FERPA exception

A federal law that the College of Charleston says requires it to withhold certain student information in connection with a recent allegation of sexual assault includes an exception for violent crimes, an expert said.The school denied The Post and Courier’s request for the names of the suspects in an April allegation against four baseball players and for the results of their disciplinary hearings.Such documents could help explain why the school police force chose not to pursue charges in the case and how the school approaches internal reprimands against students. The school has said that the four suspects were found in violation of student conduct codes, but it has not discussed the students’ sanctions.Attorneys for the college argued that the Family Educational Rights and Privacy Act, or FERPA, guards certain student data from release.But Daniel Carter, director of the 32 National Campus Safety Index, said an exception to the federal law allows schools to release the information when it’s connected with investigations of violent crimes, including all sex assaults.The law does not require schools to disclose the data, but they should provide specific reasons if they decide not to, Carter said. “They can’t say it’s protected information,” Carter said. “I don’t believe it’s appropriate for them to hide behind the federal law when there’s a finding of responsibility.”The Post and Courier has filed several FOIA requests since the criminal investigation into the case closed Nov. 9. Those remain pending.The exception to FERPA follows:An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required ... if the disclosure ... is in connection with a disciplinary proceeding at an institution of postsecondary education.The institution must not disclose the final results of the disciplinary proceeding unless it determines that ...The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; andWith respect to the allegation made against him or her, the student has committed a violation of the institution’s rules or policies.Definitions of information to be disclosed:Final results: decision by entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed and any sanction imposed by the institution against the student.Sanction imposed: description of the disciplinary action taken by the institution, the date of its imposition and its duration.Violation committed: institutional rules or code sections that were violated and any essential findings supporting the institution’s conclusion that the violation was committed.

When a charge against the man accused of sexually assaulting her was dropped, a College of Charleston student started thinking that everything she had been through was wasted.

She had answered questions from investigators that, she said, “turned everything around on me.”

She had coped with insomnia and depression.

She had failed a math class.

But prosecutors said her case wasn’t provable in court. After the incident on the campus in fall 2011, she sent text messages to the suspect that dismissed their encounter as a drunken romp that “we wouldn’t have done if we were sober,” according to prosecutors.

While the 19-year-old student and her mother cling to hope that a criminal charge will be revived, they aim to encourage improvement of the school’s handling of on-campus sex assaults. Both filed written complaints to the governor, alleging shortcomings by the school and by prosecutors.

The duo also has reached out to the family of a College of Charleston softball player who accused four baseball players of sex assault earlier this year.

Last week, The Post and Courier first reported the case that ended with internal disciplinary action but no arrests.

A criticism from the families in both cases centers on whether a law allowing campus police to control sex assault investigations is in the alleged victims’ best interests. Such a commanding role creates at least a suspicion of bias, they argue.

“We can’t change what happened to her, but we certainly can do something if we all come together,” said the mother of the student from the fall 2011 incident.

The Post and Courier does not name alleged victims of sex crimes or their family members.

“We have to make a stand,” she said. “They need to make changes.”

The school and prosecutors have pointed to weak evidence and credibility issues that prevented success in the courtroom.

College officials said they are mindful of concerns from the accusers’ families and insist that they offered “many levels” of assistance after the incidents, said Mike Robertson, the school’s senior director of media relations. They said no changes in procedure need to be made.

“In any case involving sexual assault, we strive to treat students and parents with dignity, compassion and respect,” Robertson said, “and answer all questions as completely as we are able.”

Contrary evidence

On Oct. 22, 2011, a College of Charleston student drank alcohol at a Halloween party on King Street.

A young man the student knew from her hometown had invited her and a friend to the party. She later said the man previously expressed a desire to date her, but that she had brushed off his advances.

About 1 a.m., she returned to Berry Residence Hall, which houses 636 female students. She reported that the man begged her to let him stay because he had nowhere else to go.

The woman’s mother said a police officer manning the entrance should have noticed that her daughter was too drunk to have visitors. The officer, she said, should have made the man leave instead of checking him in.

Throughout the evening, the woman said she was assaulted in her bed despite her attempts to deflect the man’s advances.

The woman tried to forget about the ordeal, but she couldn’t shake the memory. She reported it to campus authorities after Thanksgiving.

