolerance of sexual harassment and violence create a “hostile environment” that amounts to sex discrimination.

An April 2011 directive from federal education officials required schools receiving federal funds to have a Title IX coordinator and to publish a grievance procedure for sexual assault, harassment and violence.

Baylor “failed to effectively implement” the new requirements and did not hire a dedicated Title IX coordinator until November 2014.

Overall, implementation efforts were “slow, ad hoc, diffuse and uncoordinated,” and protocols for tracking sexual violence cases were lacking until at least spring 2015.

The “overwhelming majority” of sexual assault complaints never moved forward to an adjudicative hearing, often because judicial affairs staff wrongly thought they did not have jurisdiction in off-campus cases. The judicial affairs office applied a “by the book” student conduct approach that focused on consistency in complainants’ statements and failed to account for the effects of trauma.

‘Wholly inadequate’

“The investigations reviewed were wholly inadequate to fairly and reliably evaluate whether sexual violence had occurred,” the report states, adding that most investigations were “cursory.”

The report also notes that until August 2015, Baylor had no “amnesty” policy for victims who were using drugs and alcohol in violation of university policy when they were assaulted. The university’s policies forbidding alcohol use and premarital sex were a barrier to reporting, the report states.

If the report is critical of inaction by administrators, it is even more harsh about the actions of athletic officials.

“In some cases football coaches and staff had inappropriate involvement in disciplinary and criminal matters or engaged in improper conduct that reinforced an overall perception that football was above the rules, and that there was no culture of accountability for misconduct,” the report states.

When confronted with allegations of sexual violence, football staff and other athletic leaders at times chose not to report the cases to anyone outside the department. Instead, “football staff conducted their own untrained internal inquiries, which improperly discredited complainants and denied them the right to a fair, impartial and informed investigation.”

The report also shows that athletic officials failed to conduct required background checks, dismissed players for unspecified violations and helped those players transfer to other schools.

Such practices were “fundamentally inconsistent with the mindset required for effective Title IX implementation,” the report states.

The problems identified in the report are by no means unique to Baylor, said Christina Mancini, an associate professor who studies sexual victimization and campus sexual assault at Virginia Commonwealth University’s L. Douglas Wilder School of Government and Public Affairs.

More than 200 colleges across the country are under investigation for Title IX shortcomings, and Mancini said many colleges still don’t have full-time Title IX coordinators.

“There’s an administrative issue of, to what extent do organizations have some degree of responsibility for managing interpersonal crime?” she said. “It may seem unfair, on the one hand, to mandate that they do all this. But they have a real incentive to do so with students suing left and right.

“Even if a school settles out of court and the details are confidential, it’s bad for the image of the university. More schools are learning from the mistakes of others. I think this will be a teaching moment for schools across the country.”

Mancini said there’s no question Baylor regents acted swiftly and decisively.

“It sounds like there’s a push to provide better leadership with the clear mission to protect victims of sexual assault,” she said. “They’re not dragging their feet.”

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