Los Angeles Times Was Wrong to Retract Article on Rape at Occidental

On March 14, 2014, The Los Angeles Times issued a retraction of an article in which reporter Jason Felch stated that Occidental College failed to disclose 27 sexual assaults in its 2012 Annual Security Report (ASR). The retraction states that “Occidental representatives approached the Times early this month to seek a correction. Documents reviewed by The Times this week show that the 27 incidents did not fall under the law’s disclosure requirements for a variety of reasons.”

However, The Los Angeles Times did not perform due diligence in their investigation of the numbers, and they never should have issued a retraction. Felch had incontrovertible evidence that the College did not include anonymous cases in their 2012 ASR and had verification that the college could not lawfully account for 27 missing cases.

Given the evidence, The Times should issue a mea culpa, and especially after Occidental spokesperson Jim Tranquada recently admitted to the LA Weekly that Dean of Students Barbara Avery ignored federal Clery reporting requirements that year. “In 2012, out of concern for student confidentiality, the Dean of Students office did not always communicate to Campus Safety when a student initiated the sexual-misconduct process or otherwise reported a sexual assault.”

Due to the complexities involved, it is easy to see how institutions are able to dissemble with data. To really understand how the College and The Times have failed in their duties, we must pay close attention to several key dimensions: the specific demands of the Clery Act, the multiple and contradictory reporting numbers given by College officials, and the multiple and contradictory reasons provided for the reporting gap.

The Clery Act

The Clery Act was passed in 1990 in response to the rape and murder of Lehigh University student Jeanne Clery. Clery is intended to increase transparency about crime on and around campus, but many schools continue to distort their crime numbers.

Clery’s two primary reporting documents are the Daily Crime Log and the Annual Security Report (ASR). The ASR is published on October 1st of each year, and it includes crimes reported during the previous calendar year (January – December), regardless of when the crime occurred. The ASR includes statistics on eight crimes — homicide, sex offenses, robbery, aggravated assault, burglary, motor vehicle theft, arson, and hate crimes.

Schools are only required to report incidents that occur within the Clery reporting area, which includes the campus proper, property immediately adjacent to campus, and non-adjacent property that the campus owns or controls (e.g., fraternity houses).

For Clery, reports of a crime must be included in the daily crime log and the ASR, even if a formal complaint or police report is never filed, and even if the crime is not upheld in an adjudication proceeding. Additionally, student privacy laws cannot be used to circumvent Clery reporting requirements. Lastly, Occidental College is required to include reports of sexual assault/rape it receives through its anonymous reporting form if the crime occurred within the Clery reporting area.

The Number 27

In December, 2013, Felch wrote a story claiming that he had uncovered “27 additional sexual assault allegations made in 2012 that have not been disclosed. Dozens more may have been ignored by the dean of students’ office since 2009 because they were made anonymously, records and interviews showed.”

How did Felch arrive at the number 27?

He subtracted 7 (cases reported in the 2012 ASR) from 34 (cases reported by the Dean of Students to have occurred in 2012).

So the key number here is 34. This number was taken from the federal Clery complaint that we filed on behalf of nearly forty Occidental students, faculty, and staff on April 1, 2013 (a full eight months before Felch began an “inappropriate relationship” with one of his eleven Oxy sources that led to his firing).

Our federal complaint included this number because Dean of Students Barbara Avery stated that her office had received 34 complaints of sexual assault/rape in 2012 during three official meetings with the Oxy Sexual Assault Coalition on this issue:

• Monday, May 21, 2012, 10 a.m. (Barbara Avery, Caroline Heldman, Danielle Dirks, six administrators, and three students were in attendance.)
• Thursday, September 27, 2012, 3 p.m. (Barbara Avery, Caroline Heldman, Danielle Dirks, and the Dean of Faculty were in attendance.)
• Friday, October 19, 2012, 3 p.m. (Barbara Avery, Caroline Heldman, Danielle Dirks, and the Title IX Coordinator were in attendance.)

During the first meeting where the Dean reported the 34 cases (May, 2012), Avery asked us (the Oxy Sexual Assault Coalition) to revise the sexual assault policy because her office was “buried” under the 34. Avery clarified in this meeting that she was referencing cases that had come in since January, which made this statistic even more staggering because the reporting year was not yet half over. And there was never any question that the 34 referred to sexual assault/rape cases since we were there to discuss this specific crime, not motor vehicle theft or arson or cyber harassment.

