Friend or Foe

In an era of hooking up, when does a date become rape?

Later that day, Mike received a letter from Anne Hudgens, CSU's director of judicial affairs, who works in the office of the vice president for student affairs. Hudgens's letter advised him that he was under investigation for sexual assault and underage drinking by campus authorities, and that he was to have no contact whatsoever with Sarah or his roommate. It further stated that he must remove his belongings from the dorm and turn in his key no later than 5 p.m. the following evening, October 4.

Mike was restricted to a single cafeteria for his meals and banned from all residential halls; the letter recommended that he contact a student-affairs assistant for help in finding a hotel room. (Mike ended up staying at his fraternity.) A disciplinary hearing on the rape accusation was set for October 18, the letter concluded.

As Mike was moving out of his room, Swenson was conducting a more in-depth interview with Sarah. After Sarah mentioned the cyberporn, Swenson obtained another search warrant and confiscated Mike's computer.

Geoffrey Grahmn
Mike Kochevar recovered his belongings from CSU last week, after the district attorney declined to press charges.
Anthony Camera
Mike Kochevar recovered his belongings from CSU last week, after the district attorney declined to press charges.

Swenson submitted a report on his investigation to Hudgens on October 8. In it, the lieutenant is clear about whose story he believes. (Swenson did not talk with Mike firsthand; soon after he learned of the accusation, Mike contacted an attorney, who advised him not to talk to Swenson.) When he asked Sarah to respond to Mike's recollection that she instigated the sex that evening, the lieutenant says, "She looked me in the eyes and stated that was absolutely not true." Swenson concludes his report by stating, "I noted that Sarah had been completely honest with me."

By comparison, after interviewing another woman with whom Mike had had sex and who had nothing particularly bad to say about him, Swenson seems skeptical. "She continued to maintain that her sexual contact with Mike was consensual," he writes. "Throughout the interview...I had an uncomfortable feeling that the truth might not be coming out. The interview ended with this feeling still present."

Swenson says that Mike's case resembles many that he has investigated in the past. He also is convinced of Mike's guilt. Although he does not cite specific evidence, Swenson does say he gives heavy weight to how the woman behaves after an attack: "What does the victim do after the incident? What are her actions following the assault? Does she run out of the room, leaving clothes behind? Do her grades tumble? Does she have psychological problems? What does she say to the outcry witnesses?"

Just because a university student is accused of raping another student doesn't mean he'll be charged with that crime -- not in a court of law, at least.

Although Swenson and the other officers on the CSU police force are campus cops, they're also real police officers, empowered to present criminal cases directly to the Larimer County District Attorney's Office. Last week, the DA declined to press charges against Mike Kochevar at the request of the victim, Swenson says.

But Mike's already been tried according to the CSU student code, outlined in an agreement every student signs when he begins taking classes at the university.

In a criminal case, the facts are considered in court by a judge and jury. Before convicting a defendant of a crime, the jury must conclude, unanimously, that he is guilty "beyond a reasonable doubt."

At CSU, by comparison, an accusation is turned over to the director of judicial affairs, who schedules a hearing. The school has seven hearing officers, although a core group of three handle the more serious allegations. If necessary, after receiving the campus police report, a hearing officer may conduct additional investigative work prior to the hearing.

At the hearing, a defendant is permitted to bring a single advocate, to call witnesses and to submit testimonials in his behalf.

After listening to both sides, the hearing officer renders a decision. Compared to criminal cases, though, the school's standards for considering evidence and determining guilt are much less rigorous. Hearsay evidence is commonly admitted at student hearings, for example. And the test for determining guilt is merely "a preponderance of the evidence."

"If she believes one side 51 percent and the other 49 percent, that is the way the decision must go," Swenson explains. "So obviously, the burden of proof is much less, and a conviction is much easier to attain."

The difference between the two codes -- student and criminal -- shows up in comparative conviction rates. Swenson investigates about two dozen alleged sexual assaults every school year, divided between "forcible" (forced acts of sex), "non-forcible" (inappropriate touching and harassment) and "other," such as Peeping Toms. Last year, twelve CSU students reported forcible sexual assaults -- up from five the previous year and just over 1998's ten cases.

His conviction rate in the student judicial process is "very close to 100 percent," Swenson says. But only about two-thirds of the sexual-assault cases he investigates are accepted for prosecution in criminal courts.

If the evidence at the disciplinary hearing supports the allegations, the hearing officer hands down a disciplinary action. At lower levels, sanctions range from "no action" to warnings and various levels of probation. If a student is found guilty of more serious offenses, such as sex assaults and other violent acts, he can face suspension (separation from the school for a set period of time, usually a semester); dismissal (kicked out with specific conditions for a return, generally counseling of some sort); or expulsion (kicked out forever).

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