Friend or Foe
The Kochevar family has always been close. Even after her son Mike left for Colorado State University this past August, Beth Kochevar still counted on hearing from him every day. So when she didn't speak with him at all in the first few days of October, she grew concerned.
"Mike wasn't returning my calls," Beth remembers. "I kept calling and leaving messages. Finally, I called early on Sunday morning, because I figured that was a time he definitely would be in his room. His roommate answered the phone. I asked him where Mike was, and he said, 'I can't talk about it.'
"So then I called security, and they did what's called a 'well-student check.' About thirty minutes later, a Lieutenant Swenson from the campus police called me back and said Mike was in trouble, and it was serious, and that he was being investigated for a crime. He wouldn't tell me anything else, so finally I said, 'Is he in jail?' and he told me no. It was a mother's nightmare. Eventually he told me to try calling the Delta House, Mike's fraternity. He was there, and I asked, 'What's going on?' And he told me."
Mike had been accused of raping another student.
Beth is the mother of a daughter, too, and so when her son told her this, she wasn't at all certain what to think or how to feel. She passed through all the stages of grieving within a matter of hours. "My first reaction was, 'Oh, my God, you need help,'" she recalls. "I thought, 'How could you do this?'" But then she thought again about her son and wondered: Does he need a lawyer? A therapist? What do I have to do to get him some help?
Being a single parent has made Beth a chronic worrier, particularly when it comes to her son. And she began to worry all the details of the alleged rape out of Mike. The more she heard, the more confused she became. If what Mike said was true, this "rape" was a very different crime from the definition she'd grown up with.
Beth is not a prude -- "I grew up in the era of hot pants," she says -- but she didn't know what to make of this situation. The young woman accusing her son of a forcible sexual attack was one of his best friends at CSU. On the night in question, she'd gone to bed with him -- in fact, it had been her idea. And it wasn't the first time that the two students had shared a bed: They'd slept together a half-dozen times before. On this particular night, the girl had undressed, crawled into bed with Mike -- and an hour later accused her son of rape.
Beth has always believed that consequences need to follow actions, and she has tried to teach that to her children. A few years ago, when Mike was working at a store in a Westminster mall, some of his football buddies stopped by. Knowing that a friendly face was watching, several of them winked at Mike as they walked out wearing new shoes -- shoes they hadn't paid for. Mike didn't report the theft, but a security camera picked up the crime. When Beth found out about it, she made sure that Mike worked three jobs to cover the debt. Eventually, he repaid the store $1,500.
Now Beth wondered if she really knew her son. She found her unconditional love for him running up against her belief in right and wrong. "If he did do it," she remembers thinking, "I didn't want to say, 'I believe you' and then stand by him blindly and get suckered in. For me, it was critical that I get the truth so I could respond in the right way. He kept asking, 'Do you believe me?' And I wouldn't say yes or no."
Mike is big, about 6' 1", a very solid 180 pounds. His body has lost some of the thickness it had when he captained Pomona High School's varsity football team as a linebacker last year; he has since attained a different kind of fitness.
After his last football season ended, a friend dared Mike to show up for cheerleading practice, and he liked it. He also was good at it. And because so few men participated in cheerleading, Mike found himself in demand when it came time to apply to colleges. So in August, he joined CSU's cheerleading squad, one of nine young men on a team made up mostly of women.
For Mike, one of the oddest aspects of the whole mess in which he's found himself is that it involves a woman. "I grew up with women," he says. "That's who I know and who I most hold in regard: my mom, my sister and my grandma."
The only man in his life walked out when Mike was just a few weeks old. Although Mike never knew his father when he was growing up and was a teenager before he finally met him, his father has nevertheless exerted a powerful influence on him, defining him like an invisible current. "I always wanted to be better than him," Mike says. "I am who I am because of my dad -- not so much of what he did do, but because of what he didn't do. I was going to be better."
After learning that his father had played a year in the pros, Mike was drawn to football. "But if he had played in the pros for one year," Mike says, "I'd play for five. That was always on my mind whenever I lifted weights or practiced."
Early on, Mike also swore that he wouldn't make the same mistakes his father had. Where his father had been irresponsible, Mike would be the opposite. "So I didn't go out partying in high school," he says. "If a dance got out at 12:30, I'd be home at one.
