After Reporting Rape, Swimmer Says UVM Mishandled Investigation

9/23/2020 After reporting rape, swimmer says UVM mishandled investigation
VERMONT
'I wanted justice': After reporting rape,

swimmer says UVM mishandled
investigation
Alex Abrami Burlington Free Press
Published 7:55 a.m. ET Sep. 23, 2020
One year ago, Kendall Ware’s life was rocked to its core.
On the night of Sept. 7, 2019, Ware says that she and a men’s basketball player, both students
at the University of Vermont, retreated to his bedroom during an off-campus house party in
Burlington. They intended to discuss their fizzled relationship.
It was there, alone, Ware said she was raped by the player.
"We were having a conversation and the next thing I remember saying was, 'stop,' and,
'no,' and him saying, 'just take it,'" Ware said. "I just remember having the thought of, 'I can’t
believe he just did this.'"
Thirty days after the alleged sexual assault, Ware, who didn't want to pursue criminal
charges, filed a complaint with UVM, hoping the school would investigate. Ware said UVM
misrepresented her options for holding her aggressor accountable, presenting her with a
choice between pursuing harsh punishment for the player or none at all. According to Ware,
she was pressured, largely due to the involvement of the athletic department, to resolve the
complaint in a way she regrets.
Ware, a member of the UVM swim team, said she also feared community backlash.
UVM has declined to comment on Ware’s case. The school denied Free Press requests
for interviews with the administrators involved in Ware’s Title IX complaint. Title IX is a civil
rights law that protects people from discrimination based on sex in federally-aided education
programs.
“Unfortunately, the university is proscribed by federal law from engaging in the discussion
you request,” Sharon Reich Paulsen, the school's general counsel, wrote in an email. “I can
https://www.burlingtonfreepress.com/story/sports/college/vermont/2020/09/23/after-reporting-rape-swimmer-says-uvm-mishandled-investigation/34078… 1/9
say that our Title IX staff and our athletics staff are well trained and dedicated professionals
and they comply with all ethical and legal standards.”
Ware said she and the player signed a non-disciplinary agreement, an informal resolution,
through the Office of Affirmative Action and Equal Opportunity (AAEO), which investigates
UVM's cases of sexual misconduct, among other matters.
Unsatisfied with the results and the process, Ware joined a group of women who are suing
the NCAA, alleging a failure to protect them from sexual assault. The women, according to
their representation, want the NCAA to take a harsher stance on penalties for athletes who
are facing or convicted of sexual assault charges.
College athletes cannot lose their NCAA eligibility from sexual assault cases, according to a
USA TODAY investigation last year.
Related: NCAA adopts policy to vet college athletes for sexual assault, but lets them stay
eligible
When the Free Press reported on the lawsuit in May, Ware and UVM were not named, nor
was the accused. UVM and the America East Conference are not defendants in the lawsuit.
This summer, Ware, from Canandaigua, New York, decided to come forward and speak out.
In interviews conducted over Zoom, she declined to disclose the name of the Catamounts’
player or whether he is a current member of the team.
“The reason I’m choosing not to name him, I don’t want it to become all about him,” Ware
said. “He’s not in any way, shape or form involved in my life presently. But there’s that
shadow that’s been cast over me from the assault.
“At this point, I’m more upset and unhappy with how the school handled things,” Ware said.
The Free Press reached out to the player, who declined to be interviewed for this story.
The aftermath of the alleged rape

