College Rape Charges: Students Arrested for Sexual Assault and Fixing the Current Kangaroo Court System

Campus rape charges are being made much more often today. However, there’s a big problem with sexual assault charges when students are involved and it’s an injustice everyone needs to recognize and which needs to be fixed.

Here’s the thing: allegations of rape or sexual assault on a school campus often involve a whole different system in the investigation and “prosecution” of the student rape claims. Many people assume that if a college student goes to the authorities to report a rape or sexual assault, the local police department or sheriff’s office becomes immediately involved and the standard, traditional process of the American criminal justice system swings into action.

This is not true. When reports of sex crimes like rape, attempted rape, or sexual assault are made on a campus, there’s an entirely different system that goes into action — and the local city police department or county sheriff’s office may have no knowledge whatsoever that the report has been made. That’s because on college and university campuses, the school itself is involved in investigation of the alleged crime.

Right now, rape and sexual assault reports are investigated by campus police and “prosecuted” as disciplinary rule violations.

Injustice In Internal Campus Rape Investigations

And the result? Injustice for rape victims as well as those who have been falsely accused of sexual assault. Both accused and accuser are harmed. Why? Here are several big, big problems with the current situation (this is not a complete list, just some examples):

1. When these campus investigations — Kangaroo Courts, really — move forward, they do so with strange rules of evidence and what can and cannot be considered as authenticated and admissible evidence against the accused.  Things that would never be considered in the local criminal courtroom can be used against the accused here.
2. The burden of proof is skewed as well: for a criminal proceeding in a state or federal court, the evidence must meet the “beyond a reasonable doubt” standard. In these college tribunals, it’s much less even though the accusation involves a serious sex crime: e.g., the “preponderance of the evidence” level of proof is used (per federal policy). That’s the burden traditionally used for things like a breach of contract case, say where a student breaches a lease agreement, not for a criminal case like rape.  It’s much easier to “convict” the accused here because you don’t have the high hurdle established in a traditional criminal case.
3. Those who are making judgments in these college proceedings and making major, life-altering decisions for both the accused and the accuser, are “judges” who are far from being trained and experienced in the way that any setting criminal district trial judge must be (at either the state or federal level).  College administrators are not experts in crime or in criminal justice.

Campus Cases Cannot Withstand Criminal Justice System Scrutiny

Another big concern here: if the college tribunal does move forward and adjudge the accused as guilty of committing a serious sex crime, then what? More and more, criminal justice prosecutions of these college rape defendants cannot hold water. For more here, read “Yet Another High-Profile Campus Rape Case Falls Apart,” written by David French and published by the National Review on August 10, 2015.

Federal Safe Campus Act Proposed in August 2015

A few weeks ago, Texas Congresswoman Kay Granger and Texas Congressman Pete Sessions co-sponsored a bill in the House of Representatives with Arizona Congressman Matt Salmon that would provide greater protections for students accused of college rape as well as increasing the involvement of local and state law enforcement in these cases.  It’s called “the Safe Campus Act of 2015” and it addresses this huge problem. 

Read the full text of the proposed Safe Campus Act of 2015. 

Follow HR 3403’s progress through Congress online.

If the Safe Campus Act becomes federal law, then colleges and universities in Texas and the United States will have to report ALL complaints they receive regarding rape and sexual assault to the local police department, unless the accuser specifically asks for confidentiality. If the report is to be kept confidential, then no disciplinary action can be enforced against the accuser under the language of the Act. While the local police with their trained sex crimes detectives work the case, the campus would be required by law to take proactive steps like changing class schedules so the accuser and the accused would not be in contact.

Additionally, while the campus could still choose to have its own hearings on the alleged sexual assault, the accused would have a legal right to a criminal defense lawyer and all evidence that the college had regarding the case would have to be made available to the accused and his defense attorney.

Not All Sexual Encounters Gone Bad Meet the Legal Definition of Sexual Assault or Rape

There are critics of this pending legislation that argue it limits college rape investigations in a way that hurts rape victims and works to discourage young women from reporting campus rapes. However, this may not be a fair criticism from the victim’s point of view.

The reality is that the same circumstances that currently merit college tribunal labels of sexual assault and rape — resulting in “convictions” of accused students with the harm resulting from this (including expulsion from school, ruined reputations, etc.) — often would not result in criminal charges being filed, much less having a conviction with sentencing, if the case was filed with real police and outside of a campus jurisdiction.

Charges of rape or sexual assault in the traditional criminal justice system, for instance, include evidence of violence or coercive threats. Many of these campus rape charges fail to have evidence of this. What fails to meet the legal definition of a sex crime in the state or federal penal code is often prosecuted (and disciplined) as a rape or sexual assault by campus authorities. Both victim and accused in a campus “prosecution” deal with the labels of “sexual assault” and “campus rape” in a jumbled system where violent assaults and “non-consensual sex” are not sufficiently distinguished.

Not all sexual encounters gone bad — particularly ones that involve inexperienced participants who are emotional and immature — rise to the level of a felony sex crime. Counseling by campus authorities, not investigating as a rape, would serve both the accuser and the accused well in these circumstances.

If there is a real cry of rape, as that is defined in the state penal code, then let the criminal justice system already in place deal with that criminal charge. With the standard rules of evidence, burdens of proof, legal representation by a competent defense lawyer, and other due process guarantees that are sadly lacking on college and university campuses right now.

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For more information regarding the defense of people accused of rape and sexual assault, read “Top 10 Mistakes That Are Made in Defense of Sexual Assault and Indecency With a Child Cases.”

To learn more about Texas Sex Crimes generally, check out our web resources page or Michael Lowe’s Case Results.