"And I had heard from my mom how he had treated her," Mike continues. "And I vowed never to treat a girl like that."
Mike met Sarah on the first day of school. They lived a building away from each other in a series of three-story, modern-looking dormitories to the south of the CSU football practice field. Sarah's roommate and Mike's roommate had gone to high school together; early in the semester, the four became acquaintances. Mike and Sarah took an instant liking to each other. "He seemed like a nice guy -- carefree and kind of fun," Sarah says. "When I came here, I didn't know anybody." Within a week, they'd slept together in Sarah's room. (Sarah's name has been changed for this story. The following account is derived from interviews with Mike, Sarah and other students and signed statements and recollections from witnesses and acquaintances of Mike and Sarah's, as well as police and CSU administrative reports.)
Looking back, as they have been forced to do in detail, both Sarah and Mike agree that Sarah invited Mike to sleep in her dorm room. Yet what constituted "sleeping over" was confusing from the start. In their separate accounts of that first encounter, both say that they kissed. Mike also remembers performing oral sex on Sarah and that she manually stimulated him. Two months later, however, Sarah cannot recall anything other than the kissing. "I never did anything to him," she says. She remembers feeling uncomfortable, but she didn't say anything that would lead Mike to stop. According to her, "The whole thing just kind of happened."
The next day, Sarah says, she told Mike that she had no interest in him sexually, that she just wanted to be friends. And indeed, they seemed to think of each other as friends. Mike's dorm mates remember Sarah coming over to his room several times a week. "Mike and Sarah always hung out together," one of them recalls. "They seemed to enjoy each other's company. She was always following him around."
Over the next couple of weeks, Mike and Sarah spent several more nights together. Usually, there was some type of sexual contact. After one sleepover, Sarah woke up and found that Mike had started to fondle her. She never told Mike to stop, she says -- although he did when she turned away.
"I'm a very passive person when it comes to sex," Sarah says. "I just try to stay there and be quiet and hope it will stop."
In the title piece of Hooking Up, his 2000 collection of essays, Tom Wolfe works hard to explain how teenage sexuality has changed, moving beyond even the loose moral standards of the 1960s and 1970s. "If anything," he writes, "'sexual revolution' was rather a prim term for the lurid carnival actually taking place."
Later, he explains the title phrase: "Dating -- referring to a practice in which a boy asked a girl out for the evening and took her to the movies or dinner -- was now deader than 'proletariat' or 'pornography' or 'perversion.' In junior high school, high school, and college, girls headed out in packs in the evening, and boys headed out in packs, hoping to meet each other fortuitously. If they met and some girl liked the looks of some boy, she would give him the nod, or he would give her the nod, and the two of them would retire to a halfway-private room and 'hook up.'"
Trends age quickly, though, and now even "hooking up" sounds dated. More contemporary is the phrase "friends with benefits." Loosely put, "it means that friends allegedly get to have sex with each other with no other meaning attached to it," explains Dr. Mark Benn, a staff psychologist at Colorado State University's student counseling center. "It's like a booty call. One friend might call up the other and say, 'What are you doing tonight?' and they agree to have sex." While convenient for the pair of friends, Benn says, the arrangement can also be confusing.
"It's also called 'friends in higher places,'" says one freshman on Mike's dorm floor. "People are still looking for the right person, but in the meantime, just for the night, they decide to hook up. It's real common. Everyone does it." It's also become common for young men and women to sleep in the same bed fully prepared for uncommitted sex -- or not. "It happens all the time," Sarah says. "Sex doesn't always occur." For example, Sarah's roommate once spent the night in Mike's room simply because Sarah had another man in their room.
The casual, "friends with benefits" nature of Mike and Sarah's relationship was reflected in the unpredictable nature of their sleepovers at the start of the semester. Mike's chronology of the first six weeks includes a half-dozen sleepovers: once the first week -- an incident he describes as "romantic"; nothing the second week; another sleepover the third week, "just as friends"; and a sleepover in both the fifth and sixth weeks, during which some sexual contact occurred, Mike says.
But while Mike and Sarah may agree on certain dates, their interpretations of the relationship differ drastically. Summarizing Sarah's version, a CSU official writes that Sarah did "not recall dating [Mike] and is clear that she never felt like [she and Mike] were ever dating.... She never had any interest in [Mike] in any case."
