Covering Sexual Assault

Louise doesn’t usually remember her dreams. But the day her father was to visit her at college, she woke up, remembering. She had been in the countryside in her dream, and there was a poisonous snake about to bite her dad. She knew then she would tell him she had been raped. She was 19. It would break his heart.

As soon as she started writing, Erin Rhoda knew exactly what the focus of the project would be. Then-editorial page director for the Bangor Daily News in Maine, Rhoda had been contacted a few months earlier by Cara Courchesne, communications director of the Maine Coalition Against Sexual Assault, asking for advice on a media kit the organization was putting together. They started a conversation that ended up with Rhoda and another reporter registering for a 40-hour training offered at night by a local rape crisis organization to learn how to talk to victims of rape and sexual assault.

“It was such an important learning experience for us,” says Rhoda. “Putting ourselves in the community, it brought us down to a place where we could better understand how to write about and frame stories.” Often by the time a victim reports a crime, she learned, little physical evidence remains to prove it occurred. The fear they won’t be believed sometimes keeps victims silent for years. “Not to have any way of proving it adds so much to the hurt,” she says. “We wanted to find a way to make that clear.”

Rhoda brought that concept back to the newsroom, where she and the rest of the staff devised “Proof,” a multimedia story that combines text, photos, graphics, and videos to tell the stories of three rape victims—two women and one man.

Among them is Louise, the woman who agonized about telling her father about her assault. While having drinks at the house of an acquaintance, she woke up to find him on top of her, raping her. “I knew that I had been drugged,” she said. Ashamed, Louise never reported the rape to the police—and only saw a doctor a week after the incident, when physical evidence had already disappeared.

According to one study by the University of Southern Maine’s Muskie School of Public Service, 13,000 instances of unwanted sexual activity occur in Maine annually, but only 3,300 of them are reported to police. In showing the voices and faces of victims, Rhoda and her colleagues hoped to highlight a challenge that bedevils reporters as much as victims: How to talk about something you can’t prove happened? “That’s what makes this issue of proof so important,” Rhoda says. “Because if they can’t prove it, I can’t prove it—but we still have to be able to talk about it. So how do we talk about it?”

Figuring out how to talk about rape and sexual assault is one of the biggest challenges a journalist can face. The lack of proof that accompanies the crime is only one difficulty of covering an issue that is intimate, intense, and emotional for victims. The shame and stigma they feel can make it difficult for reporters to build trust with sources, to properly report on the severity of crimes without being gratuitous, and even to choose the very words they use to avoid injecting bias into the story.

“This is one of the most pervasive forms of violence in our society, and yet it is one that has been historically silenced and carries the greatest stigma for victims,” says Bruce Shapiro, executive director of Columbia University’s Dart Center for Journalism and Trauma. “As reporters, we are confronted not only with the suffering of the survivor, but also our own prejudices and preconceptions, fears, past experiences, and ethical conflicts.”

[pq]The lack of proof that accompanies the crime is only one difficulty of covering an issue that is intimate, intense, and emotional for victims[/pq]

A study released in 2015 by the Berkeley Media Studies Group found more than half of stories focused on a criminal justice milestone, such as the arrest or trial of an accused perpetrator. By contrast, only 6 percent mentioned treatment for survivors, and 8 percent discussed issues of prevention. The report recommends journalists spend more time looking at the “landscape” of sexual violence rather than solely focusing on specific incidents, interview sources outside of the criminal justice system, and look at how victims recover and heal from acts of violence a year or more after they occur. The “Proof” series from the Bangor Daily News is a good example; it includes contact information for a statewide sexual assault hotline and video interviews with victims describing how they began to recover from the pain of abuse.

As high-profile cases of sexual assault continue to make the news with depressing regularity, learning how to cover the issue well is more important than ever. In the past several years, cases like the campus sexual assaults at Stanford and Baylor universities; the 58 women and counting who have come forward to accuse Bill Cosby; and the “Access Hollywood” tape of Donald Trump bragging about committing sexual assault have increasingly made the topic of  national concern. As demonstrated by the Women’s March the day after Trump’s inauguration, there is worry that his administration will roll back women’s rights, including programs and funding aimed at stemming sexual violence.

