University of Montana President Royce Engstrom has insisted repeatedly that UM did nothing wrong when a dean informed a Saudi exchange student that another student had accused him of rape.
The university didn’t notify police. The man fled the country.
Painful though that scenario is, UM administrators say the confidentiality required by federal law and the university’s Student Code of Conduct, under which the woman made her report to then-Dean of Students Charles Couture, left them no other choice.
“The communication by the university was done when it should have been done and in the right sequence of events,” Engstrom said at a public forum after the incident.
But months before the incident with the Saudi student, UM legal counsel David Aronofsky received an email about how universities might deal with such situations.
He’s on a listserv for the National Association of College and University Attorneys, a group that addressed a similar scenario last year.
The NACUA email – its subject line, “Reporting of student sexual assaults to campus and local police” – came in response to a request from an anonymous association member.
“In situations where a student reports a sexual assault to campus officials but insists he/she does not want the school to notify campus police or local police of the assault or to investigate the report, we do not report to the local police. What do you do in such a situation?” the member wrote.
“Check your state statutes regarding misprision of felony, i.e., having knowledge of a felony but failing to report it,” NACUA advised.
“Misprision laws confirm that no person, not even a victim, has a prerogative to remain quiet when doing so places others at risk of victimization by felons. On what ground would the institution surrender to the victim the decision about the measure that should be taken to protect others against future assaults?”
Montana has no specific state law on misprision of felony.
The Missoulian obtained that email and others late Thursday afternoon as part of a Freedom of Information Act request filed jointly with the Wall Street Journal.
Earlier this month, the U.S. Department of Justice announced an investigation into how the university, campus police, the Missoula Police Department and the Missoula County Attorney’s Office handle sexual assault cases.
When questioned about the NACUA email Friday, Aronofsky said at first that he’d received it after reports of incidents involving the Saudi student. On Feb. 10, the same night of the alleged rape, the man allegedly attacked another student, forcibly kissing her before she escaped through a window, according to the woman’s account in the Montana Kaimin, UM’s student newspaper.
The woman who said she was raped told Couture about it on Feb. 17. Later that same day, the university sent out a federally required campuswide “Public Safety Notice: Sexual Assault,” even though ever since UM administrators have steadfastly refused to characterize the first incident as any type of sexual assault.
As to the NACUA listserv email regarding such incidents, Aronofsky actually received it last June, eight months before the allegations were made against the Saudi student.
Either way, Aronofsky said that the incident involving the first woman clearly involved a misdemeanor allegation – “and when the second incident occurred, it would not have been presumptively a felony, either.”
“She didn’t get raped by that Saudi student,” Aronofsky said Friday. “It was an attempted sexual assault.”
The woman told the Kaimin that the man forced her to drink something that made her sick and barely able to move. Then, she told the Kaimin, he “then grabbed a condom and proceeded to rape her as she yelled at him to let her go.”
UM has a memorandum of understanding with the city dating to November 2011 that gives the Missoula Police Department jurisdiction over all felonies on campus. Aronofsky said that memo was updated in February, after the allegations about the Saudi student.
But, he said, “frankly, if a victim says I don’t want this brought to police, we’re going to honor that.”
Engstrom said after the incident that “as is required by federal law, the university cannot and did not release the names of alleged victims or perpetrators to police.”
As to the NACUA advice that withholding such information could endanger others, Aronofsky offered some legal nuances Friday.
“Silence is not a violation,” he said. “Only active obstruction” is a violation. “Only deliberate concealment from law enforcement.”
But, he added that “as of Feb. 28, we’ve shifted our approach to this based upon changes in FERPA,” the federal Family Education Rights and Privacy Act.
The university’s failure to notify the Missoula Police Department about the alleged rape was the subject of several emails obtained by the Missoulian.
Missoula Mayor John Engen emailed Engstrom and Foley about 6:30 p.m. Feb. 17 – about an hour and a half after UM sent the campus alert about sexual assaults:
“I just spoke with Assistant Chief Brady, who is quite concerned, as am I, that two alleged sexual assaults reported to the Dean of Students have only now been reported to us through an e-mail notification,” Engen wrote.
“In this case, it appears that two alleged sexual assaults are linked to a single suspect whom the Office of Public Safety had in custody and cited on a misdemeanor minor-in-possession charge. Both of the assaults appear to have happened off campus and should have been immediately reported to the Missoula Police Department,” he wrote.
In fact, they occurred in a residence for international students. UM has more than one such residence.
“I hope that the Dean of Students feels some obligation to report the crimes to us so we may engage in an appropriate, professional criminal investigation,” Engen wrote. “While we understand that there are implications for the suspect based on the student code of conduct, that investigation ought to take a backseat to a criminal investigation of an alleged sexual assault.”
Engstrom would later say that “the University and the Missoula Police Department were in communication that day.”
The woman who alleged she was raped did not make a formal report to Missoula police until a few days later, by which time the Saudi man had left the country.
On Feb. 29, Board of Regents Chairman Clayton Christian sent an email to the rest of the board disabusing members of the notion that the university “somehow blundered the reporting, which allowed him time to escape. Confidentially – the police knew exactly where the alleged perpetrator was right up until he boarded a plane – what they didn’t have was all the pieces they need to charge him with a crime.”
“That’s not true: no, no, no,” Assistant Police Chief Mike Brady said Friday.
Police immediately began trying to find the man after the university put out its sexual assault warning on Feb. 17. But they didn’t realize he’d left the country until after his alleged victim filed her police report, he said.
Community outrage over the incident was significant, especially given that it followed by only about two weeks a report stemming from a lengthy investigation into the issue of sexual assaults involving UM students.
That 4 1/2-page report, for which UM paid former Montana Supreme Court Justice Diane Barz $150 an hour, determined that “the UM has a problem with sexual assault.”
The same day Christian sent his email to the regents, Engen held a joint news conference with law enforcement and university administrators to announce an initiative encouraging sexual assault victims to call 9-1-1.
“We’re creating an environment,” the mayor said then, “where reporting the crime of sexual assault is always the correct, safe choice.”
Reporter Gwen Florio can be reached at 523-5268, firstname.lastname@example.org or @CopsAndCourts on Twitter.