Tuesday, January 28, 2014

University of Missouri Will Investigate Sexual Assault Related to a Student Athlete's 2011 Suicide

Over the weekend, ESPN's program Outside the Lines reported on the story of Sasha Menu Courey, a swimmer at the University of Missouri who committed suicide in 2011. OTL reported that Menu Courey had been raped (or believed she had been raped) the year before by one or more members of the football team, and that this incident is believed to have triggered an existing mental illness that lead to her suicide.  The report raised questions about the University of Missouri's failure to investigate the underlying sexual assault, despite the possibility of having known about it prior to the swimmer's death, and the certainty that it found out about soon afterwards.  Until recently, the university claimed that it was not investigating or involving the police based on a decision to honor what they perceive to be Menu Courey's wishes.  The university also says that it solicited inputs from the student's parents, but got no indication from them that they desired an investigation to occur. 

Now, the university is going forward with an independent investigation of how the university handled the matter, and the local police is also now involved. Yet questions remain about whether did enough prior to this point to satisfy its obligations under Title IX.  According to the 2011 Dear Colleague Letter, a university is required to respond immediately when it has reason to believe that a sexual assault has occurred.  So attention at this point will focus on what university officials knew and when.

Initially, Menu Courey did not report the rape to anyone other than to health care providers who are bound to confidentiality.  But she may have also told an athletic department official named Meghan Anderson, who went to see Menu Courey while she was being hospitalized for an earlier suicide attempt to obtain Menu Courey's signature on a form withdrawing her from the university.  Menu Courey wrote in her journal that some time after the visit, she called Anderson and told her about the assault, though Anderson denies that this was said. Subsequently, Menu Courey committed suicide.  If Anderson had in fact been told about the sexual assault, she might have had a legal obligation to report it.  Under the Clery Act, university officials who have significant responsibility for students are under a duty to report crime.  The duty to report would thus depend on Anderson's job at the time, and whether she was considered someone with significant responsibility for students.  The fact that she was the one deployed to the hospital to obtain Menu Courey's signature on the withdrawal form suggests that she likely had this responsibility.  However, it sounds like we will never know for sure whether she knew about the assaults, since Anderson's account of their conversation differs from what Menu Courey wrote in her journal.  

Anderson aside, the university still had arguable reason to know about the assault from a news story about Menu Courey published in the wake of her death.  Apparently, Menu Courey's grieving parents learned about the sexual assault from their daughter's journal, and shared this information with a reporter from the Columbia Daily Tribune, who include it in a story about Menu Courey's life that ran on Feb. 21, 2011.  Details about the assault were not included in the article; for example, the university defends that it didn't even specify whether it occurred on campus or while Menu Courey was home in Canada.  Still, OCR does not require a university to have actual notice in order to trigger a response (though that is the standard courts use to determine liability for money damages).  According to the Dear Colleague Letter, if school officials know or "reasonably should know" about an act of sexual assault, they are required to "take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." The duty to "prevent its recurrence" would seem to at least warrant making a reasonable effort to find out more.

The university's defense of its delay seems to be that they are honoring what they perceive to be Menu Courey's wishes and those of her parents, since Menu Courey did not report the sexual assault while she was alive, and her parents have not requested that the university do so after.  Yet the Dear Colleague Letter makes clear that a university's obligation to respond is not contingent on the victim's wishes.  This is because a university's obligation is as much to the campus as a whole as it is to the victim in a particular case.  We know that most campus assault is committed by serial offenders.  It is possible that the university's failure to investigate earlier put other students at unnecessary risk.  For all we know, Menu Courey's apparent assailants may have later raped other students as well.  Regardless of whether legal action is taken against the University of Missouri, the story is still a sad, cautionary tale to university officials elsewhere about the importance of being proactive and involved in matters of sexual assault.