College Rape Charges: Growing Danger to Due Process and Justice

Awhile back, we posted about the national focus on a “rape culture” existing on U.S. college campuses, and how the federal government was investigating several schools — including Southern Methodist University (SMU) here in Dallas — for failing to deal effectively with the problem of sexual assaults on their campuses.  See, “SEXUAL ASSAULTS ON CAMPUS: SMU INVESTIGATED BY FEDS FOR FAILURE TO PROPERLY DEAL WITH CAMPUS RAPE CRIMES.”

Colleges and Rape Charges: Internal Courts?

In fact, the Department of Education has placed a duty upon these institutes of higher learning not only to push for higher safety and public awareness of the dangers of rape on American college campuses, the DOE requires the university or college to take on the job of investigating and disciplining cases discovered on their campuses.

That’s right. When there’s a complaint of sexual assault among students on a college campus, there’s a different procedure than if the same exact charge happened absolutely anyplace else.

Students face having proceedings that include their administration doing things like:

• police-type jobs like investigation (gather testimony and documentation as possible evidence);
• prosecutorial roles (point the finger at the alleged wrongdoer who may have committed a sexual assault at their institution);
• the role of judge and jury (deciding guilt and the resulting punishment).

In tandem with this are additional concerns:

• the definition of “sexual assault” may be very different for the school than how this term is defined in their Penal Code;
• the protections of having a lawyer present before questioning (”Miranda warning”) may or may not be kept;
• the concept of innocent until proven guilty may not exist as a reality here as the college culture appears to sway towards trust of the accuser and their rights, at the expense of the accused and his/her legal protections.

New California Law Adds More Confusion and Chaos to College Rape Cases

Now, there’s a concern that states are going to overreach here. Already, in response to the outcry over sexual assaults on college campuses, California has passed new legislation that mandates California’s universities must have language in their policies that specifically defines “sexual assault” as “… an affirmative, conscious and voluntary agreement to engage in sexual activity.”

What does that mean????

Silence cannot be assumed to mean an agreement to have sex. Not resisting sexual advances cannot be assumed to mean an agreement to have sex. And if someone’s high or has a buzz from drinking or drugging, it doesn’t have any bearing on a future sexual assault charge.

The new California law is being called the “yes means yes” law and it’s moving California colleges as well as California sexual assault prosecutions into dangerous legal waters.

Remember those years when you were college-age? Is it inconceivable that the perspective of a tryst the night before changes in the morning light — not because rape was truly involved, but because of embarrassment, shame, confusion, or even manipulation, revenge, or anger?

Clear standards, clear laws, and clear process — due process — are never more necessary than in these kinds of cases.

There are Dangers Here

Moving away from the penal code definition of “sexual assault” or “rape” is dangerous. Legislation is debated among lawmakers before being finalized, then it is tested in the courthouses of the state and federal jurisdictions for its constitutional strength.

Longstanding “sexual assault” criminal definitions are stricter and more clearly defined than the new California college policy definition as well as “sexual assault” definitions used at various universities and colleges.

This increases the risk of chaos. Who really understands where the line is drawn now, when is it rape and when is it NOT rape? The public needs to know — students need to know what those boundaries are.

Moreover, how is someone to successfully defend against these charges? Where’s the standard for their motion to suppress evidence that isn’t authenticated or isn’t admissible? Who makes that ruling?

It also endangers those accused with not only being unfairly labeled as a rapist at particularly young age and vulnerable time of life, since most college students are in their late teens or early twenties, and transitioning into independence from their family dynamic.

These amorphous sexual assault procedures of school administrators risks people who are not guilty of a crime being permanently harmed.

Civil Rights Violations

Legally, this can and will in some cases amount to constitutional violations of their civil rights. Expect to see more and more lawsuits being filed by innocent men and women who have been unjustly accused of raping someone.

There’s already a growing wave of these civil rights cases being filed across the country, including cases being filed by students at Brandeis University, Brown University, Delaware State University, Occidental College, Swartmore College, and Xavier University.

College Rape Cases Can Be Prosecuted by Local Authorities

College campuses aren’t in an alternative universe and they aren’t a special kind of jurisdiction, like a foreign embassy or a Tribal lands. They sit within counties, and cities, and states. Surely a call to the local police on sexual assault charges provides the protections needed here.

Rape is a serious thing. Victims of rape, as well as those accused of sexual assault, deserve better than these college administration endeavors.