Livingston County District Attorney Greg McCaffrey

Livingston County District Attorney Greg McCaffrey

GENESEO - Since he was first elected Livingston County District Attorney in 2012, Greg McCaffrey said he’s repeatedly sought to partner with SUNY Geneseo to decrease the number of sexual assaults that occur on campus and swiftly address those that do.

He’s asked the college to share more information with his office about assaults and to allow him to speak to incoming freshman during orientation about what his office does and what resources it can offer to victims of crime – sexual or otherwise. Each time, said McCaffrey, the college has rebuffed his requests.

“They always say ‘We can’t, Title IX, FERPA, blah blah, HIPAA, blah.’ I know all of that stuff, I’m well aware of the limitations that they’re under, but there’s still more they could do,” said McCaffrey, referring to the Health Insurance Portability and Accountability and Family Educational Rights and Privacy acts during an interview in September. “… I just want to assist the students. I just want them to know that my office is not a three-headed monster, we’re willing to help, we’re willing to assist.”

McCaffrey’s not even sure whether students who are victims of sexual assault who choose to report their assault to the college’s Title IX Office - which is responsible for responding to acts of sexual harassment, violence and assault that occur at the college - understand that doing so is not the same as notifying law enforcement.

The results of a 2019 survey of SUNY Geneseo students show McCaffrey’s fears are not baseless. Survey results show 41 percent of respondents answered “no” or “not sure” when asked whether they were aware of the difference between the college’s disciplinary process and the criminal justice system.

“That comes back to - let me on that campus, let me talk, let me become a visible presence, let me make that pitch and explain to them ‘Look, if you report something to your RA or residential director or Title IX, that does not mean that’s a report to me and law enforcement,’” he said. “I don’t know if they (college) want to have that dialogue.”

The college made clear in a federal grant application submitted to the Office on Violence Against Women (OVW) in 2020 that it understands the importance of partnering with McCaffrey’s office to develop “strategies that will increase prosecution of sexual assault, domestic violence, dating violence and stalking offenses” and “materials to educate students on available services and options for criminal prosecution” of such acts.

SUNY Geneseo declined to make Title IX Coordinator Marcus Foster or Chief Diversity Officer robbie routenberg available for interviews for this article.

The college did not offer meaningful answers to submitted questions about why it hadn’t allowed McCaffrey on campus or referred more sexual assault cases to his office. Instead, in a written statement attributed to them, Foster and routenberg said the college “would welcome the opportunity to collaboratively work with the district attorney’s office to ensure that members of the Geneseo campus have access to this additional resource.”

“Under the new leadership of Marcus Foster, the Title IX Office is committed to developing and strengthening local community partnerships, which would include the Livingston County District Attorney’s Office,” said Foster and routenberg in their statement. “We inform all individuals of their right to file a complaint with local law enforcement and pursue the matter through the criminal and civil process. Mr. McCaffrey is welcome to virtually connect with our students to discuss the criminal process associated with reports of sexual assault and related crimes.”

Following a recent meeting with Foster, who the college hired as its new Title IX coordinator in August 2020, McCaffrey expressed hope the college might be willing to work more closely with his office to combat sexual assault.

After the meeting, McCaffrey said the college invited him to conduct a virtual forum about his office, what services it can offer students and how his office interacts with defendants, witnesses and crime victims. The forum is scheduled for Feb. 25 at 3 p.m.

“For the first time in nine years, I have optimism something can change down there,” McCaffrey said.

Sexual assault at SUNY Geneseo

In its OVW grant application in 2020, the college acknowledged it has seen an increase in reported rapes on campus in recent years, though it didn’t specify the degree of the increase or over what period of time it occurred.

A 2019 survey of students offers, perhaps, the most accurate and up-to-date picture of the frequency and nature of sexual assault at the college.

The college conducted a Sexual Violence Prevention Campus Climate Survey from Feb. 11 to March 11, 2019. State education law requires colleges to conduct such surveys at least once every two years to gather information about the rate of incidents of interpersonal and sexual violence on campus. 19.4 percent of SUNY Geneseo’s student body – 1,026 students – responded to the survey, higher than the SUNY-wide response rate of 10.9 percent.