During the second meeting where the Dean discussed the 34 cases (September, 2012), Avery confirmed that her office had received 34 reports of sexual assault/rape “that year.” When we pressed her about why this number did not match the crime log, she replied that only 13 of the 34 had gone to adjudication, suggesting that only formal complaints need to be reported (a violation of Clery reporting requirements). The College has since established that Dean Avery did not lawfully report these cases in 2012 (see above).

During the third meeting where the Dean discussed 34 cases (October, 2012), we again pressed her about the inexplicable gap. Avery and the Title IX Coordinator gave two concrete reasons for the gap: 10 anonymous reports that were not included in the ASR (a blatant violation of Clery), and two cases involving Oxy students that occurred at other campuses. When I noted that the numbers still did not add up, the Title IX Coordinator made a vague reference to “non-sexual cases.” In other words, the Deans were not able to lawfully explain the gap, they admitted to violating Clery by excluding anonymous cases, and they provided a set of “explanations” that differed from those that would later be given to the Los Angeles Times (see below).

We repeated the number 34 in about a dozen private and public meetings in 2012 and 2013, including a campus-wide informational session on October 25, 2012 with President Jonathan Veitch in attendance and the Faculty Meeting on November 13, 2013 where this number was entered into the meeting minutes. The number 34 was common knowledge on campus, and not a single administrator ever challenged it in a year and a half.

A few days ago, college spokesperson Jim Tranquada told the LA Weekly that Dean Avery was “speaking informally” when she repeatedly reported 34 cases, despite the fact that Avery presented this statistic in formal meetings on sexual assault/rape in her professional capacity as the head of the office that receives these complaints. Tranquada also responded that Avery was referring to the 2011/12 school year, not the 2012 calendar year, but even if this were the case, it still does not add up since the total number of cases reported in 2011 (11) and 2012 (7) equals 18 – far short of the 34.

Felch’s Due Diligence

Jason Felch worked for nearly two months on his December 7, 2013 story on the 27 cases. He spoke with sources from the federal complaints who confirmed that Dean Avery could not legally account for the 27-case gap. The more evidence we provided, the more Felch seemed convinced that the College was purposefully covering up cases. Furthermore, Felch contacted Tranquada on multiple occasions for clarification on whether anonymous reports were included in the 2012 ASR, as documented in Felch’s statement of March 19, 2013:

Regarding the Dec 7th story, I began seeking information and comment from Occidental on Oct. 14th. Suspecting the 27 cases may not have been disclosed because they were reported anonymously, I wrote the college spokesman Jim Tranquada on Oct. 14th: “I’d like some details on Oxy’s sexual violence anonymous reporting form. When was the system first put in place? Who administers the system? What is the process for including reports submitted here into the Clery data? Has that process changed in recent years? In addition, please provide me with a copy of all data submitted through the form for the past five years, excluding the name of the accused. Finally, has this data been accurately reported in Clery Act reports in years past?”

On Oct 18, I received the following statement from Tranquada: “Given the two investigations currently underway by the Department of Education, we believe our students will be best served by the conclusions reached through these comprehensive, thorough, and public reviews. In the meantime, Occidental continues to move ahead with its efforts to improve its policies and procedures to ensure the College is a national leader in dealing with sexual misconduct.” I immediately followed up with another email: “Jim, my understanding is that none of the complaints filed through the college’s anonymous reporting form were being included in Clery reports. This oversight was discovered in the spring of 2013. So: How many reports have been made through the anonymous reporting page since the page was created in 2009 (the date of creation you provided in our conversation today)? Were all of those reports included in Occidental’s annual Clery reports in a timely way?” His reply: “Our statement will have to stand as is.”

I continued to press Tranquada during October and November, including the claim made in the federal Clery complaint that the Dean of Students’ office had received 34 reports of sexual assaults in 2012, while Occidental only reported 7 of them. Tranquada said he had not seen the federal complaint and could not comment beyond his earlier statement. He requested a copy of the confidential complaint and I declined. Instead, I described the story in detail and requested interviews with three administrators who would be named in the story. He declined to provide any of them, and they did not return calls to home and work over several weeks. When pressed repeatedly on and off the record about the discrepancy in Occidental’s reported statistics, Tranquada conceded the college had made reporting errors, without specifying what they were. To reflect this admission, he agreed to be quoted saying, “Clery reporting is clearly an area where we need to improve.”

