Sydney Silberman is a senior studying Child Development, Psychology, and Philosophy. She is an RA in Branscomb, Peer Guide at the Center for Student Wellbeing, and former member of the Vanderbilt Sexual Assault Awareness and Prevention Committee. Sydney’s passions include Title IX advocacy, LGBTQI+ issues, and racial justice.
This is the third installment of VPR’s investigation into how Vanderbilt’s handles power-based and intimate partner violence (See A Student’s Account for Part One. See An Overview of Vanderbilt’s Resource for Part Two). In this segment, VPR contributor Sydney Silberman assesses students’ negative experiences with EAD investigators – specifically regarding insensitivity and abuse of discretion – which ultimately lead to the office’s poor reputation.
Naveen Krishnan contributed to this article.
When a system fails the people it was created to help, a deep, gut-wrenching feeling of hurt is generated. Survivors of power-based and intimate partner violence experience this phenomenon too frequently, pained by the traumatic experiences themselves and once again by the system to which some choose to report. After months – sometimes years – of retraumatizing interviews, testimonies, and meetings, not to receive justice seems worse than the traumas themselves. This is why 63% of sexual assaults specifically go unreported.
Many survivors in the Vanderbilt community feel similarly about the University: terribly hurt and let down such incidents happened in the first place, and even more so when investigators victim-blame complainants, fail to communicate effectively, and actively not find perpetrators guilty. These three trends are common across student experiences with The Office of Equal Opportunity, Affirmative Action, and Disability Services (EAD), ultimately leading to its negative reputation amongst the student and faculty bodies.
The EAD, housed in the Baker Building across from the Psychological and Counseling Center, works to ensure the University is in compliance with equal opportunity and affirmative action laws by investigating cases of discrimination, harassment, and intimate partner violence; moreover, the office claims to provide trainings for “discrimination, harassment, diversity, disabilities, and sexual misconduct.” This is quite the number of obligations for an office with just nine employees — only four of whom formally investigate complaints (in addition to their other position requirements).
Anita Jenious, the Title IX Coordinator and Director of the EAD, leads the office and oversees all activities, including complaints, investigations, and resolutions. As Director, Jenious typically does not personally investigate student complaints. The Assistant Director, Sandra Keith, “manages investigations and resolves complaints of discrimination, harassment, and related retaliation within the institution.” D. Michael Carter, the Compliance Manager serves as an investigator, diversity educator, and point person for the University’s annual affirmative action plan.
Not coincidentally, these top three staff members are generally regarded as the most problematic and least-liked by the population of students who have worked with the EAD. Due to the rarity with which its investigators find perpetrators guilty, the office has developed a reputation of failing to protect most survivors of intimate partner and power-based personal violence. Behind the scenes, investigators retraumatize complainants beyond what is typically expected from an investigation, inappropriately and inconsistently communicate with students, and blatantly defy the Sexual Misconduct and Intimate Partner Violence policy (referred to as ‘the policy’).
Pick One: Inappropriate Communication or No Communication
No matter how respectful, gentle, or sensitive an investigator may be, intimate partner violence investigations are inherently upsetting and disturbing because a survivor must repeatedly recount details of his, her, or their trauma; however, there is a fine line between standard investigative procedures and harmful and insensitive practice. This line has been crossed at Vanderbilt far too many times.
Carter Jane Pond, a senior, participated in an investigation with D. Michael Carter during the 2015-2016 academic year. Unaware of what an investigation requires and entails, Pond spoke with the EAD in hopes of simply providing a character witness. After meeting with Carter, she felt “pressured” to participate in a full investigation as opposed to letting the EAD investigate the claims without her active participation — a right complainants have, as stated in the Vanderbilt policy.
In his questioning, Carter placed the emphasis on what Pond was doing, as if her actions had the ability to justify her perpetrator’s. “During my first meeting with him,” Pond noted, “he repeatedly victim-blamed me and asked questions like, ‘Well what were you wearing?’ [and] ‘Did you do anything lead him on?’ as well as implying that I had asked for it since [name redacted] and I had had consensual sex before. Every single time I spoke with Michael, I felt disrespected and like he didn’t believe a word of my story.” To imply a student has done anything to provoke an assault or abuse affirms what the survivor is likely already thinking: this is my fault; only the perpetrators are at fault. Details are important for the investigative process, such as knowing what clothing was worn as to confirm consistency with potential video footage and witnesses, but there are proper (ethical) ways to acquire such information.