The survey asked students, among other things, what kinds of unwanted or non-consensual sexual experiences they’d had in the last year.

According to a County News review of the survey’s results, the most common experience among students was unwanted sexual comments, slurs or demeaning jokes, with 31 percent of those who responded to the question – 259 students - reporting such an experience. The second most common experience was receiving unwanted and sexually suggestive digital communications, with 23 percent of those who responded to the questions – 189 students - reporting having experienced such an incident.

A smaller percentage of students reported having experienced non-consensual physical contact of a sexual nature.

For example, 11 percent of those who responded to the question – 90 students – reported someone had fondled, kissed or rubbed up against “private areas” on their body without consent and 18 percent – 143 students - reported someone had attempted to do the same.

Three percent of those who responded to the question – 26 students - reported someone had either performed oral sex on them or they’d been forced to perform oral sex on someone else without consent while four percent – 35 students - reported someone had attempted the same.

Five percent of those who responded to the question – 38 students - reported either someone had vaginally or anally penetrated them or they were made to penetrate someone else without consent. Another four percent – 31 students - reported someone had attempted the same.

In all the survey questions listed above, women were much more likely than men to report having experienced such behavior. In several cases, including the questions about attempted and completed non-consensual penetration and oral sex, no males reported having experienced such incidents.

Of those students who reported having non-consensual or unwanted sexual experiences within the last year, 60 percent of those who responded to the question – 171 students - didn’t tell anyone about their experience. Eighty percent - 105 students - did not seek remedy through the college’s in-house student conduct process and 54 percent - 82 students - reported they didn’t feel their experience was important enough to report.

The data have little to say on where such incidents took place, i.e. on or near campus. It’s also not clear who committed the acts students reported experiencing. While some questions asked students for information about their perpetrator - “For the most recent incident, was the person affiliated with the campus community?” for instance – such a question fails to define “affiliation” and “campus community.”

Also unclear is whether it’s advisable to extrapolate the survey’s results out to SUNY Geneseo’s entire student body which, at about 5,000, is roughly five times the size of the number of students who responded to the survey.

To view full results from the survey, click here.

Results from the 2019 survey are at stark odds with figures on sexual assault reported by the college as part of its obligations under the Clery Act, a federal statute requiring colleges that receive federal funds to maintain and disclose certain types of crimes that are reported to campus or local law enforcement.

From 2017 to 2019, the most recent years for which there are available data, the college reported 11 forcible sex offenses – seven of rape and four of fondling – and zero non-forcible sex offenses (statutory rape and incest) had occurred within its reporting area, which covers the entire SUNY Geneseo campus and some adjoining public areas in the village of Geneseo.

Asked to reconcile the disparity, Foster and routenberg said the Clery Act delineates which offenses must be reported and disclosed.

“The definitions for these offenses may differ from definitions outlined in college-specific policies and our code of conduct,” they said. “Incidents that may violate college policies do not necessarily equate to a Clery Act reportable offense. The college remains committed to the accurate reporting of such alleged crimes.”

But SUNY Geneseo’s student code of conduct has nothing to do with the college’s crime reporting obligations under the Clery Act or the questions asked of students in the climate survey.

In fact, the definitions of certain types of crimes under the Clery Act and in the written questions asked of students in the climate survey are substantially similar.

For example, the Clery Act defines fondling – one of the crimes colleges are required to track and report on – as “the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim...”

One of the questions asked of students in the climate survey was “has someone fondled, kissed or rubbed up against the private areas of your body even though you did not give consent for that activity?”

The Clery Act’s definition of rape - “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim,” - is similar to the description of one of the acts students were asked if they’d experienced in the last year in the climate survey: “Has someone sexually penetrated you (that is, someone put a penis or inserted fingers or objects into your vagina or anus) or were you made to penetrate even though you did not give consent for that activity?”

The County News filed a freedom of information request on Aug. 13, 2020, for the results from the campus climate survey the college conducted in 2016. As of this writing, the college has not provided any records in response to the request.