No story illustrates the pitfalls of reporting on sex assault better than“A Rape on Campus,” by Sabrina Erdely, an article about an alleged gang rape of a student she called by the pseudonym Jackie at a fraternity house at the University of Virginia. The story was published by Rolling Stone in November 2014. Shortly afterward, The Washington Post raised concerns about the story’s veracity, ultimately leading the magazine to retract the story and commission a report, led by Columbia Graduate School of Journalism dean Steve Coll, to investigate its failures. Among its findings, the report determined that Erdely relied almost entirely on Jackie’s version of the story, failing to corroborate it with witnesses or confirm the identity of her attacker, much less interview him. This November, a federal jury ordered Rolling Stone and Erdely to pay $3 million to a University of Virginia administrator who was defamed by the story. The magazine is appealing the award.

“The high-profile failures of the Rolling Stone story might persuade some editors that these stories are risky and we shouldn’t take them on,” says Shapiro. But, he says, “We know how to do hard-hitting, ethical, relatable, fair reporting on sexual assault, and in particular on institutional failures. We need to be looking at examples of how to do it right.”

Thankfully, such examples abound. Exhibit A is “An Unbelievable Story of Rape,” written by T. Christian Miller of ProPublica and Ken Armstrong of The Marshall Project in 2015. The story follows the travails of Marie (not her real first name), a woman in Washington who was raped at knifepoint by an intruder who broke into her home. When she told police, they refused to believe her, charging her with false reporting and criticizing her publicly for perpetrating a “hoax.” Her attacker, meanwhile, moved to Colorado, where he raped several more women before he was tracked down.

Miller began reporting about the work of the Colorado detectives, while Armstrong investigated Marie’s ordeal and the botched investigation by Washington police. The two crossed paths during their respective investigations and, instead of competing, collaborated on a 12,000-word story—a tense dissection of the consequences of sexual assault and its effects on victims, and how police can both succeed and fail in investigating it. The article’s comprehensive approach won it the 2016 Pulitzer Prize for Explanatory Reporting.

Earning the trust of the victim in order to tell the story, however, was not easy. Armstrong wrote letters to Marie  through her attorney for six months before she agreed to an interview. That’s not unusual for journalists approaching victims of sexual assault, who may feel a conflict between wanting to tell their story and shame about exposure. Journalists must carefully think through how to approach a subject—cold calling them, reaching out through an attorney, or contacting them through a family friend who might not even know the assault occurred.

“There is no easy way to approach a victim of sexual assault,” says Miller. “But you can’t let the understandable impulse not to hurt someone interfere with your journalistic sensibilities that this is a person whose story is important, and he or she might want it told.”

For their story, Armstrong and Miller thought carefully about how to keep the focus on Marie’s experience, as she recovered from the trauma of both the rape and the subsequent prosecution for allegedly making a false accusation. Even though it took them another six months to secure a prison interview with her rapist, the reporters only quote him once. And unlike the Rolling Stone story, which opens with a lurid account of the supposed gang rape, the description of the rape only comes at the end of the story. While the details are chilling, the tone is restrained. “We made a very deliberate decision that this is not a story about him,” says Miller.

The writers were particularly conscious of their position as two male journalists writing about violence against women. As part of the writing process, Armstrong and Miller showed drafts of the story to women in the newsroom as well as to women in their families. After some were concerned about the graphic nature of the final scene, the writers prepared an alternative ending. Ultimately, they shared the story with Marie, who felt the scene should stay. While Miller says they didn’t give her veto power over the story, he and Armstrong did feel it was important to get her approval. “This is about one woman’s painful experience, and we were prepared to get to a place where she was comfortable with it,” he says.

Once a victim agrees to participate in a story, journalists must balance their empathy for someone discussing a traumatic experience with an unflinching commitment to verifying facts. Since sexual assault by definition means a loss of control, journalists might consider giving some agency back to subjects by extending more choices than they ordinarily might, such as allowing them to set the time and location for the interview, or to bring a friend or family member.

At the same time, journalists must set ground rules early in the process about the need to ask uncomfortable questions and corroborate aspects of the story through documentation and other interviews. “Survivors need to know that there is no such thing as a risk-free interview,” says Claudia Garcia-Rojas, co-coordinator of the Chicago Taskforce on Violence Against Girls & Young Women and editor of a guide for media on reporting on sexual assault. “Reporters need to know that simply because an individual has survived a trauma doesn’t mean one has to tiptoe around them or not fully disclose what the role of a reporter is.”