Two weeks later, the school’s Department of Public Safety arrested then-20-year-old Diego Landa-Bonilla of West Ashley on a charge of third-degree criminal sexual conduct.

But the case was weak, prosecutors said, and the charge was dropped in June. The Post and Courier identified Landa-Bonilla because he has expressed a wish to clear his name publicly.

In his written explanation of the dismissal, which was obtained through an S.C. Freedom of Information Act request, Assistant Solicitor Timothy Finch noted statements from the student that “would fill jurors’ mind with reasonable doubt.”

A month before the incident, a Facebook conversation between her and Landa-Bonilla set the stage for a consensual encounter, Finch wrote. The student said in the messages that she was “sometimes” attracted to Landa-Bonilla and that “maybe one day” they would take their relationship to the next level.

On the morning after the incident, Finch added, the student allowed her alleged assailant to remain in bed for three hours. That “laissez-faire attitude” isn’t what you would expect from a sex assault victim, Finch said.

“We were both drunk, and we wouldn’t have done that if we were sober,” she later wrote in a text message, according to Finch’s letter.

“Whatevs. Let’s just not talk about it again.”

In letters to Gov. Nikki Haley and President Barack Obama, she also wrote that her accused assailant said: “That was wrong of me. … But I’m not going to lie. I enjoyed it.”

But she hadn’t told prosecutors about those comments, which Finch said “presents an inconsistency that the defense would easily highlight.”

What’s right

The prosecutor’s explanation didn’t sit well with the student’s mother.

She and her daughter wrote to the Crime Victims’ Ombudsman, which is part of the governor’s office, and called for an investigation into why prosecutors refused to send the case to a grand jury.

Their written complaints describe a litany of concerns about how prosecutors, police and the school handled the case.

They list no specific accusations of wrongdoing, but they point out what they considered a lack of diligence and compassion by authorities.

The ombudsman’s office declined to discuss the case, citing a law preventing public comment.

“It felt as though the detectives turned everything around on me … as if I were the one who had raped someone,” the student wrote. “This was a very difficult thing to go through, as it was already hard enough finding the courage to press charges.”

Her mother asked the school to make policy changes requiring dorm visitors of the opposite sex to stay in the building’s common areas.

She also called for better freshman orientation dealing with sex assault awareness.

“I don’t feel they’re looking out for the students,” the mother said in an interview. “I don’t feel they’re going to do what’s right by the students.”

Not the intent

In two reports of sex assault at the College of Charleston during the last year, the accusers’ families have questioned whether campus police was equipped to investigate.

They also have faulted the school for not having a female investigator handle the accusations.

School officials argued that it’s their protocol to send a policewoman, but one is not always available. The school has one female investigator who was promoted to that position in July, after both the allegations surfaced, school spokesman Robertson said.

“If a female investigator is not available to conduct the investigation,” he said in a statement, “a male investigator is assigned.”

Central to the families’ complaints is a 5-year-old law that the school said had charged its own police force with controlling all investigations into sexual assaults reported on campus.

Legislators and experts with knowledge of the Jessica Horton Act have said it was not the law’s intent to require the school’s police — rather than a local city agency — to serve as the primary investigator. Some college police agencies are not qualified, they said, and some other schools do not have their own departments.

Instead, schools should work with outside agencies that have more expertise in sex assaults, they said.

Daniel Carter, director of the 32 National Campus Safety Index formed after the Virginia Tech mass shooting, helped draft legislation in Tennessee that he said served as a model for South Carolina’s law.

The Tennessee version, he said, arose after a student died on a college campus under suspicious circumstances. Campus police officers initially assumed that the case was a suicide, and they destroyed evidence that might have proved otherwise, he said.

Ensuing legislation was designed to ensure that the best resources from multiple agencies are used in future cases, Carter said.

In sex assaults, the law suggests, campus police should lead investigations because, he said, they often deal with such crimes and are more sensitive to victims. Many times, investigating sex assaults is not a question of forensics, but of “sensitivity to the issue,” he said.

But the aim was not to remove the responsibility from agencies that handled investigations before the law was passed, Carter said.

“The intent never was to cut out any agency from the process,” he said. “That’s not a true joint investigation. That’s not what was envisioned.”

Reach Andrew Knapp at 937-5414 or twitter.com/offlede.