Secret Courts, Single Sources, and Silence: The Pitfalls of Reporting on Campus Sexual Assault
“There is no subject that is more fraught with peril than this one,” David Anderson, professor of law at the University of Texas, told The Politic. “It’s so hard to get the information in the first place; it’s so hard to confirm the information; it’s so hard to know what the truth is. I can’t think of one subject that’s harder to cover than sexual assault.”
From navigating closed-door disciplinary hearings and strict confidentiality policies to interviewing traumatized survivors and avoiding single-sided narratives, journalists face many pitfalls in reporting on campus sexual assaults. Reporters at Rolling Stone and at Yale have confronted these difficulties firsthand.
On November 19, 2014, Rolling Stone published “A Rape On Campus,” a damning exposé of how university administrations handle rape on college campuses.
Sabrina Erdely’s article told the gruesome story of “Jackie,” a college freshman at the University of Virginia, who was invited by “Drew” to his fraternity’s crush night. When she got to the fraternity, Phi Kappa Psi, Jackie was led upstairs, tackled onto a glass table, and gang raped on its broken shards.
The story broke readership records. It reached 2.7 million people, and sparked a broader national conversation about sexual assault on college campuses.
But a few weeks after the article’s publication, news outlets started to raise questions about Erdely’s reporting—and whether the story was true at all.
Rolling Stone hired auditors from the Columbia School of Journalism to uncover what had gone wrong. The Columbia report revealed significant gaps in the story’s reporting. The three friends that Jackie said she approached after the assault, whom she singled out for their alleged callousness, were never contacted. Drew, the lifeguard who led Jackie up the stairs, was never a member of Phi Kappa Psi. The fraternity itself had no record of a “date night” being hosted that weekend. These errors made the article, in the words of the Columbia Journalism Review, “this year’s media fail sweepstakes.”
Two years after the article’s publication, a federal court in Virginia found Rolling Stone guilty of defamation. The court penalized Erdely and her editors, and the mistake cost the magazine three million dollars.
Rolling Stone’s very public mistake demonstrates the problems journalists face when reporting on sexual assault.
In reporting on the UVA case, Erdely felt her main failure was that she did not press Jackie to corroborate the story.
“I allowed my concern for Jackie’s well-being, my fear of retraumatizing her, and my confidence in her credibility to take the place of more questioning and more facts,” she explained in a statement published in The New York Times.
“The Rolling Stone story was published at a moment of rising alarm about campus sexual assault,” said Emily Bazelon ‘93, JD ‘00, a staff writer at The New York Times, in an interview with The Politic. “And however warranted that was, unfortunately Rolling Stone picked a story to tell that it didn’t try hard enough to verify.”
Vicki Beizer ‘18, Public Relations Coordinator at the Yale Women’s Center, believes that in their attempts to verify stories of campus sexual assault, journalists can sometimes be too invasive.
Last spring at Yale, the University-Wide Committee on Sexual Assault (UWC) found basketball captain Jack Montague guilty of sexual misconduct and deemed the offense worthy of expulsion. At the same time, the team played its way to an Ivy League championship and its first NCAA Tournament berth since 1962, launching the case into national headlines.
In the media frenzy that followed, the Women’s Center received emails from journalists hoping to report on the story. “We would get emails from reporters of actual news organizations like the New York Times and AP and USA Today, and they would ask questions that…[lacked] respect, in terms of journalistic standards,” Beizer told The Politic.
Beizer expressed frustration at the requests. “When we get questions like: ‘Can you give us the name of the victim?’ I’m like, ‘Really?’” she said.
“The number one concern should be the welfare of survivors,” Helen Price ‘18, president of United Against Sexual Assault at Yale, echoed in an interview with The Politic.
But Bazelon worried about sacrificing good journalism.“Journalists aren’t advocates,” she said. “It’s our job to check the facts and to test an account for accuracy.”
Fact-checking accounts of sexual assault is made more difficult by closed-door disciplinary hearings at universities. “Universities face a big dilemma when it comes to transparency,” Bazelon said.
Much of the secrecy in university proceedings is the result of the Family Education Rights and Privacy Act (FERPA), a federal law mandating that schools protect their students’ privacy. FERPA prevents schools from releasing any student’s educational records without the permission of the student.