[pq]Journalists must balance their empathy for someone discussing a traumatic experience with an unflinching commitment to verifying facts[/pq]

After setting ground rules, reporters and advocates say the most important thing a reporter can do, at least initially, is to actively listen to his or her story without judgment. According to law enforcement statistics, few people lie about having been raped; Jackie notwithstanding, it takes a lot of courage for someone to come forward and tell her story, knowing how much scrutiny she’ll face.

Center for Public Integrity reporter Kristen Lombardi, who in 2009 spearheaded one of the first major projects about campus rape, interviewed dozens of students about their experiences of assault. In each case, she began by allowing them to tell their story beginning to end, with few questions or interruptions. “That way they got their version out and they felt heard and listened to,” she says. Establishing that trust early on, however, also helped in cases when she found omitted or contradictory facts and needed to ask tough questions. “They weren’t seeing me as doubting them necessarily, because we had built up more of a rapport.”

Discovering information that contradicts a victim’s chronology doesn’t necessarily mean the person is lying, since studies have shown that undergoing trauma can distort a victim’s memory. “A survivor may tell a story three different times and each time the details are different because she is trying to recuperate the experience for herself,” says Garcia-Rojas. However, it makes it doubly important that a journalist is not afraid to challenge inconsistencies and point out the moment at which different accounts disagree.

Cases in which an act of sexual assault is in dispute can be among the most difficult for reporters to cover. A rape by a stranger breaking into a home with a knife is the exception; most rape cases involve people who know each other, and sometimes may have had consensual sex before or after an assault occurs. On college campuses, the typical case is confounded by the fact one or both parties are drinking alcohol and memories are incomplete or confused.

Few cases in past years have become more of a flashpoint for controversy than that of Emma Sulkowicz. A Columbia art student, Sulkowicz accused fellow student Paul Nungesser of anally raping her; when Columbia dismissed the charges, she began carrying a 50-pound mattress around campus with her as a senior art thesis—including on stage at graduation in May 2015.

Some commentators, such as Cathy Young writing in The Daily Beast, found her story unbelievable, citing friendly Facebook messages and texts between Sulkowicz and Nungesser that seem to belie her story. “These conversations felt spontaneous and lighthearted without any sign of awkwardness between them,” says Young. “It really completely defied credibility.” Young interviewed Nungesser for her piece, concluding that he was the victim of a trial-by-media after the college had cleared him.

In response, Sulkowicz spoke with Jezebel’s Erin Gloria Ryan, contending that some of the messages had been taken out of context and out of chronology, including some that occurred months before the night she says she was attacked. In annotations to her messages, Sulkowicz contends that she was being conciliatory in order to maneuver him into a conversation about what had happened, and didn’t want to scare him away.

Including details such as those are as essential a part of a journalist’s responsibility as chronicling the events that happened, says Katie Feifer, leader of CounterQuo, a national coalition of groups that works with media to change the way sexual violence is covered. “Her belief or interpretation is another fact that as a journalist you can choose to include or not,” she says. “By not including it, you are coloring the facts in a different way.”

Writing a few months later, The New York Times Magazine staff writer Emily Bazelon tried to weigh the opposing viewpoints of Sulkowicz, Nungesser, and the media interpretations of the case. “I went into that case hoping to find out if Columbia had done its duty or not, but I couldn’t write that story.”  Instead, she ended up writing a candid assessment of her own difficulties determining the truth in the midst of a system that ultimately serves neither accused or accuser. “The swirl of accusations and counteraccusations, and the reaction to them,” she wrote, “reflects the current moment—a transitional period in the evolution of how universities handle sexual assault. It is a moment in which, as the tumult at Columbia shows, we can’t afford to stay for long.”

Exacerbating the situation in those cases is the fact that colleges have their own internal process for investigation, where the conventional rules of evidence may not apply. After investigations by the Center for Public Integrity and National Public Radio found failings by colleges in addressing sex assault, the Obama administration issued a “Dear Colleague letter” in 2011 advising colleges to adopt more rigorous standards in pursuing their own investigations under Title IX, which prohibits sexual discrimination in education.

