Pursuing Justice Where Lies Vanish
One Survivor’s Story Reveals Institutional Breakdown at the University of Virginia
"University of Virginia Lawn" by Vironevaeh is licensed under CC BY-SA 2.0
When a student matriculates at the University of Virginia, she signs the Honor pledge, promising not to lie, cheat, or steal. She completes a module designed to help prevent harassment and violence in the community. Some students will lie anyway, and they may answer to the Honor System. Some of the unprevented sexual assaults and other acts of gender-based violence will be adjudicated by the University’s Title IX program. When functioning separately, Honor and Title IX’s respective policies and procedures can lead to just outcomes. But when a student is accused of sexual assault and then allegedly bears false witness during the Title IX investigation, the situation engages both policies. Honor and Title IX’s interactions reveal a judiciary pothole into which certain alleged lies know how to vanish.
I recently spoke with a woman named Katherine who unsuccessfully pursued justice through Title IX and Honor after a resident advisor reported her sexual assault earlier this year.1 She believed she had enough evidence to prove to Title IX — and later to the Honor Committee — that Isaac and his friend, neither of whom responded to a request for comment, provided false information during their investigation. According to Katherine, Isaac had not been sober and his friend had not been a witness to the events of that night. After reading Isaac’s account in the Title IX Draft Report — a document which summarizes the information which the investigator gathered but does not include her recommended findings — Katherine and her lawyer submitted additional evidence and comments refuting Isaac and his friend’s testimony. Nevertheless, Katherine said that Title IX favored Isaac’s version of events to hers and recommended a finding of nonresponsibility in the Final Report. Although an investigator’s decisions in Formal Resolution proceedings can be challenged, doing so would have required Katherine to fly back to Charlottesville over the summer and, in her words, “stand in front of a panel, in front of my lawyer, in front of him, in front of his advisor, and try to justify my actions and justify why I’m right.” Katherine ultimately decided against appealing Title IX’s decision, explaining, “I made a promise to myself way, way in the beginning of this whole process. I said, ‘If I ever feel like I am sacrificing my dignity, my grace, or my integrity, I’m not proceeding.’ And when I thought about contesting it, I felt like I was sacrificing that.”
Katherine returned to her parents’ home for the summer and considered withdrawing from the University. It was her father, a University alumnus, who suggested that Katherine report Isaac and his friend to the Honor Committee. Katherine was unsure if she wanted to go through another institutional process, but told me, “By the end of the summer I had gone through a lot of healing… I had done a lot of internal work and I felt like I [could] handle going through this again. I [felt] strong enough to do that.” Katherine submitted an online inquiry to the Honor Committee and received an email from the Vice Chair for Hearings shortly thereafter, informing her, “If you believe that the conduct in question constitutes an Act or Acts of Lying, Cheating, or Stealing, you may report such conduct to the Honor Committee.” She did.
When Katherine met with her student advisor for the Honor process, it was her understanding that Honor could take the case as long as it did not re-litigate the incident itself. Katherine recalls her advisor, who decided against participating in this story, saying that Katherine had “a really strong case because [she had] material evidence, plus witnesses to back up what [she was] saying and [she had], in writing, [Isaac and his friend] lying. There’s no question of whether or not they said what they said … because it’s in the Title IX transcript.” Katherine received further affirmation that Honor could investigate her case the next day. “I’ve just spoken with our [Executive Committee] Chair and Special Assistant about the unique nature of this case and how it would interact with the Honor process,” Katherine’s advisor wrote in a follow-up email. “Everything I mentioned yesterday still applies.” At that point, Katherine formally reported the alleged Honor offenses, submitted her evidence, and provided her testimony. “I felt it was the best thing to do for me, to try to get justice this one last time,” Katherine told me. After two weeks passed without any communication from the Honor Committee, Katherine texted her advisor for an update.
“Exec had been working through some jurisdictional issues which is why it’s been on hold for a week or so,” Katherine’s advisor replied.
“So exec is deciding if they want to proceed with the investigation or not?” Katherine asked.
“Honestly I am unsure exactly what they are deciding. They are working with our legal advisers and title IX to make sure that we are able to process this case as is/if anything needs to be ruled out of scope due to title IX regulations.”
The next evening, Katherine received a brief email from the Vice Chair for Investigations, saying, “Due to the Title IX issues implicated in your report, the Executive Committee has decided to drop the case.” The email thanked Katherine for her commitment to the Community of Trust and invited her to provide feedback on a linked form. The case was closed, and Katherine had exhausted all of the University’s institutional processes that could have addressed her reported sexual assault.
Katherine believed that the Executive Committee’s decision reneged on the agreement they made when she made her reports.
“I didn’t think this was going to be an issue,” Katherine texted her advisor that night.
“Me either,” she replied.
Katherine’s advisor scheduled a meeting with the Chair of the Executive Committee, Lillie Lyon, to discuss the decision. Lyon neither confirmed nor denied the contents of the meeting, citing its ‘confidential nature.’ Katherine left the meeting under the impression that the Executive Committee did not intend to adjudicate Title IX-related cases in the future, even though Honor’s bylaws did not have any written guidelines informing the decision. “If they knew the horror and the hell you have to go through [to report], I don’t think [the Executive Committee] would have made the decision that they did,” Katherine said. “They obviously don’t know what it’s like to be in my shoes.”
As Lyon declined to comment on the meeting, it is uncertain whether the Executive Committee closed similar cases along with Katherine’s in October. To our knowledge, Honor has not successfully adjudicated an alleged Honor offense arising from reports of sexual misconduct in their five-year relationship with Title IX.