Interviewees collectively agreed on another problem in the investigative process: persistent questioning. Every piece of information a complainant has may be useful in piecing together an event; and so investigators feel the need to push and pry, as if adding pressure will spark a vivid recollection of details not present beforehand. Students accused Keith and Carter of this phenomenon, as well as investigators Batia Karabel and Damian Marshall. “She just kept asking,” one student murmured, referring to Keith. “I said I didn’t know and she assured me that was fine, that was fine, but then she would ask again — like during that meeting and then other meetings. I told her I would tell her if I remembered. Either she wasn’t listening or she didn’t care.” Where do we draw the line between excessive psychological pressure and standard investigative practice? Is avoiding the former more important to investigators than the latter, or vice versa?
When placed in dangerous situations, both the body and mind automatically go into one of four modes: fight, flight, freeze, or appease. The lattermost option, too frequently misinterpreted as consent, refers to meeting the needs of the perpetrator to avoid conflict or danger. Actions that take place after any of the four reactions occur are non-consensual. Research has shown that trauma survivors are more likely to remember what and how they were abused or mistreated, not who the perpetrator was, as well as forget or suppress many small details of traumatic events. Encoding is limited during anxiety-inducing events. Trauma processing does not occur immediately after an event, nor are all details easily retrieved. Repeatedly asking a question will only cause more anxiety and stress for a survivor. It is crucial a sense of trust is developed between complainant and investigator; if the complainant remembers a detail, he, she, or they must notify the investigator. Similarly, the investigator must have faith the complainant will do so. Placing pressure on a potentially vulnerable student will not yield any positive outcomes.
The University prides itself on the number of trainings provided to faculty, staff and students. Due to the sensitive nature of investigations, EAD staff allegedly receive trainings year-round. “Specifically, we go through investigative training – make sure that we get trauma-informed investigative training – and we keep up with the policies to see what changes are happening,” Jenious stated in an interview with VPR contributor, Naveen Krishnan. All professional staff attend such trainings, which are led by individuals and organizations not affiliated with the University. The administration has been vague about such trainings until recently, failing to specify which organizations host trainings, what they entail, when they occur, and how frequently.
Why is it, then, with such an abundance of excellent training, investigators maintain insensitive and harmful practices? Victim-blaming language – terminology that places the responsibility of the assault on the person who was assaulted as opposed to the perpetrator – is not uncommon amongst students due to institutionalized rape culture. To have an investigator, someone who is meant to be trusted by a potentially vulnerable survivor, perpetuate such oppressive beliefs is especially dangerous and unacceptable. Working with the EAD triggered post-traumatic stress symptoms in more than just a few students; many described their assaults as less traumatizing than the investigation. “My experience overall with the EAD is what left such a lasting negative impression on me. The EAD investigation actually caused me more stress and anxiety than my own sexual assaults did,” admitted Pond.
Additionally, many students have difficulty effectively communicating with their investigators. The policy states investigations should take 60 calendar days. “Given the many variables and factors that may arise in such cases,” it states, “good cause may exist for extending the time needed in some cases, such as those involving multiple witnesses and complicated evidence. The complainant and the respondent will be notified simultaneously, in writing, if the investigation process cannot be completed within 60 days, and they will be provided with a revised timeline.”Pond attested she would “consistently not hear from Michael for months, except in the form of those emails stating that they need more time to go over the information from mine and [name redacted]’s interviews and they anticipate wrapping up in 30 days.” Rather than consistently and explicitly updating complainants on the statuses of investigations, investigators send a vague email to say, “Hey, sorry this is taking longer than we thought. We need additional time. We’ll contact you again in 30 days if we’re still not done.”
“My experience overall with the EAD is what left such a lasting negative impression on me. The EAD investigation actually caused me more stress and anxiety than my own sexual assaults did.”
Another student, who wishes to remain anonymous, experienced the opposite problem. In the Spring of 2015, the EAD received a complaint insinuating the student had experienced assault. The student was sent a cryptic email from Keith stating the EAD “would like to speak with [them] regarding a concern.” The student replied, notifying Keith the encounter was consensual, but never heard back; this rendered the student uncomfortable and anxious for months, uncertain if an investigation was being conducted or not. Keith never replied to the student and it is assumed an investigation did not take place.
