After four days of emotional testimony, the jury was locked in a 7-5 split in favor of acquitting a former TCU student accused of raping another student at a fraternity party.
The accused, Joseph Robert Dowd, testified that his accuser had freely participated in sex.
Dowd’s accuser, known by the pseudonym Jane Smith, testified that she was painfully and brutally raped.
A crucial point in the deliberations happened about noon Sept. 22 after jurors returned from their weekend recess, said Shelly Rountree, the jury forewoman. Jurors sent out note No. 11, asking for a recounting of Smith’s thoughts after she entered Dowd’s room and he locked his door and turned off the lights.
Tarrant County prosecutor Kimberly D’Avignon posed the question:
“Door locked, lights off. What do you think?”
Smith: “I honestly was thinking, ‘OK, well, maybe he’s going to try and make out with me or something.’ I didn’t know at that point — I wasn’t completely uncomfortable at that point, but just more on guard, thinking that’s not a friend conversation, you know.”
D’Avignon: “And I know it’s hard to remember back, but in that moment, was it really that offensive to you that he might make out with you?”
Smith: “Not offensive.”
That answer helped lead to Dowd’s acquittal, Rountree said.
“We felt like she went into Dowd’s room with something more on her mind than making out,” Rountree told the Star-Telegram in a recent interview. “There were three women on the jury, and that helped convince some of the men on the jury. That was the turning point for a lot of us.”
A ‘larger problem’
The reaction was immediate and harsh — from both sides.
Mary Lee Hafley, CEO of SafeHaven of Tarrant County, which supports domestic violence victims, said she was “completely blown away by this verdict.”
“My first thought is for the victim and the thought of ‘What college campus will she ever feel safe on again?’ ” Hafley said. “I can’t imagine the despair this must have created for the victim and for her family.
“This unfortunate verdict is sending victims right back into a code of silence,” she said.
Dowd’s attorney, Frank Jackson, said that “authorities should be very cautious about sexual assault allegations on college campuses now. I know it’s perhaps the politically correct thing to do, but if we’re not careful, a lot of lives can be destroyed.”
TCU student J. McDowell said he was concerned by Jackson’s comments.
“I don’t think that’s the right message to send to college campuses,” McDowell said. “This is not about John Dowd. It’s about a much larger problem.”
Indeed, conversations about the acquaintance-rape issue on college campuses have reached a crescendo.
Just two days before the verdict, the White House launched a public service initiative designed to enlist men to intervene in behalf of acquaintance-rape victims. The campaign is part of President Barack Obama’s efforts to raise awareness of campus sexual assaults.
In 2013, Obama signed the Violence Against Women Reauthorization Act, extending additional rights to campus sexual assault victims. New rules under the act were proposed by the Education Department this summer and should take effect by July.
And last month, California Gov. Jerry Brown signed legislation that said both parties must give affirmative and conscious consent before and during sexual activity. The law specified that someone who is drunk, asleep or drugged cannot give consent and also said silence or a lack of resistance is not a green light for sexual activity.
The Dowd case was among the forcible sex offenses reported at TCU, which had 11 such reports in both 2012 and 2013, according to the school’s annual security report.
At the University of Texas at Arlington, 10 forcible sex offenses were reported in 2012 and five in 2013. At the University of North Texas, the numbers were four in 2012 and five in 2013. And at Southern Methodist University, five forcible sex offenses were reported in 2013 and four in 2012.
The federal Clery Act requires colleges and universities to report such offenses, as well as other crimes, from burglaries to aggravated assaults. But the report does not include how each case was adjudicated.
Because of privacy laws, it is unclear how many of the sexual assault cases — outside of the Dowd case — rose to the level of prosecution.
Still, advocates for rape victims say the reporting system is a step in the right direction.
The changes in how university officials deal with sexual assaults followed a long history of neglect, said Hafley, with SafeHaven. In the past, victims would report assaults to their professors or counselors, who in turn might question their credibility, Hafley said.
In such instances, the victim was often told to go home and think about what she said, and she would begin to doubt her own story.
“So they absolve themselves of any responsibility,” Hafley said. “For many years, we did not acknowledge that rape could happen within a relationship. It’s one of those things that has had to evolve.”