The toll of the relationship and the sadness of the breakup spun Ware into a dejected state.
Then the incident happened, further wrecking Ware's mental stability. Ware, outwardly
expressing suicidal thoughts to the player, stayed the night after the alleged assault
and didn't leave his bedroom until the following afternoon.
Ware knew the player heard her say "stop" and "no," she said, because he responded with
"just take it." The player told her he didn't think they should sleep together again because it
wasn't good for her, according to Ware, which she interpreted as the player admitting a
mistake.
"It shocked my world. I didn’t ever think he could do something like this to me, especially
because he said he loved me and all of that," Ware said.
"I had completely broken down and I had thoughts of driving to the New York border and
jumping off (the Lake Champlain Bridge)," Ware said.
Concerned for her well-being, Marcie Ware, Ware's mother, drove six hours from her
western New York home to Burlington to stay with her daughter.
During the week-long visit, Kendall Ware didn't tell her mother about the alleged assault. But
Marcie Ware knew her daughter's anxiety stemmed from the relationship with the player. It
was difficult, she said, because her daughter was "not the type of person to be that upset over
a guy."
"I knew she felt heartbroken, I knew she had been upset and cared for him deeply," Marcie
Ware said. "But the depth of her despair didn’t seem to match — it was more than just a
breakup. But I didn’t know, I didn’t think it was anything like that."
Teammates on the UVM swim team also grew concerned. On Sept. 9, two days after the
incident, five of them submitted C.A.R.E. forms — the school's method for alerting officials
about a "Concerning And/or Risky Event" — on Ware's behalf through UVM's online
reporting portal.
Ware also began taking anti-anxiety medication that week.
A month went by before Ware was ready to report the alleged rape to school officials.
Ware: UVM 'misled' during process

Ware struggled to understand the avenues at her disposal due to misinformation from school
officials, according to interviews with Ware and her mother, the NCAA lawsuit and other
documents the Free Press obtained from Ware's lawyer.
On Oct. 7, 2019, Ware spoke with a UVM campus victim advocate and detailed her
recollection of the incident. The advocate informed Ware of the Title IX formal investigation
and her option to pursue criminal charges. At a second meeting, on Oct. 15, Ware decided to
report the alleged sexual assault to the Title IX office and not involve law enforcement,
according to the NCAA lawsuit.
Ten days later, Ware sat down with Kate Spence, a Title IX investigator who works for the
university's AAEO office.
During the meeting with Spence, Ware said she first learned of her two options moving
forward: an informal or a formal route. How UVM presented those options is at the heart of
why Ware believes the school misguided her.
The informal resolution, into which both parties must voluntarily agree to enter, is an
attempt by AAEO to resolve the matter without a formal investigation. A disciplinary process
is not part of the informal resolution, according to UVM policy, which was updated with
changes that took effect on Aug. 14 to comply with new federal regulations.
A formal resolution is a four-step process that includes an investigation, and if the person is
found responsible, concludes with disciplinary action and possible appeals. The formal
option takes about 60 days to complete, but could take longer based on the case, UVM policy
states.
Ware decided to go with the formal investigation after she was told the informal resolution
couldn't include discipline for the player, according to Ware. She then told her swim coaches
and team advisor Krista Balogh, an associate athletic director, of her decision.
While she was not obligated to involve other school officials outside AAEO, according to
school policy, Ware met with Balogh, athletic director Jeff Schulman and Dr. Cathy
Osmers Rahill, an associate AD who also serves as a Title IX deputy coordinator. Ware said
she reiterated she wanted to pursue a formal investigation.
Ware said she told each person she met the same thing: She didn't want to "ruin his life," but
wanted him to be held responsible.
"I wanted justice to be served," Ware said.
A few hours after her meeting with athletic department leaders, Ware received a call from an
AAEO administrator, asking Ware to rethink her decision and consider the informal option,
according to the lawsuit filed against the NCAA.
"They said it didn’t sound like I knew what I wanted and that it didn’t seem like a formal
investigation was what I wanted," Ware said.
The day after she met with the athletic department leaders, Ware met with Balogh and Title
IX outreach coordinator Taryn Moran at the AAEO office. According to Ware, Moran
explained that the informal option could involve game suspension and mandatory
counseling, which conflicted with what Ware said she was initially told. Upon hearing
this, Ware opted for the informal resolution because she believed it could result in
disciplinary action against the player.
Ware met with Balogh and an outside facilitator obtained by AAEO on Nov. 4, according to
Ware. During the four-hour session, the facilitator told her that mandatory counseling and
game suspensions were not possible under the informal resolution, the lawsuit said.
The facilitator also told Ware that he thought she had a strong case for the formal option, and
that he felt sorry UVM had dragged her through several twists and turns, according to the
complaint.
"I definitely feel I was misled, unfortunately," Ware said.
Pressure of public exposure