“Schools treat any type of discipline proceeding as part of a student’s private records,” Shan Wu, a former federal prosecutor who often represents college students in university disciplinary proceedings, said in an interview with The Politic. Under FERPA, he explained, disciplinary records cannot be released to the press. Without a public hearing or even a record of that hearing, media coverage becomes difficult.
Bazelon knows first-hand about issues of secrecy. She worked for months on the story of Emma Sulkowicz, a Columbia University student who vowed to carry a mattress everywhere she went until the university expelled her rapist. Paul Nungesser, the accused student, publicly denies the rape.
Bazelon eventually gave up on the story because of the lack of administrative transparency. “Even what happened behind closed doors at the tribunal itself was described in contradictory terms by different people, and I had no way of knowing who was right about what happened at the proceeding,” she recounted.
Bazelon believes that universities have two incentives to withhold information. “They are mandated by FERPA to protect student confidentiality, and sometimes they conclude that it’s in their self-interest to go beyond the law’s requirements and withhold information,” she said.
“Often, I’d argue, that’s a mistake,” she continued. “Secret courts do not instill confidence because people can’t see for themselves whether they’re fair or not.”
At Yale, the UWC guidelines require all members of the Yale community who are involved in its proceedings to maintain a standard of strict confidentiality.
“If parties or witnesses fear that their participation or testimony in a UWC proceeding could be revealed,” the statement reads, “then concerns about reputation, social tension, or retaliation may cause them to keep silent.”
Melanie Boyd is assistant dean of student affairs and director of the Community and Consent Educators (CCE) program at Yale, which is tasked with promoting a healthy sexual campus climate. She stressed the importance of confidentiality.
“In the many conversations I’ve had with people who are considering filing a complaint, confidentiality is almost always a concern. Filing a sexual misconduct complaint is a deeply personal experience,” she said.
“People want to know whom the information will be shared with, and to have some control over that. It’s hard for me to imagine most people going ahead if we couldn’t reassure them that we will absolutely protect their confidentiality,” she continued.
A Yale student who has been through the UWC formal and informal process spoke with The Politic on condition of anonymity. She sees a problem with the UWC’s stringent confidentiality policies.
“While it’s true that staying silent does offer a lot of security and is a completely respectable personal choice,” she said, “often people who might want to speak up and share their stories feel bound to silence by this agreement.”
In April 2015, Nicole Narea ‘16, then a staff writer for the Yale Daily News, worked around UWC confidentiality policies to write an article entitled “Harassment at SAE and its fallout.” In the article, she describes a sexual assault case against Sigma Alpha Epsilon (SAE), a Yale fraternity now named Leo. A student, “Zoe,” had argued her case against SAE before the UWC. She reached out to Narea to publicize her story because she felt Yale administrators were not doing enough to reprimand the fraternity members.
The article examined the secretive world of the UWC. Through leaked documents from the UWC case and interviews with the student and SAE brothers involved, Narea presented the facts of a case that had been “circling the campus rumor mill for a while.”
Her article carried broad implications for journalism on sexual misconduct at Yale. Narea believes that her story moved the administration to close some loopholes in their ambiguous confidentiality rules and make it harder for information about the proceedings to get to the press.
Narea explained that before her story was published, there were “murky regulations surrounding to what extent people were allowed to release that information if they were still subject to this confidentiality clause.”
“As a result of that story, they changed some of the rules about publicity surrounding UWC cases, which have made it now even harder to report,” she said.
Nearly a year later, Narea encountered the roadblocks her article had created when she worked as a contributing reporter on the Jack Montague case for The New York Times. “I wish we had been able to go deeper than we did,” Narea reflected.
Narea reached out to the survivor in the Montague case, she was hesitant to come forward. “By that point I think the rules had changed, and she was not only hesitant because of privacy concerns, but I think that also because by virtue of going through the confidentiality process, you’re not supposed to talk to the media,” Narea recalled.
Kathryn Lofton, a member of the UWC and former chair of the Women’s, Gender, and Sexuality Studies Department at Yale, acknowledged the validity of demands for transparency but
defended Yale’s confidentiality policy.
“I do think it is incredibly fair…[but] it is understandably frustrating for journalists,” she said. “I have compassion for the desire of the public to understand everything and know everything and read everything, but these are necessarily, importantly confidential proceedings.”