Survivors, frequently silenced in the general, have been placed in situations where autonomy was violated. Reclaiming narratives and experiences is a powerful tactic used to regain such autonomy, as evidenced by the “Me Too” and “Carry That Weight” campaigns, amongst many others. When an investigator fails to inform a survivor of their position in a case, the uncertainty triggers the same feelings of powerlessness and uncertainty likely felt at the time of the trauma. A student must be in control of their investigative involvement. “Reporting remains an option,” Cara Tuttle Bell, the Director of the Project Safe Center, emphasizes. “Some survivors want to report through the university process and the law enforcement process. Most of the survivors impacted by sexual assault and sexual harassment are not choosing that right now.” The definitive cause of this hesitance is unknown, though it is not unlikely fears of retaliation and being failed by a university or the criminal justice system hinder survivors from filing complaints.
Harmful Investigative Practice and Abuse of Discretion
Needless to say, the lack of consistent and effective communication is alarming, causing more stress and anxiety a survivor need not experience. Perhaps this problem would be less harmful if complainants were assured the University would punish their perpetrators. This, unfortunately, is not the case: most investigations are closed without violation, even though only 2-10% of reports are false. The number of false reports decreases significantly on college campuses due to stigma (and, in Vanderbilt’s case, lack of faith in the EAD). Many colleges and universities fear negative press, especially in regards to sexual assault and other forms of power-based personal violence; it seems easier for administrations to pretend such incidents do not occur as opposed to addressing them properly. Vanderbilt’s transparency in releasing full campus climate survey data and its creation and expansion of the Project Safe Center seems to suggest otherwise, yet the same complaints about EAD are heard year after year.
The policy calls for the preponderance of evidence standard to be used when determining a violation — the same standard long used in Student Accountability and the Honor Council (both of which impose sanctions and punishments quite frequently). The preponderance standard has been used in sexual misconduct cases for years; after all, it is used to investigate most civil rights — and Title IX is a civil rights law. This burden of proof – also called the 51% standard or threshold – requires enough evidence to show it is more likely than not an event occured. It would seem as though using a standard of evidence that isn’t solely based on hard evidence, such as DNA and surveillance, would allow more survivors to find justice. It seems as though this standard has achieved quite the opposite: investigators, presumably tinged with bias and a sense toxic patriotism for Vanderbilt, are permitted to use their discretion.
On December 10, 2015, my own 8 month-long investigation was closed without violation — despite having submitted proof where my perpetrator admitted to pressuring me after I reminded him I repeatedly said “no.” Discouraged and invalidated, I genuinely believed I was the only one whose investigators blatantly worked their way around definitions in the policy, abusing their discretion. Through helping others with their investigations and listening to narratives from other survivors during the following years, it has grown quite apparent this abuse of power has, in fact, happened with most survivors. While interviewees bravely shared their experiences with me, most made it a point to pull up their reports (from the EAD), emails, and even some pieces of evidence they submitted. The preponderance standard is practiced consistently; testimonies, evidence, and policy definitions are artfully manipulated to produce an outcome desirable for the University’s reputation. Rather than finding a perpetrator guilty of not obtaining effective consent, for example, an investigator may claim there is not enough evidence to find him, her, or them guilty of coercion.
EAD investigations look similar to a purposefully failed math test: all the work is right yet the answer is wrong. In almost all of the cases that have been shared with me, the evidence supports the claims made, yet the investigators arrive at a negative finding. In a particularly unique case opened in Spring of 2016, Andrea Concaildi, a senior, was denied her right to file a complaint as a survivor when she both witnessed and experienced power-based personal violence. Carter emailed Concaildi, inviting her to the office to talk about her experience. Andrea agreed, but soon regretted the decision.
At the time of the incident, Concaildi called the Project Safe Hotline to seek help from a Victim Advocate, as she felt the situation was unsafe. The Victim Advocate agreed and called VUPD who then sent officers to address the situation. Upon receiving the VUPD report (as per mandatory reporting guidelines), Carter’s intent, as expressed by Concaildi, was to resolve matters informally. Unfamiliar with how EAD investigations work, Concaildi requested my help.
Prior to their first meeting, I was asked to attend as a support person. The policy states that both the complainant and the respondent are “permitted to ask one adviser of their choosing to accompany them to all meetings related to the report of a violation of the policy. The adviser for either party may confer privately with that party, but the adviser may not speak on behalf of the complainant or respondent or otherwise participate in any meeting. An adviser’s failure to comply with these guidelines may result in the termination of the meeting or the adviser no longer being permitted to be present.” Carter entered the waiting room, recognized me, and said he needed to speak with Concaildi alone.
