The whole ordeal began only a few weeks after she was raped. She sat in a nearly empty Bowman’s Den and her rapist walked in the door, flanked by his friends. 

He walked past her toward the Starbucks. Then they turned around and walked past her again toward the Panda Express. Then they walked toward her again, and sat at a table behind her. 

She got up from the table and walked to Common Grounds across the street. Then she ran into the bathroom and threw up. 

Soon after she turned to the university for help. But despite what she thought were assurances, it would not be the last time she would run into her rapist on campus. 

A National Problem

This survivor of a sexual assault in a residence hall last year wrote an open letter to UK’s Title IX Coordinator, Patty Bender, to express her unhappiness with the sanctions placed on her perpetrator and to inform other students of her experience. 

She came forward to the Kernel after it published a series of stories about former associate professor James Harwood, who was investigated by the Title IX office for sexually assaulting and harassing two female students.

In an interview with the Kernel, Bender said she knew what case the letter referred to but would not comment on either. 

UK made national news this year when it sued the Kernel to appeal the decision of the Attorney General that the university could not keep documents of the Harwood investigation from the public. 

Title IX investigations of sexual assault at universities have made news across the nation as well: 

• The Department of Education’s Office of Civil Rights was investigating the University of Wisconsin when dozens of women came forward in the recent case of serial rape suspect Alec Cook. 
• Baylor University is under a similar federal investigation into its mishandling of the case of a female student who was sexually assaulted by former football player Tevin Elliott.
• A federal judge in Kentucky recently ruled against NKU in another Title IX lawsuit for its inadequate response to a student’s sexual assault, and the university’s reasoning that a student privacy law supported counsel’s refusal to discuss the details of the investigation in court. 

Women who have gone public with their assaults and journalism organizations like the Student Press Law Center have argued that attention to the issue of sexual assault in the media has encouraged survivors to come forward.

In its coverage of the Cook case in Wisconsin, The New York Times reported that “Only after one woman told investigators a harrowing story of hours of detainment and abuse did others contact the authorities — ‘dozens’ of them, the authorities said, all ‘wanting to speak’ about Mr. Cook, and apparently emboldened to do so after reading the initial accounts.”

Universities have fought to keep mention of the assaults, and the investigations into them, private. 

They cite FERPA, the Family Educational Rights and Privacy Act, and the fear that the public would abuse the information or reveal survivors, as their reasoning for silence. 

“If it were true that reporting has gone down on the University of Kentucky campus for fear of publicity, that is a direct product of the president’s own campaign of falsehoods,” Frank LoMonte, executive director of the Student Press Law Center, said. “There is no dispute that sexual assault reporting has increased markedly over the past five or six years when the news media began paying closer and closer attention to rape on college campuses.”

With each case, controversy and confusion breed to paint a picture of a flawed justice system within the administration often compared to a criminal court. 

These are not criminal cases. They fall under a university process that is a part of Title IX, a federal gender discrimination law at universities designed to address civil rights issues.

Title IX does not investigate students and employees for sex crimes. It investigates gender discrimination. 

“Technically sexual assault is a very serious form of sexual harassment,” Bender said. 

Title IX was passed in the 1970s as a law that required universities receiving federal funding to prevent discrimination against students and employees on the basis of sex. 

Because the law, and the university policies across the country that mirror it, classifies any form of sexual misconduct as a form of sexual harassment, the consequences of violating it reflect a punishment for discriminating against people because of their gender.

Accused faculty, staff or students who are found responsible for what the Title IX office considers severe forms of harassment (rape, sexual abuse, sexual assault, stalking, fondling, physical and sexual violence in relationships, or psychological and emotional abuse in relationships) receive sanctions Title IX has deemed appropriate for dealing with gender discrimination. 

The objective of its investigations and sanctions is to make it possible for students and employees who feel like they have been discriminated against to continue their education or work at the university in a suitable environment. 

Sanctions that can be placed on their perpetrators include: temporary suspension, expulsion (for students) and termination (for employees). 

The university cannot place any criminal charges on someone who is found responsible and takes responsibility for any form of sexual misconduct — including criminal offenses such as rape.

They can encourage the survivor to go to police, but the only way survivors can pursue punishment for their accusers for a sex crime is if they go through the legal system. 

Many survivors don’t want to do that and instead choose only the Title IX option.

The university promises students, if an investigation and sanctions are conducted successfully, a chance to continue their education in a safer, more secure environment. 

Title IX works with the Dean of Students to place “no contact orders” on perpetrators who remain on campus. 

If survivors fear retaliation from attackers, this order placed on the accused tells them that if they try to contact the survivor they will face a Code of Student Conduct violation, according to Bender.

