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Sexual Assaults on Campus

This morning I stumbled upon a great piece on the unfair legal process being employed in sexual assault investigations and adjudications on college campuses, when I was reading one of my favorite op-ed writers, David Brooks of the New York Times.  Every year he gives out awards for the best online articles, called the “The Sidneys,” and this year he recommended one called “The College Rape Overcorrection,” by Emily Yoffee of Slate.com.  Here are my comments on the article and the problems with sexual assault claims that occur on campus:

Very interesting article.  As a criminal defense attorney and former FBI Agent, I am deeply troubled by these types of investigations. Allegations of rape are invariably very serious;  the allegations trigger a cascade of events that will impact the parties involved for the rest of their lives.  Investigations into rape allegations on campus must be thorough and complete, yet nuanced and sensitive;  unfortunately, in my experience, colleges and universities, and the campus police upon which they typically rely, are particularly ill-equipped to conduct them.

The lack of legal protections for the accused in these investigations and adjudications is shocking.  For example, the accused is not even guaranteed the right to counsel, a fundamental right embodied in our constitution.  By contrast, if the same student was accused of possession of marijuana, a misdemeanor offense in Michigan, he would have the right to counsel. Though the results of a sexual assault investigation could brand him/her a sex offender for the rest of his/her life—a label which has tangible fallout in addition to the stigma—this fundamental right is denied.

It is important to remember that we are talking about college kids, who are ill-equipped to defend themselves, probably fail to appreciate the long-lasting implications of even being accused (it will be on their permanent records), and are probably still reluctant to tell their parents they are in trouble (if my experience representing college students who don’t even want to tell their parents they have been charged with an MIP, DUI, or possession of marijuana is any indication).  The accused student may even believe that the university is looking out for his/her best interests–not an unreasonable thing to expect in other contexts–when, in fact, the opposite is true.  The university is seeking a confession or admission to substantiate the allegation.  If anybody needs a lawyer, it is these college kids.

Another glaring flaw in this system is that there is no right to confront one’s accuser, another fundamental constitutional right.  Imagine being falsely accused of rape and not being allowed to ask the accuser basic factual questions or, more fundamentally, whether they consented.  Has a fact-finding process lacking this basic control ever worked?

One can only hope that this “legal process,” lacking these basic legal protections, won’t last long, as it does not inspire any confidence that it is “getting it right.”  In the meantime, how many lives will be ruined by this “overcorrection” by the system?