Felch was right to focus on missing anonymous reports since the Deans admitted they excluded these cases during our October 19, 2013 meeting. Also, the College had previously acknowledged that they failed to report 19 anonymous cases in their 2010 ASR to a Huffington Post reporter. Campus Safety Director Holly Nieto was quoted in Felch’s story saying that a rapid jump in sexual assault reports in the daily crime log in 2013 “came from an anonymous reporting form that we — the institution, bigger than me — now understand need to be included in our stats. So we caught up, if you will.”

Zero Anonymous Reports in 2012

Setting aside Dean Avery’s repeated report of 34 cases for a moment, our federal complaint includes hard evidence that Occidental College did not report a single anonymous case in 2012, evidence that I shared with Felch last fall. The 2012 ASR includes a total of 7 cases, and our federal complaint includes a total of 7 students who reported this crime in person to the Dean of Student’s office that year. This means that the 2012 ASR includes zero cases from the anonymous reporting system in 2012.

(As an aside, it is highly unlikely that our federal complaints would include all of the assaults/rapes that occurred on campus in 2012 since we only included cases that were woefully mishandled. If the College’s ASR number is accurate, this means that 100% of survivors reported that administrators mishandled their case in 2012.)

So just how many anonymous cases did the College fail to report in 2012? We cannot know for sure since the College refuses to release this information, but we can generate an estimate based on a December 19, 2013 email from Jim Tranquada that the College averages “between 5-6 online anonymous reports per month.” Using unrealistically conservative assumptions (5 reports per month during the 8 months students are on campus, and assuming that only half occurred within the reporting area), we can confidently estimate that College failed to report at least 20 anonymous cases in their 2012 ASR.

The Retraction

Last month, Oxy representatives from the crisis management PR firm G.F. Bunting met twice with Los Angeles Times editor Davan Maharaj. (President Veitch hired Bunting because of the firm’s professional ties to The Times and personal ties to Felch. Senior Executive Ralph Frammolino is Felch’s co-author and arch-enemy due to a contract dispute.) Bunting representatives convinced Maharaj that the College was not legally required to disclose any of the 27 cases to the public. It remains a mystery as to why they came forward now with information that the College has had for nearly two years but has repeatedly refused to share with others.

College representatives presented a new set of explanations for the gap — 18 involved sexual misconduct but not sexual battery, assault, or rape; 6 occurred off-campus; and 3 cases had already been reported in the 2011 ASR. They made no mention of the missing anonymous cases. The College has refused to release the PowerPoint presentation to reporters and the Oxy community, even to a committee that President Veitch established to improve sexual assault issues.

A week after The Times’ retraction, a College representative furnished a fourth, contradictory explanation for the gap — that some of the 27 cases were explained away because the adjudication process found them to be consensual. This criterion is a clear violation of Clery reporting requirements.

So how did Occidental representatives convince the leadership of The Los Angeles Timesto issue such a drastic response to Felch’s story given that the numbers do not add up? The red herring revelation of Felch’s “inappropriate relationship” with an Oxy source undoubtedly backed Maharaj into a corner. The relationship is a red herring because the source in question was one of 11 sources, and any information she provided was duplicative of the federal complaints and other sources. I advised Maharaj that he had been misled about the numbers in a March 17, 2014 email, to which he never replied. But beyond the relationship, it is apparent that Oxy representatives played upon ignorance of Clery reporting requirements. For example, when faculty asked what information was provided to The Los Angeles Times, President Jonathan Veitch claimed that “people” were confusing “Clery reportable numbers” and “Title IX reportable numbers.” There is no such thing as “Title IX reportable numbers.”

In conclusion to a story that is far from over, Occidental College administrators have given conflicting explanations for the 27-case gap in the 2012 ASR, and some of their explanations are blatant violations of federal Clery reporting requirements. Furthermore, we have hard evidence that the 2012 ASR does not include a single anonymous report. Oxy under-reported its 2012 sexual assault/rape numbers, and The Los Angeles Times should not have issued its retraction. And if the numbers played any role in Felch’s firing, The Times has an ethical obligation to reconsider this decision as well.

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Caroline Heldman is the Chair of the Politics Department at Occidental College and a co-founder of the Oxy Sexual Assault Coalition (OSAC). She is also the lead complainant on the Clery and Title IX complaints filed against Occidental College on April 1, 2013 and April 18, 2013, respectively. Dr. Heldman is one of eleven people that reporter Jason Felch used to source his stories on Occidental College’s ongoing issues with sexual assault/rape. She was the primary source for Felch’s December 7, 2013 article asserting that Occidental College failed to report 27 cases of sexual assault/rape in 2012.

This piece originally appeared on Caroline Heldman’s personal blog. Republished with permission.