"One time we went and got ice cream," Sarah recalls. "I just thought that we were getting ice cream. But I guess he thought of it as a date. He seemed to see me as a girlfriend."
Mike, meanwhile, describes his relationship with Sarah as "heating up" during this same period. "We had a sexual relationship, but we didn't have sex," he explains. "We had done everything but that."
Rape crimes are usually divided between acts that involve strangers and those that involve acquaintances. While the latter are much more common, experts agree that the first category gets all the attention.
That certainly has been the case in Fort Collins. Between May 10, when a woman was attacked on Raintree Drive, and August 23, when another woman was raped on Landings Drive, a total of seven young women were sexually assaulted in Fort Collins.
Victims described their attacker similarly: The rapist was a white male with a dark complexion, between twenty and thirty years of age, a smoker who drove a faded, light-blue 1980s sedan. The attacks all followed a fairly consistent pattern: The man entered a ground-level apartment at night and blindfolded the woman before assaulting her.
Police soon concluded there was a strong probability that the same person was responsible for all of the attacks. Then in September, DNA traces left by the intruder were found to match those of a Philadelphia-area serial rapist who'd attacked a half-dozen women between 1997 and 1999; one of the women, a student at the University of Pennsylvania, had been killed.
A rape committed by a total stranger is a relatively rare occurrence. Yet the random, uncontrollable nature of such attacks is frightening, and for many weeks this past year, young women in Fort Collins reported feeling under siege. Some said they'd begun sleeping with makeshift weapons near their beds. Fliers warning women to be cautious papered the town.
The publicity provoked a dramatic response from the community. By mid-November, the Fort Collins police had received 1,265 tips on the case and identified 870 possible suspects. DNA tests eliminated 475 of them. Although the attacks have stopped and police believe the man responsible has left the area, the case remains open.
But while the topic of rape has never been as pervasive in Fort Collins as it has been this fall, authorities don't agree on what effect that talk has had on other rape filings.
Lieutenant Karl Swenson has worked as a campus cop for nearly three decades. This year, he says, he's seen a drop in the number of rapes reported on the CSU campus. He suspects the frightening and violent nature of the seven assaults has made victims of acquaintance rape shy away from filing their own complaints, which may seem relatively trivial by comparison.
"I think that's irresponsible," Rita Davis, spokeswoman for the Fort Collins Police Department, says of Swenson's theory. In fact, city police have noticed an increase in the number of reported sexual assaults since this summer, when residents went on high alert. One of those reports was false, she adds, and was probably connected to all of the publicity surrounding the attacks.
At the same time they were working out the details of their particular friendship, Mike and Sarah were not limiting themselves to each other. Mike never had sex in high school, he says, and he wasted no time exploring that realm at CSU. He remembers having sex with three different women in the first few weeks of school. (A couple of people remember him saying there were as many as six.)
A few of the encounters were one-night stands, lubricated by plenty of alcohol. According to Mike's roommate, Mike was proud of his ability to attract women to him. The roommate also says he never witnessed Mike having any "meaningful relationship" with a girl. Still, Mike says that after he had sex with one woman, they stayed platonic friends. Contacted by phone, that woman agrees.
Sarah, who had recently broken up with her hometown boyfriend, was not monogamous, either. A couple of young men on Mike's dorm floor had sex with her, according to school reports. Two say the incidents occurred with surprisingly little introduction: They were in their rooms, Sarah -- who often was visiting Mike -- came in suddenly, they had sex, and then she left. "She was very forward," says one.
She was also very straight about enjoying sex. "Did he get what he was looking for?" Mike's roommate remembers asking Sarah after one such encounter. "No," Sarah replied. "I got what I was looking for."
Through all of this, Mike and Sarah continued to spend an occasional night together. According to Mike, they continued to kiss and fondle each other. Mike told friends he hoped someday to have intercourse with Sarah -- a possibility that seemed more likely given her overtly sexual behavior with other men.
"If it wasn't ever going to happen, why did we ever fool around?" he wonders now. "It was just a matter of circumstance" -- a roommate present, maybe an argument -- "that we'd never had sex before. We joked around a lot about sex. We were obviously more than friends."
