Still speaking out

Welcome news reached Rachael Denhollander unexpectedly on a Tuesday in April.

She was at home in Fisherville, Ky. cooking dinner for her four children when she heard the news.

The U.S. Justice Department announced that it would pay $138.7 million to some of the victims of convicted serial sex abuser and former USA Gymnastics doctor Larry Nassar. The payment settled 139 claims that the FBI grossly mishandled numerous complaints in 2016 and 2017 of Nassar abusing young gymnasts.

Denhollander said she was grateful. Though not a claimant in the settlement herself, she said it was a vindication for her. She was the first woman to come forward to publicly accuse Nassar.

In 2000, Denhollander was a 15-year-old gymnast for USA Gymnastics. The Indianapolis-based group is the national governing body for the sport and a member of the U.S. Olympic Committee.

While training at the facility, Denhollander sought treatment from Nassar, a Michigan State University doctor, for back pain. Under the guise of administering treatment, Nassar sexually abused her. Sixteen years later, Denhollander filed a complaint under Title IX, the law that bars sex discrimination in education. (Nassar was also a doctor for the Michigan State University gymnastics team.) She says her actions were prompted, in part, by an in-depth investigative report on USA Gymnastics published that year by The Indianapolis Star. After she spoke up, more than 200 additional victims of Nassar came forward. When he was sentenced two years later, Denhollander and more than 150 of the women he abused confronted him. In a Michigan county courthouse, Judge Rosemarie Aquilina sentenced him to up to 174 years in prison, telling him he did not deserve to ever leave prison.

While the sentencing addressed the punishment of the perpetrator, Denhollander says last week’s settlement disciplined the FBI for enabling Nassar when it failed to act on sexual abuse complaints agents were aware of for more than a year. FBI Director Christopher Wray publicly apologized after the initial revelation in 2021 that FBI agents bungled the case.

Denhollander says such public admission of wrongdoing by federal agencies is “quite unusual,” and the public should always hold law enforcement to high standards.

“There certainly are individuals … that have done the right thing at very high cost,” she said. “But that's not always the case. In fact, a lot of times that’s not the case.”

Seeking a higher standard

The Justice Department announced in May 2022 that no charges would be filed against two FBI agents who were accused of providing inaccurate or incomplete information to investigators about their work on the Nassar case. The Justice Department reasoned that the evidence of wrongdoing was not enough to bring a federal criminal case. Denhollander believes part of the problem is the legal doctrine of sovereign immunity, which protects a state or sovereign from being sued in federal or state court except under certain circumstances. Advocates of sovereign immunity over the years have pointed out that it’s a common law doctrine with roots in the 11th Amendment to the U.S. Constitution, that keeps the government from having to change its policies any time a constituent disagrees.

Denhollander believes it’s often used to shield government and law enforcement officials from prosecution when they fail to do their jobs. Prosecutors often lack a legal mechanism to hold such individuals accountable, even those who use their power and authority for corrupt and unethical behavior, she said.

She also believes Title IX needs to be modified. Signed into law in 1972, Title IX of the Civil Rights Act is enforced by the U.S. Department of Education’s Civil Rights. It specifically prohibits sex discrimination at schools and educational programs that receive federal funding, but controversies have erupted in recent years over its enforcement.

Title IX entered a new chapter last month when the Biden administration announced its decision to roll back certain Trump-era changes to its enforcement. Denhollander says much will depend on how Biden’s new Title IX rule is implemented, but for the most part she supports the Biden provisions that pertain to sexual abuse investigations. She says the previous enforcement rules announced by then-Education Secretary Betsy DeVos in May 2020 were actually harmful to abuse victims and needed to be rolled back.

“They really stripped Title IX of a significant amount of its impact and its ability to protect against sexual assault,” she said. “The Biden administration is undoing some of those changes.”

For the defense

Not everyone agrees with the Biden administration’s overhaul of Title IX rules.

The changes also included an expansion of the definition of “sex” to include gender identity. Conservatives are concerned that could lead to discipline for individuals who do not use people’s preferred pronouns. It might also cause the government to penalize schools that require students to use restroom facilities that correspond to their biological sex. Denhollander declined to comment on those aspects of the changes and admitted much will depend on how the rule change is enforced.

The Biden administration also removed the requirement that investigations into accusations of sex abuse include an in-person hearing—a policy put in place during the Trump administration. At the hearings, a representative of the accused could cross-examine the accuser and ask follow-up questions.

”That had the effect of really helping you get to the truth,” said Justin Dillon, a former U.S. attorney with experience handling Title IX cases. “People were asked hard questions and follow-up questions in real-time, and I think that made an enormous difference.”

Under the latest changes, the accused person will only be allowed to pass on questions to the victim, whose answers will be recorded.

The Biden administration is also reverting to a “single investigator” model for Title IX cases, making a sole administrator responsible for investigating and judging the case.

Tyler Coward, the lead counsel for the Foundation for Individual Rights and Expression, says that gives one person too much power.

“Tasking one person to have all these different roles and authority is ripe for abuse, it’s ripe for bias, and ultimately undermines the credibility of the entire process,” he said. That’s not the standard for criminal cases. “We certainly don’t allow one person to enjoy all that authority in the criminal context.”

Denhollander believes much of the opposition to the single-investigator model stems from a lack of understanding about the safeguards in place, as well as the licensing and ethical requirements the investigators are held to. She knows investigators must find a balance between protecting potential abuse victims from trauma while also preserving the due process rights of the accused. She also pointed to Department of Justice and FBI statistics compiled by the Rape, Abuse, and Incest National Network that state that out of every 1,000 sexual assaults, only about 300 are reported and only 50 will lead to an arrest.

“Do we want to guard very carefully against false allegations?” she asked. “Absolutely, yes. But is that the greatest problem facing us? On a statistical level, what is more likely? If someone more likely to be a victim of sexual assault or more likely to be falsely accused?”

A theology of justice

Denhollander’s role as an attorney and victims advocate often involves providing spiritual counsel to abuse victims who feel they’ve lost their faith in Jesus Christ. When that happens, she opens the Bible to a passage in Revelation that describes Jesus riding on a white horse, wearing a robe dipped in blood, and bearing a sword of justice. While some see the image as frightening, she says it comforts her.

“I always heard the wrath of God taught as something I should be afraid of. I never heard the wrath of God taught as something that was done on my behalf,” she said. “I always had the cross of Christ presented to me as, ‘This is how serious your sin is.’ And I needed to hear that. But nobody ever pointed to the cross and said, ‘This is how serious what was done to you was.’ We need both.”