After the meeting with the facilitator, Ware said she asked her mother to speak with Balogh.
During a 23-minute phone conversation on Nov. 5, Balogh told Marcie Ware that the formal
option would result in immediate suspension, pending an investigation that could take up to
five months.
"I remember everything about the conversation. She specifically told me that he would be
suspended" with the formal option, Marcie Ware said.
Balogh told Marcie Ware that the informal resolution couldn't include game suspension, she
said, because "that wouldn't be fair" to the player's teammates and "the community that
comes out and watches him play."
The phone conversation with Balogh "probably had the biggest impact" on her daughter's
decision to ultimately go with the informal resolution, Marcie Ware said.
"I think in some ways she was re-traumatized by the response (of the school)."
Kendall Ware said the possibility of public exposure weighed on her.
"After considering the fact that I didn’t want the community to know and I didn’t want to
experience retaliation from my fellow student-athletes and just the Burlington area, I just
decided that the informal option would be the way to go," Ware said.
The school handled her case differently because the accused was a basketball player, Ware
said.
"I was continuously misinformed and I truly don’t think UVM — the athletic department
specifically — wanted me to do the formal investigation because he would’ve been found
responsible," Ware said. "I was 19. It’s not something you are expecting to navigate at that
age, especially when people who are supposed to be protecting you and having your best
interests at heart aren’t doing that and are giving you the wrong information over and over
again."
The informal resolution
On Nov. 19, Kendall Ware signed the informal resolution, a non-disciplinary agreement, and
sent a copy to AAEO director Nicholas Stanton, the lawsuit said.
In the resolution, which the Free Press obtained through Ware's lawyer, the player received a
notice of investigation letter on Oct. 21, based on the alleged conduct, which notified him that
the informal option was available.
The letter also stated that "if the informal process did not result in an agreed-upon
resolution, then AAEO could commence a formal investigation into whether" the player
violated UVM's sexual misconduct policy, according to the resolution.
The final terms of the resolution included:
No direct contact between the two parties while enrolled at UVM (a no-contact order was
issued on Oct. 21.)
The player must complete a healthy masculine identity program.
The player agreed not to attend the 2020 Rally Awards at the Flynn Center (the year-end
sports celebration was held virtually due to COVID-19).
The player will be present to hear Ware's victim impact statement via video conference.
Ware sought answers after the case was closed

On Jan. 9, three days after reading the victim impact statement to the player, Ware met with
Balogh and Schulman.
Ware said Schulman told her that suspensions during pending formal investigations only
take place in cases of public arrests, in stark contrast to what Marcie Ware said Balogh told
her in November. Kendall Ware said she wanted the player to receive some form of game
suspension, but not to the extent that it would cost him the entire basketball season.
Hoping for clarity on the new information Schulman revealed to her daughter, Marcie Ware
sought to set up a conference call with Schulman, Balogh and Stanton. In an email dated Jan.
22, 2020, Ware wrote that she believed the athletic department lacked transparency during
the process, and that added to her daughter's emotional distress.
Only Stanton responded, in a detailed response on Feb. 6, writing the athletic department
"does not and did not have a role in the AAEO process."
"For me, it’s hard to see how (the athletic department) didn't have any influence," Kendall
Ware said. "In my mind, it’s really not the (AAEO) office that drove me in the wrong
direction. I think it was mostly the athletic department."
UVM declines multiple interview, records requests