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After learning from Katherine that Honor’s Executive Committee might expect Title IX to investigate traditional Honor offenses that occur within sexual misconduct investigations, I asked Emily Babb, the University’s Title IX Coordinator, how Title IX addresses issues of lying during formal investigations. She replied in an email, saying, “I can confirm that the University offers a comprehensive and fair Title IX resolution process.” According to the Title IX Policy, University students who testify in formal investigations do so under the Honor Code. Section XI of the Title IX Policy, which stipulates each participant’s “obligation to provide truthful information,” reads:
“Submitting or providing false or misleading information in bad faith or with a view to personal gain or intentional harm to another in connection with an incident of Prohibited Conduct is prohibited and subject to disciplinary sanctions under the University’s Honor Code.”
Lying may be prohibited under Section XI, but the Policy doesn’t actually provision sanctions for students who lie during their investigations. Instead, Title IX outsources all disciplinary action for Section XI violations to the Honor Committee. Yet if Honor’s Executive Committee decided to drop all pending cases relating to Title IX then, as local attorney Palma Pustilnik observed, “That’s a problem.”
Outside of the Honor Code, Title IX has no testimony verification system; rather, the threat of the Honor Code is Title IX’s testimony verification system. Pustilnik described the informal measures which Title IX Investigators may apply to choose between witnesses’ contradicting accounts, saying that the official examines all the evidence that the parties provided and then privileges the information that is most consistent with her other findings. According to Pustilnik, the Title IX Investigator uses her knowledge and experience as an attorney to discern rehearsed or corroborated testimonies. “The most obvious tells would be if they’re using the same phrases or the same word or words that are not ordinarily in their everyday language,” Pustilnik said. Pustilnik expects the Investigator to account for testimonies of this kind when recommending an outcome. When asked if Title IX had measures in place to address consistent information that might not be true, Pustilnik replied in the negative, but said, “This is an Honor-governed process and all witnesses are told that they’re not supposed to discuss their testimony or the questions asked by the investigator with anyone else.” Pustilnik was Katherine’s legal aid during the Title IX investigation, but was not involved in the Honor proceeding.
Although there is a strong case to be made that no student-run honor system is equipped to adjudicate matters relating to sexual violence, this University’s Title IX Policy is not prepared to independently address issues of lying in its own investigations, either. When I asked Babb to comment on Honor’s potential policy change, she said in her email, “We plan to review and make changes, as appropriate, to our Title IX Policy and Procedures when the new regulations are issued.” But if the Policy were revised to accommodate a new arrangement with Honor, it would be unprecedented. Babb told me that Title IX’s “process and policies with respect to these matters [between Title IX and Honor] have not substantively changed since 2015.”
Section XI claims that students whose lies go undetected by the investigator are adjudicated under the Honor Code, but the Honor Committee doesn’t have a Section XI equivalent in its governing documents. Which is, again, a problem — but not one which the Honor Committee is necessarily obligated to address. At no point do Honor’s governing documents acknowledge their jurisdiction over Title IX, much less mention Section XI. The Honor Code doesn’t provide instructions on how to process issues that don’t correspond with written rules, either. In the absence of written guidelines governing Honor’s relationship with Title IX, decisions of how to process cases relating to Title IX have fallen to the discretion of the five members of the Executive Committee.
It is plausible that the Executive Committee concluded that a student group should not be responsible for matters relating to sexual violence and planned to leverage new legislation that would press Title IX to assume full accountability for their own process. Neither the Executive Committee members, nor their faculty advisor, personally responded to a request for comment. The statement on Executive Committee’s collective behalf reads:
“The Honor Committee does not currently have a formal policy addressing whether and when it will accept jurisdiction over reports arising out of Title IX proceedings. The Committee is working to set such a policy that harmonizes and respects the integrity of both processes. The Committee's ultimate decision, and any related changes to its By-laws, will eventually be discussed publicly during a Committee meeting and reflected on the Committee's website.”
Stephen Paul, an Honor Representative from the School of Law, also confirmed that the full Honor Committee is deliberating its jurisdiction over Title IX and a potential change in Honor’s bylaws. “These are formal conversations, and the Committee is working hard to address this pressing and important issue,” Paul said in an email.
Because the Executive Committee dropped Katherine’s case instead of placing it on hold until the full Committee could vote on the matter, its status, and the status of an unknown number of cases like it, will remain unchanged regardless of Honor’s decision. Moreover, as neither institution has acknowledged its jurisdiction over allegations of lying that occur during Title IX investigations, the Executive Committee has been able to dismiss cases like Katherine’s without public input for the past five years. If Honor votes to accept the jurisdiction, major structural reforms of the system and its bylaws would be imperative to synchronize the relationship with Title IX and curtail the Executive Committee’s power to privately drop cases. However, the Committee’s decision to drop Katherine’s case seems to signal a plan to return all Title IX-related matters to Title IX. If Title IX were to be made responsible, the office must remodel Section XI of their Policy to accommodate a concrete and clearly defined process for both recognizing false information and sanctioning students who willfully proffer it. Until both institutions make necessary changes, reports like Katherine’s will continue to slip through the policies’ cracks, and students who are accused of providing Title IX with false information will be left unsanctioned at the University of Virginia.
“There are so many acts of injustice throughout this process and I don’t want someone to ever have to go through what I went through again. It doesn’t have to be hell. It doesn’t have to be this hard,” Katherine said. “I really thought Title IX was on my side. I thought Honor was on my side. It’s not like that. And I thought it was, but it’s not… And now since I don’t foresee any legal justice coming out of this, I feel like the next best thing is to talk about it.”
1. The name of the survivor and the names of those who could be used to identify her have been changed.