Still, Narea said that iron-clad confidentiality rules at Yale might not be entirely for the survivor’s safety. “As much as they should be beholden to the needs of their students, they also don’t want a public relations nightmare,” she said.
Anderson echoes that sentiment. “Universities are hiding behind those laws, to a large extent, because they do not want to have a reputation as being a place where people get raped.”
When Bazelon discussed the biggest failings of Rolling Stone’s “A Rape on Campus” she pointed to the danger of a single source.
“The basic lesson of [the Rolling Stone] case is that you cannot hang a serious story with serious allegations on a single source,” she said.
If the issue in “A Rape on Campus” was a lack of corroboration, then the issue in the Montague case was the inability to corroborate due to UWC confidentiality policies. “I think, unfortunately, the primary voices in [the Montague story], particularly after the men’s team did so well, were the basketball players themselves,” Narea said.
The anonymous student also voiced frustration with the burden of confidentiality policies placed on survivors. She worries that the woman in the Montague case could be punished by the university for speaking out, while Montague faces no repercussions for coming forward because he is no longer at Yale.
“Now that Jack Montague is expelled, he has nothing to lose by speaking out because Yale cannot punish him any more than they already have,” she said. “The woman who filed the complaint has remained and will continue to be silent because she has to maintain confidentiality in order to retain Yale’s protection.”
“This puts Montague in the privileged position of being able to control the narrative,” she contended.
After he was expelled, Montague sued Yale for breach of contract and defamation. Montague’s lawyers accuse the UWC process of being “deeply flawed,” claiming that Montague had “reasonably believed he had consent to engage in sexual activity.” Their statement further accused Yale of expelling Montague because he was “a prime candidate to serve as Yale’s poster boy for its tough enforcement of its Sexual Misconduct Policies.”
The narrative put forward by Montague’s lawsuit reveals some of the facts of the highly secretive case. In its response, Yale confirmed that Montague and the student had a previous sexual relationship and that the case concerned their fourth encounter, which Montague holds was consensual but which the UWC ruled was not.
Because of secretive university policy, coverage of the Montague case missed information about the survivor and the proceedings. Reporting from the Yale Daily News and other news outlets relied heavily on statements from Montague’s representatives. The female student who accused Montague of rape has not come forward. “The statement that came out last spring was nowhere near the full story,” said Price. “I think that was clear to most people who read it.”
Even so, the anonymous student who spoke to The Politic said that her experience with the UWC gave her confidence in its handling of the Montague case, regardless of its secretive proceedings.
“As someone who has been through the UWC informal and formal complaint processes, I can tell you that the panel takes the he-said-she-said issue extremely seriously,” she said.
“Yale is extremely wary of taking action against a respondent unless the facts seem incredibly unambiguous,” she shared. “We do not know many of the details of this case, but we can safely say that Yale has deemed Jack Montague a danger to our campus.”
In response to Montague’s suit, Yale issued a statement dismissing the claims as “legally baseless” and “factually inaccurate.” They did not elaborate further on either claim.
David Post, chairman of the UWC, defended the confidentiality clauses, even if they result in single-sided reporting on the hearings. “As much as Yale administrators might want to respond to the inaccuracies in these statements, we remain committed to our obligation to protect the privacy of complainants, respondents, and witnesses involved in UWC cases,” he told The Politic.
“There is nothing more frustrating to a member of the UWC than seeing how information gets disseminated when people choose to violate the confidentiality agreement,” said Lofton. “That decision does absolutely distort the public’s understanding of our proceedings, and I think that there’s nothing we can do about that.”
“The committee cannot do its work if it is subject to the terms of public opinion,” she added.
But from the anonymous student’s perspective, the freedom of survivors to speak out is important.
“We [survivors] are told that the only way to protect our safety and dignity is to remain very private. But sometimes this burden is too difficult to bear alone and, as I have learned, you can draw strength by speaking out,” she reflected.
Lofton maintains that UWC rules do protect survivors. “The complainant wants it after the fact, but they haven’t thought through what the end of confidentiality would be to the beginning of the fact, to the process of the proceeding itself,” she said.
But Narea disagreed. She made a distinction between confidentiality during the proceedings and after the ruling. “I think it’s sort of a different thing to be contesting the results of a case, as opposed to the actual case while it’s going on,” she said.
“I wish that [the survivor in the Montague case] had spoken out,” she said.