But Sarah didn't seem to take the sleepovers as seriously. "I never thought of him as a boyfriend," Sarah says. On more than one occasion, Mike's roommate reports, Sarah told him that she wasn't interested in developing the relationship with Mike beyond friendship. If she was going to have sex with Mike, she said, she would have done it by now.
Later, when asked to explain the relationship, Mike's roommate hypothesizes that perhaps Sarah viewed Mike as attractive at first but then changed her mind. He thinks Sarah saw Mike as just a friend, "even though there was always sexual discussion going on."
College is prime time for experimentation. Many students, young men and women who have had little or no sexual experience during high school, begin to explore once they are away from home and thrown together in coed dorms. Alcohol helps fuel their socializing. Despite the state's legal drinking age of 21 -- usually the age of a college junior -- university administrators, if they are honest, will acknowledge that many underage students drink on campus.
Sexuality and alcohol are a volatile mix, and university sexual-offense policies have struggled mightily to get a handle on how best to manage what can become a complicated situation. "Date rape" is a topic of constant and unblushing discussion on campuses. CSU distributes fliers to its 23,000 students that tout the 24-hour availability of its Victim Assistance Team and the Student Alliance for Gender Education. The school also hands out advice on precautions to take at a party ("Accept drinks only from the bartender or server") and how to comport yourself on a date ("Beware of 'power stares -- [a person] looking through you or down at you'").
Perhaps the most famous sexual-misconduct policy is that of Antioch College, a small private school in southern Ohio. Like most other school policies, Antioch's code revolves around the meaning of the word "consent"; Antioch, however, has taken the definition of the word to extraordinary lengths.
Under Antioch's very particular rules, two people simply agreeing to have sex does not necessarily qualify as consent. "Obtaining consent is an on-going process in any sexual interaction," the policy reads. "Verbal consent should be obtained with each new level of physical and/or sexual contact/conduct in any given interaction, regardless of who initiates it. Asking 'Do you want to have sex with me?' is not enough. The request for consent must be specific to each act." That means that in order to be considered appropriate, an evening of foreplay and sex requires an almost constant stream of questions and answers.
CSU's policy is not as precise as Antioch's -- although Benn, the school psychologist, says it ought to be. "Why not?" he asks. "We negotiate everything else. I've seen too many of these cases where the guy later says, 'I didn't know.' If he'd asked, he would have known."
Still, CSU's code does attempt to define consent. "Effective consent is informed, freely and actively given, mutually understandable words or actions which indicate a willingness to participate in mutually agreed upon sexual activity," the policy states.
CSU's code acknowledges that "mutually understandable consent is a subjective standard. Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same thing, in the same way, at the same time, with each other."
College administrators across the country agree that trying to keep up with students' changing morals and behavior is an ongoing challenge. It's hard to imagine, say, a woman at a party in 1970 being advised not to accept a drink offered by her date. Or that, a generation ago, there would be any question regarding "effective consent" when a man and a woman decided to climb into bed together with few clothes on.
As campus rules became more specific, critics started arguing that they contained inherent philosophical problems. In their zeal to protect, these sexual-misconduct codes can subtly absolve women of responsibility for what later may be characterized as a sexual assault. Antioch's policy, for example, states that even though a woman does not say no or struggle with her partner during sex -- indeed, even if she says yes at the time -- she would still not be considered to have given her informed permission for sexual contact if she "is under the influence of alcohol or other substances supplied to her by the person initiating."
Yet as Katie Roiphe, author of The Morning After: Sex, Fear, and Feminism on Campus, noted in an essay several years back: "Why aren't college women responsible for their own intake of alcohol or drugs? A man may give her drugs, but she herself decides to take them. If we assume that women are not all helpless and naïve, then they should be responsible for their choice to drink or take drugs. If a woman's 'judgment is impaired' and she has sex, it isn't always the man's fault; it isn't necessarily always rape."
In other words, even though sexual-harassment codes may claim a modern sensibility, stripped of their legalese, the words suggest little more than the old, passive-voiced excuse "He got me drunk."
Coming up with a clear, effective sexual-offense policy -- one that defines and regulates the behavior of hormonally charged teenagers, many of them away from home for the first time, working to figure out their own limits -- is a tall order. In the situations the rules are designed to control, the background can easily turn gray. It is not uncommon for all parties involved to behave a little carelessly, perhaps even stupidly.