Title IX can also issue a campus ban letter, which they work with the UK Police Department to enforce. 

If a student fears retaliation from an attacker who is no longer on campus, university police can be called if the attacker makes contact with the survivor on campus, or steps foot on the premises. 

But even if a student or employee is removed from campus and survivors at UK are able to continue to pursue their education or career, the conclusions of the investigation could remain private after an attacker moves on to another school. 

Inside the System

Eric Smart was a researcher at UK investigated for sexually harassing female employees. This only came to light after he underwent a federal investigation for scientific misconduct, and by that time he had taken a job at Bourbon County High School, according to The Lexington Herald-Leader. 

The superintendent of the school district was questioned about the decision to hire Smart with this investigation into him, and she said neither the investigation nor any mention of its conclusions was in his personnel file. 

In the case of the student who wrote a letter to Bender, the accused student moved on to another school. It is unclear whether these allegations were made known to that school.

When Title IX investigations into employees conclude and charges of university violations are levied against them, investigators have an informal meeting with them to discuss the sanctions.

If employees accept sanctions, the case is closed and their separation from the university goes into the hands of their supervisors — assuming that the sanctions required the employee be removed from campus.

The only place where any mention of the investigation can appear on employees’ records is in their separation sheets, which their supervisors (a department head or dean in many cases) can fill out at their own discretion. 

While Title IX sends supervisors recommendations, employees cannot be prevented from resigning to avoid having their suspensions or terminations appear on their files. 

There is a box on the sheet for resignations of employees who are not eligible for rehire which says they resigned in, “Anticipation of Discharge,” but whether supervisors mark it is up to them. 

They do not have to send a copy of the form back to Title IX, and Bender said they often don’t. 

There is a box where supervisors can give an explanation for separation, but they are not allowed to include the details or specific charges of the investigations — just violations of the general university policies. 

Whether they decide to fill out this box is also up to their discretion. 

Harwood emailed the Kernel before its first story was published and said he resigned for family medical reasons. He was charged during the Title IX process with two counts of sexual assault and two counts of sexual harassment, according to the investigative report. 

Cases that have arisen at UK have raised as much controversy and confusion as they have elsewhere. 

Universities across the country are being investigated for an inadequate observance of federal Title IX law, and many refuse to shed light on their process because they argue it would violate FERPA, which requires they not disclose students’ records or information without permission.

“The idea that FERPA allows a university to withhold information about employee misconduct that might have a bearing on students’ safety and welfare is 180 degrees opposed to the intent and purpose of the statue,” LoMonte said. “They can’t opportunistically manipulate FERPA when it serves their secrecy agenda.”

The only people who can shed light on the entire process — the only people who can hold their perpetrators and institutions that mistreat them accountable to the public — are the people who are already fighting a battle to recover from trauma.

The survivors in Harwood’s case pointed out a lapse in the university policy that allows employees like him to circulate in academia without notice. 

The survivor in the case of Jane Doe v. Tubman, the former football player at UK she accused of rape, started the federal investigation into how UK handled its Title IX investigations under the Office of Student Affairs. 

Now a student has come forward to the Kernel expressing her discontent that Title IX officials did not inform her that her rapist would remain on campus until after she reached out to them. 

Even after that meeting, she still ran into him, and chose to avoid areas of campus to not run into him afterward.

What she has revealed, and what Bender confirms, is that Title IX investigators meet with survivors after an investigation concludes, and they show the survivor sanctions but do not always mention that they have not been approved yet and will not necessarily be the sanctions placed on the perpetrator. 

Bender must sign off on the sanctions placed on perpetrators, and once they have been decided, the survivor cannot receive a copy of exactly what sanctions were placed. 

Bender said Title IX could talk with survivors about what was decided, but in the case of this survivor who has penned Bender a letter, that communication can come too late. 

The survivor reached out for an explanation from Title IX after she had heard her perpetrator accepted sanctions and would still be on campus until the end of the semester. 

The Fight Continues

The investigation was concluded. He was found responsible and he accepted responsibility.

Title IX placed him under sanctions and she was given a permanent “no contact order” that was supposed to protect her.

On an afternoon in April, she was walking up the right side of the horseshoe pathway at W.T. Young Library, looking at her phone when she glanced up and saw him coming toward her. 

She had already passed the divergence in the pathway. She could either turn around and risk him catching up with her, or she could forge ahead. 

Terror and the desire to curl into a fetal position filled her, but she kept walking. 

Her head up, she passed him and his laughing friend, and didn’t decompress until she made it to her friend at the 90. But she had made it, and she still fights to make it.