Among the stipulations pushed by the administration were orders that schools move to investigate claims within 90 days and adopt a standard of “preponderance of evidence” in proving guilt, rather than the higher standard of “beyond a reasonable doubt.” While procedures differ among campuses, some further diverge from standards of a court of law—for example, students may not be allowed lawyers and hearsay evidence may be permitted. That has led a small but vocal group of journalists and advocates for the rights of the accused to charge that the pendulum has swung too far the other way, and there is a rush to judgment that has caused some students to be found guilty of sexual assault despite a lack of evidence.

Under the Family Educational Rights and Privacy Act, schools are expressly forbidden from divulging personal information about students to reporters, making it difficult to tell whether the system is serving the accusers or the accused. “You have a system operating utterly in the dark,” says KC Johnson, whose book, “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” was published this past January. “It can be very difficult to perform the task that journalists normally do to provide an objective viewpoint.”

Reporters investigating these cases are not completely without recourse. There are other ways to corroborate the timeline of a story, including text and telephone calls, posts to Facebook, Instagram, and other social media sites, and friends who may have been told about an attack after the fact. “All of those can be used to get beyond, ‘he said, she said,’” says Feifer.

In addition, transcripts of college disciplinary hearings are often accessible to students who participate in hearings, and are sometimes included in complaints filed to the Education Department under Title IX, albeit redacted to hide the names of the accused. For her reporting, Lombardi had her subjects sign privacy waivers so she could request unredacted Title IX complaints and hearing documents from the schools, arguing it was in their benefit for her to have as complete information as possible.

New York Times reporter Walt Bogdanich won’t say how he obtained the transcript for a school disciplinary hearing at Hobart and William Smith Colleges, a small college in upstate New York, which he makes the centerpiece of his 2014 story “Reporting Rape, and Wishing She Hadn’t.” But the story it reveals is a stinging indictment of the disciplinary procedure, which calls into question whether it is treating either party well.

[pq]Journalists have a role to play in helping the public understand the complexity of sex assault cases[/pq]

First-year student Anna (who agreed to be identified by her first name only) says she was raped by one football player and sexually assaulted by two others, just two weeks into the start of the school year. Based on hundreds of pages of documents, Bogdanich’s story reveals a process ill-equipped to adjudicate the case, with panel members frequently asking disjointed questions and failing to cross-examine the football players about the way they changed their stories over time. Yet, throughout, the story cleaves close to the record, refraining from making an independent judgment about guilt or innocence. “I make it a point not to make a judgment on who’s right and who’s wrong, because I wasn’t there,” says Bogdanich. “I’m more interested in how the university and law enforcement handled it.”

In another story he published in 2014, Bogdanich shows that police may not be any better at investigating crimes of assault. He flew down to Tallahassee, Florida to investigate a case in which a student accused football quarterback Jameis Winston of rape. When he got off the plane, however, he found a message telling him the school was no longer talking, and had cancelled all of his interviews.

During a press conference, however, the state prosecutor made a comment criticizing the police investigation, which he found highly unusual. “I talked to the prosecutor, and boy did he unload,” says Bogdanich, who was able to obtain the police file through Florida’s open records laws. Though the case received endless amounts of publicity, no journalist had taken time to investigate the police record. Bogdanich’s story, “A Star Player Accused, and a Flawed Rape Investigation,” detailed multiple errors and sloppy investigating, including a failure to obtain security camera footage from the campus bar where the student and Winston met that night; and a delay of almost a year before interviewing a key witness.

By examining how rape and sexual assault are handled by institutions including universities, police, and the courts, journalists can shed light on processes that ordinarily operate out of sight of average citizens—yet can have tremendous impact on justice for women and men who have been subjected to sexual violations.

That debate is likely to intensify with the new administration. Education Secretary Betsy DeVos in her confirmation hearing did not commit to keeping the current standard of evidence in campus sex assault disciplinary hearings. She has donated funds to an advocacy group that sued the U.S. Department of Education, arguing that the current standard violates the due process rights of the accused.

Journalists have a role to play in helping the public understand the complexity of sex assault cases. Their examination of cases, in turn, can inform debate over how to create a system that is fair for all involved.