On Tuesday evening, October 2, Mike was hanging out with a friend and fellow cheerleader. According to the friend, Sarah called Mike and asked if she could come over; Sarah claims that Mike called her. In any case, by 9:30 p.m., Sarah and a friend of hers were in Mike's room. A little later, Mike's roommate showed up.
By all accounts, Mike and his roommate were incompatible in many ways. Mike was into cheerleading, socializing and the fraternity he'd pledged the first week of school. His roommate played in the school band, was less social and was uninterested in sports. On at least one occasion, the two had argued over Mike's drinking and partying in the room. The roommate later told a university administrator that he didn't have a very high opinion of either Mike or Sarah and didn't care if he saw either of them again.
About an hour after Mike, his friend, Sarah and her friend had gathered in Mike's room, they decided to go find some alcohol. All were underage, so they walked over to Mike's fraternity house, where they easily convinced an older student to buy them beer. They returned to Mike's room with a thirty-pack of Busch Light.
Although memories vary with regard to who drank how much, no one was showing great restraint that night. (Police recovered only six full cans from the room.) Sarah claims she drank five of the beers; Mike remembers her having only three or four. Both Mike and Sarah agree that Mike drank about seven or eight.
As they had in the past, Mike and Sarah started talking about sex. At some point in the evening, both were looking at Mike's computer, where he'd stored some two dozen files of cyberporn.
Mike's friend remembers Sarah starting the computer session. The two had looked at porn several times prior to that evening, Mike says; in fact, some of the files had been downloaded by Sarah at those earlier viewings. (Computer records show that a half-dozen porn sites were downloaded on Mike's computer late on October 2.)
Sarah viewed the sites alone for a while, Mike and his friend both remember, and then called the others over to see a picture of a man with a nipple ring. Sarah and her friend agreed that the look was attractive, and they urged Mike and his friend to get their nipples pierced. "If you got it done, Mike, I would play with it all the time," Mike's roommate remembers Sarah saying. (Sarah's initial account of the evening doesn't mention the cyberporn. In a later interview, she admits she liked the way the nipple ring looked -- although in retrospect, she says, she found the pornography gross: "I didn't say anything, but I thought it was disgusting.")
As the night wore on, the four split into two couples. While Mike's friend chatted with Sarah's friend, Mike began a personal conversation with Sarah. Mike's friend says it looked like Sarah and Mike were enjoying each other's company. "There was definitely some flirting," he recalls. "I could tell something was going on."
The party began to break up about 1 a.m. According to Sarah's friend, the two women went to the bathroom together; while there, she asked Sarah what she wanted to do. Sarah said she wanted to spend the night with Mike, her friend remembers.
Sarah, however, remembers "passing out" on the bed, then being woken up by her friend as she was leaving. "Since Mike and I were such good friends, and I was so tired, I decided I would just stay the night there," Sarah says.
By about 1:30 a.m., only three people were left in the room: Mike, Sarah, and Mike's roommate. In his account of the night, Mike's roommate remembers Sarah returning from the bathroom and sprawling on Mike's bed, "taking up as much space as possible." Although Sarah was "tipsy," he says, "it didn't seem like she passed out or anything."
Sarah asked to borrow a pair of Mike's boxer shorts. She took off her pants, put on the shorts, then climbed in bed with Mike. Mike's roommate was in the top bunk; the last thing he remembers was Sarah saying goodnight to him.
Mike and Sarah's versions of the following half-hour differ dramatically.
Mike says Sarah initiated the sexual contact, kissing his back and then his stomach. Then the two began fondling each other's genitals.
Sarah's account has varied slightly over several tellings. At 2:30 that morning, she would tell dorm resident advisors that she awoke to find Mike on top of her and that they were having sex. The following day, in interviews with CSU police, Sarah said she awoke to find Mike's hand down her pants. In that version, she also provided details of oral sex and other fondling. (Sarah insists that her story has stayed the same; she says the first version was someone else's interpretation of what she had told her.)
Indeed, according to Mike's account, after fondling Sarah, he performed oral sex on her. Although he says she was receptive and seemed to enjoy it, Sarah remembers not experiencing any pleasure at all. She says she "did not respond, did not help and did not reciprocate," according to a CSU official.
