By Laurie Babinski
Editor in Chief
Pepperdine University administrators recently decided to withhold information about an on-campus Spring Break sexual assault, despite state and federal laws that mandate the release of campus crime information in daily police logs open to public inspection.
According to Dean of Student Affairs Dr. Mark Davis, the incident, which occurred during the first weekend of Spring Break, was not reported to the Graphic in weekly reports released by the Department of Public Safety because of legal exemptions that allow the university to keep the matter under wraps.
However, that explanation does not appear to be in accordance with federal law mandating the university to report such crimes.
The alleged incident occurred after a group of friends returned to an on-campus residence to watch movies after celebrating a male friend’s birthday, according to the woman involved, who spoke with the Graphic on condition of anonymity.
Intoxicated, she fell asleep on the bed of a man she considered “a good acquaintance” and awoke to find another male acquaintance forcibly fondling her.
“I woke up to find this guy’s hands all over my body, under and over my dress, above and below my waist,” she said.
“I just froze,” continued the student, who attributes her reaction to a rape that occurred when she was 14 years old. “He was drunk, and because I didn’t respond, I guess he decided that it wasn’t a good idea and he moved to the floor.” She then fell back asleep.
The incident was not immediately reported to Public Safety because the woman left town the next morning and, when she returned the next week, took a day to mull over whether to report the incident. She filed a report with DPS the following Wednesday.
The woman then came forward to the Graphic because she knew that other incidents of the same nature were occurring on the Pepperdine campus, but was concerned that students never found out about them.
“If I wouldn’t have been the student involved, I wouldn’t have known that stuff like this goes on on campus,” she said. “The school does not tell us about it. I know that (the university) wants to keep a safe image, but people need to know.”
Graphic editors then discovered that the incident was not reported in the weekly log that is e-mailed to the paper by the Office of Public Relations and News.
The Graphic sent a formal inquiry to Davis about the omission of the incident, citing the federal Disclosure of Campus Security Policy and Campus Crime Statistics Act.
The law, now known as the Clery Act and formerly known as the Campus Security Act, was enacted in 1990 to make more information available to students about criminal activity on college campuses. In 1998, the law was renamed the Clery Act for Jeanne Clery, a murdered Lehigh University student who was killed on campus, a crime her parents believe could have been prevented with the release of campus crime incidents leading up to their daughter’s death.
The act was also amended to require all schools who receive federal funding such as loans or federal work study, to provide an annual statistical report, a daily campus crime log, and “timely reports” regarding crimes that present an ongoing threat to the campus community.
Records of these crimes must be reported in a daily police log, maintained by the university and “written in a form that can be easily understood.” That log must then be made open to public inspection.
For private schools such as Pepperdine, this law and a similar California statute provide the only information about campus crime that students are entitled to.
After the Graphic inquiry into the missing report, the university responded in a March 29 release to the Graphic.
“Based on your inquiry we have reviewed the Campus Security Act in relationship to the particular incident you cited,” the statement said. “When information is withheld, it is based on exceptions allowed under the law.
“It was the professional judgment of DPS that reporting this incident might jeopardize an ongoing criminal investigation,” the university release said.
There are three exemptions to reporting allowed by the act. They are 1) if disclosure of that information is prohibited by law, 2) if disclosure would jeopardize the confidentiality of the victim, 3) if there is clear and convincing evidence that the release of the information would jeopardize an ongoing criminal investigation or the safety of an individual, cause a suspect to flee or evade detection or result in the destruction of evidence.
In 1999, the Justice Department indicated that these exemptions should be interpreted narrowly and that an institution may only withhold specific information re-quired to avoid the above risks. Once the risk has passed, the institution must disclose all information.
The exemption was invalidated when “DPS filed a report with the Sheriff’s department immediately, and the district attorney’s office subsequently declined to prosecute citing a lack of evidence,” the statement said.
The university, however, continued to withhold information about the incident. According to the statement, because the occurrence was not prosecuted, “Consequently, it did not rise to the level of a crime and was not placed on the daily crime log at later date.”
According to the Clery Act, however, any action that would constitute a crime must be included in the daily crime log whether it is prosecuted by local law enforcement officials, campus judiciary, or no one at all.
The eight crimes defined by the Clery Act are sex offenses, robbery, aggravated assault, burglary, motor vehicle theft and arson. The definition of sex offenses is derived from the FBI Uniform Crime Reporting program’s National Incident-Based Reporting System. The definition of forcible sex offenses is “any sexual act directed against another person, forcibly and/or against that person’s will; or not forcibly or against the person’s will where the victim is incapable of giving consent.” The definition specifically in-cludes forcible fondling as part of the sexual assault category.
The incident has not been added to the logs to date, an action that is required within two days of the incident, or two days of release of information that invalidates an exemption.
“There is certainly no reason why this should not be reported under the Clery Act,” said Student Press Law Center staff member Devin Chwastyk, who spoke after consultation with Executive Director Mark Goodman.
Since 1974, the SPLC has been the nation’s only nonprofit, nonpartisan legal assistance agency devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment.
The university, however, maintains that “There was no evidence that the particular incident represented a threat to students which might warrant the issuance of a warning of any kind,” the university statement concluded. “The university is committed to complying fully with the law in all matters. We value our partnership with the Graphic in providing information to the university community that helps us create a safer campus.”
The U.S. Department of Edu-cation can fine schools up to $25,000 per violation of the act.
This is not the first time that the Graphic has debated with the university about the release of Public Safety reports. In 1992, the Graphic cited California Education Code 94380 to question the university’s failure to release all “occurrences” of Public Safety activity. The General Coun-sel’s office acknowledged that the wording of the California law is ambiguous, but concluded that the university is not obligated to release all occurrences reported to DPS.
At the time, the General Counsel’s office concluded that the university is only required to release “occurrences” in five specific areas: “crimes involving violence, theft, or destruction of property, or illegal drugs or alcohol intoxication.”
Since that time, the Office of Public Relations and News has promptly released the Public Safety reports to the Graphic via weekly e-mail. In addition, DPS and the university have been cooperative and open in assisting student media in the vast majority of situations.
But because Pepperdine’s crime reports are compiled by DPS and submitted to General Counsel before being released to the Graphic, there is no way to know how many or what types of incidents are omitted.
The reports have never before been questioned based on federal law, which has been substantially amended since 1992.
According to the student who reported the most recent alleged sexual assault, the male’s discipline is pending a Judicial Review Commit-tee hearing on the incident. For what she called “a stupid decision on his part,” the woman believes that the punishment handed out by the university Judicial Review Committee will be sufficient.
“While I know that he had no right to do it, I also know that he did not do it with malicious intent in mind, that he did it because he was drunk.”
She does, however, want to make sure that the Pepperdine community is aware of the occurrence of sexual assault, and that the victims know that it is not their fault and that they will be heard if they come forward to report cases of sexual assault.
“I think (students) are afraid to come forward, that they’re afraid they’re going to be blamed for it,” she said. “They’re afraid that people are going to say ‘You wore this and you did this and that’s why this happened to you.’ In my opinion, you can’t do anything that warrants someone doing this to you.”
Graphic editors yesterday decided to formally resubmit their request for inclusion of the incident in the Public Safety reports.
April 04, 2002