College outreach falls short

As the County News previously reported (click here to read more), the Office on Violence Against Women denied in September 2020 a $300,000 grant request from the college that would have funded its PREVENT program - short for Prevention, Reduction and Education on Violence to Engage in Training – for three years.

Despite the funding denial, Foster and routenberg said the college remains “committed to providing comprehensive prevention education to all students” and is exploring other opportunities to continue such programming.

The college applied for, and received, a similar grant in 2017 which helped support its PREVENT program. McCaffrey said the college approached him about signing on to its 2017 grant application as an external law enforcement partner, but he refused.

“I was frustrated when they came to me a couple of years ago because they basically had been working on it for six to nine months and then pitched it to me and my victim coordinator, like, three days before it was due,” McCaffrey recalled. “I was like ‘Look, if you were really interested in me partnering with you, you would have brought this up sooner.’”

Last year, the college’s former Title IX Coordinator, Tamara Kenney, again approached McCaffrey about signing on to its grant application.

“I’m like ‘What do you really want of me other than my signature?’” McCaffrey said. “’What are you going to let me do?’”

McCaffrey asked if the college would let him come on campus and address incoming freshman during orientation. The college said no. He asked if the college would refer more sexual assault cases to him for review and possible prosecution, but the college was non-committal.

“‘Well, we’re going to figure out ways to do it,’” McCaffrey said the college told him. “I’m like ‘I have ways, refer them to me. What do you need to figure out? I can see your campus through my window. What do you need?’”

As he did in 2017, McCaffrey ultimately refused to sign the 2020 grant application because he got the impression the college was only approaching him to strengthen its application’s chances of being approved, not because it truly wanted to partner with his office, and because he didn’t have enough time to review the college’s application.

“The time frame they gave me wasn’t enough for me to hash out what my expectation was if I “ were to sign on as a law enforcement partner, he said.

Kenney, who’s since left the college and now works as dean of student wellbeing at Alfred University, declined to comment for this article.

If McCaffrey had his way, he’d bring his message directly to student organizations – fraternities, sororities, athletic teams and the like - and seek to impress on students the consequences of certain actions.

He’d tell students he’s not interested in pursuing and prosecuting every petty crime that might occur during a Saturday night keg party on Orchard Street - the de facto center of Greek life at the college. But if more serious allegations were to come to his attention – allegations of rape, for example – McCaffrey would make clear to students that he and his office stand ready to investigate and prosecute such conduct to the full extent of the law.

“If I get whiff of one of these things, you are all going down. I will put you in prison,” McCaffrey said he’d tell the students. “...Be college kids, you’re young, you’re smart academically but you’re stupid socially or immature socially. Just look out for each other and don’t put me in a spot where I really have to come after you, because I will.”

Continued McCaffrey: “Geneseo is what it is because of the college kids, I know all that. But at the same time, there’s certain things that will get swift, severe and harsh treatment.”

McCaffrey held up a case he’s currently prosecuting as an example of the real world implications of the college’s failure to refer sexual assault allegations to his office for review.

As the County News previously reported (click here to read more), a SUNY Geneseo student told the college she was the victim of a forcible, sexual assault in October 2014, but the college never notified outside law enforcement agencies or pursued criminal charges against the alleged perpetrator, another student named Philip Pang.

McCaffrey became aware of the allegations in July 2019 when the victim again reported the assault to members of the New York State Police.

A Livingston County Grand Jury ultimately indicted Pang, who’s now 28 years old, on two counts of criminal sex act in the first degree and two counts of sexual abuse in the first degree. The coronavirus pandemic has delayed Pang’s case, which remains open, said McCaffrey.

“He’s got two B violent felonies and two D felonies on something that happened in 2014, that was reported to campus conduct,” said McCaffrey. “She (victim) eventually dropped out of school. He (Pang) graduated from SUNY Geneseo and here we are, five years later. He’s indicted by a county grand jury the second I got wind of the case.”

The case “is not going to be a good look for SUNY Geneseo,” said McCaffrey. “Not when there’s documentation from the college that it was reported” in 2014.

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