Clear communication between the friends remained elusive. The officials' report notes that Sarah "acknowledges that while she was not participating, she was also not directly communicating to [Mike] her lack of consent up until the point that she understood that [he was] going to have intercourse with her. Up until this time, [Mike's] behavior was similar to prior instances, and [he] never pushed it further."
Both Mike and Sarah remember Mike reaching for a condom he kept behind the clock on his desk. Sarah says she heard him tear the package open but never saw the condom. Mike recalls fumbling with the wrapper and then Sarah taking it from his hand, pulling the package open and handing it back to him. Sarah threw away the top part of the wrapper, he says, and he tossed the bottom.
At that point, Sarah reports that she began saying no to Mike -- two dozen times in all, by her estimate. Mike remembers her saying different words: "yes" and "right there."
"He says I was urging him on, but I was saying no the whole time," Sarah says.
The only other person in the room, Mike's roommate, reports hearing nothing.
Both Sarah and Mike agree that he ejaculated, but then the stories again diverge. Mike recalls a civil discussion, during which both he and Sarah agreed they had to go to the bathroom. Mike left, expecting Sarah to follow after she'd finished dressing. But when he returned to the room, Sarah was gone. He has not seen her since.
In her written account of the evening, Sarah recalls Mike saying he had to go to the bathroom. After he left, she writes, "I struggled to find my pants and underwear. I didn't find my underwear, but I did find my pants and put them on. I then woke up [Mike's roommate], who was in the room the whole time, and said, 'I think Mike just raped me.' And I ran out of the room, down the hall, down the stairs, outside, and to my hall."
Mike's roommate says he didn't remember waking up or hearing Sarah talk to him. And Sarah later amended her account: "I tried to wake up [Mike's roommate] but got no real response."
Only one other person says he saw both Mike and Sarah early that morning. A dorm resident named Justin claims he was heading back from the bathroom between 1:30 and 2 a.m. when he ran into first Mike, then Sarah, both heading down the hallway. He says he asked Mike how he was doing and that Mike said, "Okay," and continued toward the bathroom. When Sarah exited the room moments later, Justin says, he asked her how she was doing and she said, "Fine," and walked on.
Sarah says she never saw Justin that night. Lieutenant Swenson doesn't buy Justin's account, either. "If that's what he's saying, he's lying," the campus cop says. Mike and Sarah "never walked to the bathroom together."
About 45 minutes after she'd gone to bed, Sarah's roommate heard a knock on the door. She opened it and saw Sarah, who "was really upset." The roommates smoked a cigarette, then went to the resident assistant's room and spoke with her. The assistant called the hall director. After talking with Sarah and her roommate, the hall director phoned the Victim Assistance Team. Soon after the team's arrival, the group drove to the hospital so that Sarah could complete a rape kit.
By then, the campus cops were already involved. Dispatch records indicate that the hall director contacted CSU police at 2:35 a.m. Two hours later, Swenson drove to the hospital to interview Sarah and collect written statements. By 10:30 that morning, he'd obtained a search warrant for Mike's room.
A half-hour later, he was there. Swenson confiscated eighteen items from the room, including Mike's blankets, sheets and pillows, two pairs of boxer shorts, 29 beer cans, address lists and a phone bill off of Mike's desk, trash from a trash can, and a beer bong. Police also photographed a dry-erase board on Mike's door and his desk blotter, which had some e-mail addresses and phone numbers written on it.
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.
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).
Last year, CSU's hearing officers considered 678 cases. The vast majority of them were relatively minor and resulted in some lesser sanction. Eighty-eight cases, or about 13 percent, were found to require "no action." Only four students were expelled; twenty-two were dismissed. Zero were suspended. "I don't believe time alone heals," Anne Hudgens says, explaining that she's philosophically opposed to suspensions.
Alleged sex assaults are definitely among the more serious infractions her office prosecutes, Hudgens says. They're also more complex, she adds, painting her staff more or less into a corner. If the hearing officer determines that there's at least a 51 percent chance that the accused student is guilty of a sex crime, then CSU's legal exposure almost requires that the student be booted out of school -- lest another such accusation be made against him and the school taken to civil court. "There is definitely a liability concern," says Hudgens. "If we believe somebody committed a sex offense, we've got to separate him from the university."
Hudgens declines to discuss Mike and Sarah's case specifically, other than to say that the vast majority of CSU's rape cases, like theirs, are date and acquaintance situations. Many of these cases do not meet the standard of evidence necessary to prosecute them criminally, she adds.