Concaildi did not have a support person with her throughout the entirety of her meeting. After the meeting, Concaildi and I reconvened and she shared with me what was said during their conversation. “When I went in, he told me he spoke with his boss [Jenious] and they were just going to call him and scare him a little,” she recounted. “I told him I wanted to press charges but he said I couldn’t because I was a witness, not a victim. I was a victim and I wanted to press charges. And that’s when he told me that they don’t really focus on punishing the perpetrator as much as they focus on providing emotional support for victims.” Invalidated and hurt, Concaildi was unsure of what she could do to file a complaint. Carter seemed disinterested by her position case, wanting to brush off the incident as though she were simply a witness who could not file a complaint.
With Concaildi’s consent, I emailed Carter pointing out the policy violations made prior and during their meeting, as she was not being given her rights. Carter replied with the following: “The student in question was what we consider a third party witness. Before the student in question was interviewed, we knew enough to suspect that she was the witness to something and most likely not a complainant as contemplated under the policy. Nevertheless, I wanted to speak with her first to gather some information to make sure whether or not she would be a complainant. After speaking with her for a while, I ascertained that she was not making a complaint that she had been the victim of dating violence nor was she claiming retaliation for reporting something.”
However, Concaildi explicitly stated she did want to file a complaint as a victim. Moreover, the policy does not indicate that a “third party witness” cannot file a complaint. The University regularly says it is committed to meeting the needs of students “impacted by violence,” which seems counter to the decision to label Concaildi as a “third party witness.” During the meeting, Concaildi emphasized that a victim-advocate from The Project Safe Center had called VUPD and deemed the situation unsafe — a detail that would hopefully get Carter to take her position in the incident seriously. She felt unsafe, and a trained professional deemed the situation, as reported to her, unsafe. Yet again, the burden is placed on the survivor to prove their experience is severe enough to be deemed valid.
“When I went in, he told me he spoke with his boss [Jenious] and they were just going to call him and scare him a little,” she recounted. “I told him I wanted to press charges but he said I couldn’t because I was a witness, not a victim. I was a victim and I wanted to press charges. And that’s when he told me that they don’t really focus on punishing the perpetrator as much as they focus on providing emotional support for victims.”
Lawyers are known for their mastery of word manipulation, and the EAD is no stranger to this habit. In cases not closed with a violation – which is most cases – Investigators preface their final remarks with something along the lines of, “we’re not saying this didn’t happen — we’re just saying we did not find enough proof that this happened.” And there’s the catch: The various forms of evidence are present, accounted for, and deemed valid, but the “personal discretion” blanket allows investigators to improperly and inconsistently use the preponderance standard however they personally see fit. This unethical practice allows investigators to tastefully validate survivors’ experiences by deeming an incident worthy enough for an investigation while simultaneously saving the University from paperwork and a poor reputation.
In this age of technology where screenshots are frequently shared amongst friends, Snapchats are constantly taken, and surveillance cameras on every hall, it does not take much to recognize a situation more likely than not occurred; but, as stated above, universities don’t appear to be itching to come forward about power-based personal violence present on their campuses. Objective forms of evidence, such as explicit video or picture recordings of assault, police reports, and Sexual Assault Nurse Examination (SANE) reports – as well as the use or threat of involving outside lawyers – have been shown to yield harsher determinations with the EAD. A robust and thorough investigation with an abundance of evidence is obviously ideal, though we must not forget that access to all of the above is not granted – or even available – to all. Most survivors do not know they were assaulted, harassed, or intimidated until weeks, months, or even years after the incident; for those who were aware at the time, the fear of being mistreated by police officers and nurses hinders many from seeking immediate assistance. Nearly all cases of assault are committed by someone known to the survivor, which only adds to the confusion he, she, or they likely experience(s). It is highly unlikely an incident will be recorded behind closed doors.
Point of Intervention
After assisting Concaildi with her case, my threshold was beyond met. While working through Student Government under the Sexual Assault Awareness and Prevention Committee (VSAP), I met first with Chancellor Zeppos on July 27, 2016. During the meeting, I shared with him many of the aforementioned general issues, pointing out the accomplishments made the previous academic year through Project Safe and VSAP — including Project Safe’s transition from mandated reporting to (limited) confidentiality. The email exchanges between Carter and I were printed and encased in a laminated folder, for the Chancellor himself to keep.