Narea believes the student could have come forward without facing real repercussions from Yale.
“There is power in the media. I think that if she had gone to the media, if she had gone to the Times with that story, the university would’ve looked really, really bad if they had expelled her,” she said.
Nevertheless, Narea acknowledged the risks students face in breaching confidentiality policies. “If your education is on the line, I understand it’s a personal decision and that you wouldn’t want to take that risk, and I think that the university knows that as well,” she said.
“I think that it’s important to have these conversations, and I think [the YDN] story sparked some of them,” Narea said.
She continued, “But we need to continue keep having them, and we’re not going to continue having them if victims are being silenced by confidentiality clauses that are maybe doing more harm than good.”
“Erdely is a smart and accomplished journalist, and the failures of that piece were so sweeping that there had to be other motivations,” Caitlin Flanagan, a contributor at The Atlantic who writes about college campuses and feminist issues, told The Politic.
Flanagan believes Erdely’s mistakes in the Rolling Stone article could have been avoided. “She was on a huge contract—$300,000 for seven pieces—and was expected to deliver break-the-internet stories. I think she cynically exploited the goodwill of readers,” she said.
Price agreed. “The alleged assault around which the piece is centered is not representative of the vast majority of sexual assaults on college campuses, which usually involve two previously acquainted parties.”
“The media does itself a disservice in writing about stories that are very clearly victim-and-perpetrator complexes because it really doesn’t capture a majority of the cases that tend to happen on college campuses, which are much thornier to decide,” Narea echoed.
Price also points to the benefits of writing a victim-perpetrator story that fits a traditional narrative. “The fact that Sabrina Erdely chose to profile the gang rape of a young white woman shows that, from the outset, she wanted a sensationalist piece rather than an accurate exposé of campus sexual assault and the ways in which colleges fail to tackle it,” she said.
Regardless of Erdely’s motivations, the failures of her article overshadowed the valid concerns it raised about how UVA handles sexual assault.
“The criticisms of UVA didn’t totally fall apart,” Bazelon said. A federal report released in September of 2015 by the Office of Civil Rights found that UVA had violated Title IX from 2008 through 2012 and had three more violations after the 2011-2012 school year. Further, it found that UVA had created a “hostile environment” for students on its campus and that it “failed to investigate” allegations of both “rape and gang rape” on its campus.
Furthermore, Jackie’s story was never proven false.
“I actually do believe something happened to Jackie, and I think it’s really unfortunate that this story has been about false claims and what people are saying about her,” Annie Clark, co-founder of End Rape On Campus, said in an interview with The Politic.
Ryan Duffin, a friend of Jackie’s, told the Associated Press that he also believed something happened to Jackie that night. Though the story Jackie told Rolling Stone was not the story she told him, he did receive a “frantic call” from her on the night of the alleged rape. When he and the two other friends named in the story went to meet her, he said, “it looked like she had been crying…Her lip was quivering, her eyes were darting around.”
“If she was acting on the night of Sept. 28, 2012, then she deserves an Oscar,” Duffin said.
Clark cited a study done by the FBI that shows that only two to eight percent of rape allegations are false—meaning nearly all of them are true. “Even though a very, very, very small minority of cases are unfounded or false allegations, a lot of media treat this as a 50-50 issue,” she said.
“Erdely and her editors had hoped their investigation would sound an alarm about campus sexual assault and would challenge UVA and other universities to do better. Instead, the magazine’s failure may have spread the idea that many women invent rape allegations,” reads the Columbia report.
“That kind of thing is really devastating. It does have a big impact on campus sexual climate and how people view survivors,” Price said.
“You start to get this mentality of ‘This is all a bunch of nonsense, there is no sexual assault problem, these are just a bunch of rigged cases that are going on,’” Wu said.
“I hope that my mistakes in reporting this story do not silence the voices of victims that need to be heard,” Erdely said after her story unraveled.
Her anxieties about the consequences of her journalistic failures may not be unfounded.
“George Wyatt,” a commenter on the YDN website, commented on an article about the Montague case: “Consider a few cases: UVA Jackie – Totally PC, massive left-wing hype, completely fake. […] Columbia Sulkowicz – Totally PC, massive left-wing hype, almost certainly fake. Yale – Totally PC, massive left-wing hype, almost certainly fake.”