Another disparity between criminal and campus policies involves alcohol. While it is undisputed that all four of the teenagers were drinking the night of the alleged rape -- and that alcohol almost certainly played a key role in the assault -- only Mike was charged by the school with underage drinking.
Hudgens won't explain how the university decides whom to charge with illegal drinking. "We would take an interest in any student's needs and what they require to make their lives better," she says.
Mike told his side of the story during two and a half hours of testimony at his October 18 hearing. "It was a very fair hearing," Sarah says. "They looked at my history -- and I regret some of it -- and his history." Eight days later, Hudgens finished her own report. "I don't find either you or Sarah completely truthful in your versions of the incident," she wrote in a letter to Mike, "and there is much about both of your behaviors that is problematic."
Nevertheless, the judicial affairs director gave the nod to Sarah.
"It is easier in the picture to see why you would push her sexual boundaries that night than it is to see a reason why she would falsely report an assault," Hudgens wrote. "You have been dismissed from Colorado State University as of November 2, 2001."
To support her decision, Hudgens cited a number of factors. Most of them, she admitted, relied on the recollections and opinions of Mike's roommate. "From [his] perspective," Hudgens wrote, "casual sex is no big deal to either one of you. He can't think of any reason why Sarah would falsely accuse you of rape. It would be completely unexpected for Sarah to go hysterical about any sexual contact. He does not see her as someone who would seek out the staff, police or go to the hospital for attention."
However, she added, "He does think it's pretty confusing that Sarah seems quite unaffected by this."
Rather than attempt to determine whose version of the night of October 2 was more credible, Hudgens appears to have sought out information that might illuminate the nature of the relationship in general. She noted, for example, that Mike had talked with his roommate about the fact that Sarah wasn't having sex with him; in the roommate's opinion, Sarah considered Mike a friend, while Mike "thought of her as an object to conquer."
In interviews, Sarah did not hide her sexuality; Sarah admitted having "self-described regretted sex without blaming anyone but herself," Hudgens said. And the administrator found a satisfactory explanation for Sarah's seeming passivity that night during the initial sexual contact: "Given her history of other sexual encounters with you, which involved fingering and oral sex, without significant response on her part," she wrote, "it appears unlikely that she would have had a huge negative response to repeated behaviors."
Hudgens was interested in the roommate's recollection that, just before Mike turned off the light that night, he told him, "My mom told me about a guy who got accused of rape." (Mike denies having said this.) Finally, Hudgens found it significant that Sarah reported the assault almost immediately after leaving Mike's room. "Her emotional state and timing for leaving your room is consistent with the concept that she was upset with what occurred in your room," she wrote.
In order to be considered for re-admission to the school, Hudgens said Mike had to prove himself ready: "You must complete a psychosexual evaluation to be conducted by a State Certified Sex Offender Evaluator. You must seek a full evaluation of your use of alcohol and other drugs through a person or agency specializing in the treatment of substance abuse. You are not eligible to return to Colorado State University during the period of time that Sarah remains enrolled as a student.
"You must remain law-abiding. At the time you are seeking re-admission, you may not have a history of any criminal convictions or pending criminal charges not related to this incident. You must remain free of any disciplinary action at any college or university you attend. You must remain free of any disciplinary action in an employment setting."
She concluded: "A notation of dismissal will appear on your academic transcript. The notation will be removed if you successfully complete all requirements listed above whether or not you are seeking re-admission to Colorado State University."
Mike appealed the decision, and another hearing date was set for November 30.
"I always wanted to go to CSU," Mike says. "I could have gotten a cheerleading scholarship to the University of Colorado, but I've always liked Colorado State better."
Still, in the weeks leading up to his appeal date, Mike's resolved wavered. At first he thought that once school officials heard his side of the story, there was no way that they could accuse him of rape. "Even if I am as bad as I sound in their reports, I'm only a jerk," he remembers thinking. "Fine. I'll go along with that."
But later, he started to think that the fight wasn't worth it. The appeals process seemed rigged against him. In it, Mike and a single advocate -- after learning the cost of a lawyer, he selected his 24-year-old sister, Stephanie -- would face off against the director of judicial affairs. "How fair is that?" Mike's mother asks. "An administrator who does this for a living against a teenager?"