In addition to declining to comment on Ware's case for this story, UVM previously denied the
newspaper's public records request for all Title IX investigations and complaints regarding
sexual assault cases from last fall, citing student records as exempt from the Vermont Public
Records Act. UVM President Suresh Garimella also turned down the Free Press' appeal to
that request.
Ware asked for a copy of her Title IX case on Sept. 8 and agreed to share it with the Free
Press. But UVM denied her written request, according to Ware's lawyer, Karen Truszkowski,
who declined to provide the school's reasons.
Independent of that request, the Free Press also asked UVM if written permission from
Ware would allow the school to release the case documents to the newspaper.
Permission "from only one party" is "not sufficient," and both students involved would need
to grant permission on the request to disclose records, said Gary Derr, UVM's vice president
for operations and public safety.
The Free Press emailed another UVM spokesperson to see if Stanton, the director of the
AAEO office, could respond to general questions regarding UVM's policy and procedures on
sexual misconduct cases and did not receive a response.
Back in May, when the identity of the America East school in the NCAA complaint was
unknown, Schulman responded to the lawsuit with a written statement, saying no institution
in the conference could comment on the specifics of the case because of student privacy
concerns.
"We have clear policies in place that prohibit sexual misconduct in any form," Schulman
wrote. "The policies and our expectations are communicated very directly to student-
athletes, coaches and staff through a variety of training and educational programs."
Schulman said all allegations of sexual misconduct are immediately referred to the Title IX
office, which operates completely independent of the athletic department.
"At that point, our only role is to provide personal support for any student-athlete who may
request it, and in the event of a finding of responsibility, to apply our student-athlete code of
conduct as appropriate," Schulman wrote.
A spokesperson from the Office for Civil Rights at the U.S. Department of Education told the
Free Press they do not have any recent investigations on file from UVM.
Why Ware has come forward now

Through her representation, Truszkowski, and victim advocate Katherine Redmond, Ware
reached out to the Free Press this summer to reveal her and her school’s identity.
In April, when the complaint was first filed in a Michigan court system, Ware wasn't yet
ready to address the issue publicly. A refiling of the complaint in June still lists Ware
and UVM as unnamed.
There are multiple reasons why Ware changed her mind. Not only does she feel she would've
gone with the formal investigation if provided a clearer understanding of her choices,
Ware wants people to know that it's possible to be assaulted by a friend or significant other.
"I think a lot of times people, especially college students think, 'Oh it’s just going to be a guy
at party, I might got roofied. Or it could be a stranger in a dark alley,'" Ware said.
"I want people to know that whether they are your husband, wife, partner, boyfriend, ex-
boyfriend, girlfriend, ex-girlfriend — whatever — no means no and that kind of behavior is
not acceptable."
Although UVM is not a defendant in the NCAA lawsuit, Ware's lawyer is seeking
compensation for Ware and her family. A letter dated June 22, 2020, asked UVM to pay
Ware $175,000 due to the experience she suffered, according to the settlement demand the
Free Press obtained from Ware's lawyer. If UVM refuses to settle, Ware is "prepared to
proceed with whatever legal remedies are available to her," according to the demand letter.
In the reply to the Free Press' interview requests, Sharon Reich Paulsen, UVM's general
counsel, did not answer questions about whether the school had responded to the settlement
demand.
After taking a redshirt season last winter on the UVM swim team, Ware is looking forward to
returning to the pool, should competition happen with the ongoing COVID-19 pandemic. She
also was accepted early admission to UVM's graduate program for speech pathology.
"I do love the school, I love the team, I love the coaches and my teammates. I would not be
here today without the support that I had from those people, especially last year," Ware said.
"I look at it as this: There's UVM, and then there's the athletic department. This experience
has forced me to look at it that way."
Contact Alex Abrami at aabrami@freepressmedia.com. Follow him on

Twitter: @aabrami5.
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9/23/2020 After reporting rape, swimmer says UVM mishandled investigation

'I wanted justice': After reporting rape,

The aftermath of the alleged rape

Ware also began taking anti-anxiety medication that week.

Ware: UVM 'misled' during process

"I wanted justice to be served," Ware said.

"I definitely feel I was misled, unfortunately," Ware said.

Pressure of public exposure

Kendall Ware said the possibility of public exposure weighed on her.

The final terms of the resolution included:

Ware sought answers after the case was closed

UVM declines multiple interview, records requests

Why Ware has come forward now

Contact Alex Abrami at aabrami@freepressmedia.com. Follow him on

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