“Wow, I can’t believe this,” I recall him saying. The meeting left me quite hopeful more change would be made within the EAD. Significant improvements had been made in campus climate, resources and programs on campus, and policy changes, yet an overwhelming discontent with the investigative process continued to loom over the student body like a large white tent on Alumni Lawn. As our student body’s understanding and treatment of intimate partner violence improves, it grows more and more evident that the EAD itself is the problem. This sentiment was shared once again in a larger meeting on October 20, 2016. I raised all of my concerns with Vice Chancellor Kopstain, Vice Chancellor Hill, Vice Provost Cyrus, and Project Safe Director, Cara Tuttle Bell. We discussed the lack of transparency within the EAD, specifically regarding the vague details and insufficient amount of trainings the staff receive, as well as the lack of updated public intimate partner violence statistics. Statistics for the period between August 2014 and August 2015 were released to a student journalist, Patrick Zinck, in the Fall of 2015. Zinck revealed these statistics an article published to his personal website, Vanderbilt Voice. The article sparked controversy and ignited a general distrust of the EAD.
Concerns regarding Carter and Keith’s abuses of discretion were raised as well, both housed in the general discussion of policy defiance and loophole-seeking practices. I recommend an outside investigative resource come to Vanderbilt in the Spring semester and look into how well EAD staff conduct investigations and whether or not they abide by the policy.
Unlike the two investigators, at no point did I attempt to hide my motives or desires. Carter and Keith should have had their titles revoked, effective immediately. Under no circumstances will additional sensitivity trainings or, say, a scary call (see Concaildi’s case) fix inherently flawed practices. Strangely, both investigators hold Doctorate of Jurisprudence degrees and have had experience in social justice-related roles prior to accepting positions at Vanderbilt, indicating there should be a deep understanding of proper investigative practice. Moreover, there are too many repeated offenses for sympathy to be granted.
When a university condones inappropriate behavior amongst its staff, the staff subconsciously learns it is acceptable to treat students in the same fashion. It is hypocritical for the institution to hold students accountable to the rules of the Handbook if it is not willing to do the same for its faculty and staff.
It is unclear whether Jenious caught any of these violations when reviewing cases. In Concaildi’s case, Carter allegedly spoke with Jenious in regards to how that specific incident should be addressed. Throughout my own investigation, Jenious and I maintained communication regarding my qualms, both via email and through in-person meetings. Being the Director and Title IX Coordinator does not leave Jenious much time, she says, to closely monitor her investigators, which, evidently, is necessary. “Meetings take up the majority of my time,” she told Krishnan. “Meeting with other campus partners on higher-level things. I meet with my staff for one-on-ones weekly.” When asked about the previous complaints made about Carter and Keith, she replied, “I would think that they are not doing their job correctly if they don’t have some sort of complaint arise. It happens in this line of work.” Complaints about FERPA and policy violations, victim-blaming language, and poor or lack of communication ought not be taken lightly.
As of January 2018, only some of the issues mentioned during the meeting have been addressed. Kopstain, Cyrus, and Hill made concerted efforts to alleviate the concerns to the best of their abilities. Change is slow — particularly on the institutional level. In September 2017, Kopstain notified me via email of the vast increase and improvement of staff trainings. Moreover, the office hired an additional investigator, Carla Brookins, the former Director of Student Advocacy at Lipscomb. The Project Safe Center staff and Dean of Students staff were not included in the hiring process. Updated statistics for the 2015-2016 and 2016-2017 academic years were released in July 2017. Carter and Keith maintain their titles as Compliance Manager and Associate Director, respectively.
Campus sexual assault activists and advocates around the nation are plagued with fear due to Betsy DeVos’ passion for defending innocent men accused of committing sexual violence. Despite her persistence in retracting the Dear Colleague letter written under the Obama Administration, rest assured Vanderbilt will not be changing its policies any time soon. Jenious insists the institution is “staying the course in its current policy,” (hopefully) providing both complainants and respondents with due process.
Vanderbilt has been under investigation by the Office of Civil Rights since a complaint was submitted in March 2014. A second complaint was submitted in January 2017. Both investigations pertain to EAD malpractice and are currently still open.
Both students and faculty do not feel they can achieve justice through the current sexual misconduct process. We understand the difficulty of providing evidence (sometimes) in these types of incidents; yet, as survivors have found each other on this campus, we have discovered a lack of accountability for these violations — despite the amount or level of detail in the evidence. Survivors, students, staff, and faculty deeply value the support we receive from our campus administrators at Project Safe, but this support does not always suffice.
Changing our campus culture requires the University to step up and increase accountability. D. Michael Carter and Sandra Keith too frequently abuse their discretion and twist policy terms to not find perpetrators guilty; Anita Jenious fails to act as a Director and Title IX Coordinator should by allowing these practices to take place under her watch. If the administration does not intervene with punishment to remedy this problematic behavior – in the same way Student Accountability and the Honor Council do with students – we will remain in this cycle and prevent progress.
Much has been improved on campus but we can always do more. I, for one, am certainly waiting for more.