Mike did what he could to prepare his case. He collected handwritten statements from those who knew him and thought about ways he could convince administrators that his version of that night was the more believable one. He continued attending classes while living at the fraternity. Although the school had banned him from the cheerleading team, Mike's coach was sympathetic, and he permitted Mike to attend practices the minute they were officially over. Many of his teammates stayed late to work with Mike.
Mike is the first member of his family to attend college, and so his success at CSU is a collective family concern. The weekend after Thanksgiving, Beth and Stephanie helped Mike prepare his defense, sitting at the family's dining-room table in Arvada with documents spread before them like a paper feast. They dug for holes in Sarah's story and tried to think of convincing ways to show that Mike was a solid citizen. Beth is on disability leave from her job, and money is short; in late October she hosted two garage sales to raise cash to help pay for Mike's attorney fees.
She didn't raise anywhere near enough. And after consulting again with the lawyer, Mike and Beth decided that maybe he should walk away. The risk that anything Mike said during the appeal could later be used to drag him into criminal court seemed too high, and both the financial and emotional cost too steep. "This is serious stuff," says Beth.
By early this week, after the DA had declined to press charges, Mike and CSU were close to a deal: Mike would be allowed to finish the semester, and CSU would remove the dismissal from Mike's permanent academic record -- provided that he sees a psychologist specializing in alcohol- and sexual-abuse issues who will then state that Mike is at no risk of reoffending, Hudgens said.
Beth has resisted that condition. "What she's asking for is impossible," Mike's mother says. "No psychologist is going to sign a piece of paper saying Mike will never, ever do something wrong again."
Hudgens, she continues, "does thousands of these cases. But this is Mike's future. Twenty years from now, if he gets divorced and his wife finds out about this, she could use it to prevent Mike from seeing his children."
Although details of the final deal between Mike and CSU are still being worked out, Mike's part of the bargain is clear: He will leave CSU for good.
Beth says she eventually came to believe her son.
But on that Sunday in early October, as soon as she hung up the phone with Mike at his fraternity house, she called her cousins. "I need your objectivity," she told them. So the entire extended family piled into a car and immediately drove up to Fort Collins, where they sat down and began asking questions.
Beth was crying too hard to participate much. At first she was skeptical, but then she began to think her son was telling the truth. "His story never changed," she says. The real turning point, though, hinged on something much subtler.
"When you are a parent, and as close as our family is, you know your kids inside and out," Beth says. "Whenever Mike is in trouble, the world just stops -- time stops for him, and he can't see beyond what is happening at that moment. But this time, as we talked to him, he kept saying, 'When this is over...' He was looking to the future, ahead.
"When I realized that, I also realized that he didn't do it. It's something only a mother would know."
But Beth continues to question herself, wondering if she's let her love for Mike get in the way of seeing the truth. "Am I being blind?" she's wondered more than once. And she keeps struggling to interpret a 21st-century sex crime through a 1970s lens. "When I was a girl, when I took off my clothes and crawled into bed with a man, it meant we were going to have sex," she says. "What do girls these days expect? I tell my daughter not to put herself into a bad situation."
Sarah, however, says she has had no second thoughts. "If someone is saying no, it means no," she says. "I know what 'consent' and 'no consent' mean. I know the difference." Still, she recognizes that alcohol played a role in the incident, and she says she has stopped drinking altogether. "If I can't drink responsibly, I won't drink at all," she says. She has also gotten back together with her old boyfriend.
While Mike and Beth were close in the past, over the last two months they've been forced into a greater, far more uncomfortable intimacy as Mike reveals the graphic and personal details of that night in early October. In an odd way, Mike says, the revelations have brought them closer. "Because I now have nothing to hide," he explains. "On the other hand, I don't have a personal life anymore. It's all public, all being displayed."
Mike has changed his behavior in subtle ways. He, too, has cut back on drinking, and he is proceeding -- cautiously -- with dating. Recently he met a girl he liked. When she invited him back to her room, however, he declined. "I just said, 'No, no, no,'" he recalls. "You gotta watch out, make sure there's plenty of people around.
"I was a little promiscuous, and I drank," he says. "I never drank in high school, or had sex, so when I got here, I took advantage of it. But no more than the average person here. I guess I fell into a kind of averageness."
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