Former President Jimmy Carter, who was in Fort Worth this week, told the Star-Telegram that “universities don’t want to admit it’s happening on their campuses.”
“So if a girl does report that she’s been raped, they counsel her to not make a big deal of it,” Carter said.
‘Rape is rape’
The Clery Act, in place since 1991, requires officials to report sexual assaults on and around their campuses as forcible and nonforcible acts. According to proposed rule changes, the forcible and nonforcible labels will be removed.
Now, “rape is rape,” said Dana Scaduto, general counsel at Dickinson College in Carlisle, Pa.
The requirements have been expanded to include reporting of stalking, including cyberstalking, as well as dating violence and domestic violence, Scaduto said. Colleges will also be required to report hate crimes based on national origin and sexual orientation.
“The goal is to help victims feel more confident and supported in reporting,” Scaduto said. “The challenge is how to improve the environment and support for victims and offer resolution processes that are fair and unbiased for all our students.”
The new rules also strengthen confidentiality protections for victims and require that on-campus disciplinary proceedings are “prompt, fair and impartial” to both the accuser and the accused.
Robert Estrada, a Wichita Falls attorney who represented Dowd during his hearing before TCU’s administrative body, would welcome those changes.
“I’m not speaking about the Dowd trial, but in general, you’re talking about a stacked deck in those situations,” Estrada said. “It’s more like a kangaroo court. It would be hard for me to ever advise a student going into that kind of administrative hearing to ever answer any of their questions.”
The changes will not be easy, Scaduto said.
“Every school will need attorneys and people to tell them what they need to do to implement these new laws,” Scaduto said. “It’s too complex to do on their own.”
‘Our rape culture’
Dowd’s case provides a rare glimpse into the complexities that both sides face when presenting a campus rape case.
During jury selection, Jackson, Dowd’s attorney, asked potential jurors if they or anyone they knew had been sexually assaulted, and hands went up from half the group. Jackson said he asked how many of those cases had been reported to the police and litigated, and no hands went up.
“There are a lot of loony women out there just like there are a lot of loony men out there,” Jackson said. “Before you assume an allegation is fact, it should be tested before you ruin someone’s life.”
Once it was determined that Smith willingly went into Dowd’s room, the trial quickly turned into a “he said, she said” affair.
Smith claimed that Dowd held her down on his bed with his hand across her neck and eventually threw her on the couch with her back facing him. That’s when he sexually assaulted her, Smith testified.
Dowd testified that he was leaving the room when Smith touched his shoulder and asked him to talk with her some more. They kissed and she helped him put on a condom, Dowd told the jury.
After more than seven hours of deliberations, the jury sided with Dowd, who transferred to Texas A&M after being charged with sexual assault.
“We felt like she was not being truthful,” said Rountree, the forewoman.
The thought that women would lie about being raped is just one of many roadblocks facing victims, advocates say.
“We need to dispel this myth that there are all these women who have nothing to do except cry rape,” said Deborah Caddy, program director for the Rape Crisis and Victim Services Program of the Women’s Center of Tarrant County. “Our rape culture is still in existence. We have to leave those old thoughts behind that boys will be boys.”
The reward for lying about a sexual assault is slim, Caddy said. The victim is grilled about sexual habits and experiences, and every aspect of her past and present behavior is examined.
“I cannot imagine seeing all those judging eyes and knowing that basically she would be shredded,” Caddy said. “Why would she be willing to go the distance with this outcry if it were not a significant event in her life?”
SEXUAL ASSAULTS ON CAMPUS
TCU: 11 forcible sexual offenses reported in 2012; 11 in 2013
UTA: 10 in 2012; five in 2013
UNT: Four in 2012; five in 2013
Obama’s ‘It’s On Us’ initiative
In September, President Barack Obama launched the public awareness campaign “It’s On Us,” asking Americans to help take responsibility for preventing sexual assault.
The website itsonus.org asks people to take the following pledge:
• To recognize that nonconsensual sex is sexual assault.
• To identify situations in which sexual assaults may occur.
• To intervene in situations where consent has not been or cannot be given.
• To create an environment in which sexual assault is unacceptable and survivors are supported.