Leave Campus Rape Charges to the Professionals

Feb. 12, 2016 (Mimesis Law) — Just when it looked like the rape hysteria was dying down this happened. TL;DR, a blogger with so-called ‘anti-feminist’ views gets accused of being pro-rape in an effort to silence him and shut down his planned meetups. The latter succeeded but the former failed miserably.

Also, this week, Kayne West declared Bill Cosby innocent of rape, setting off yet another media firestorm. Perhaps most notoriously, last year was the UVA rape hoax. And before that was the dust-up over how some of the media reports on video games, leading to characterizing the detractors of the media as promoters of rape culture.

While all of these events has generated countless tweets, blog posts, and articles, thus dominating the popular culture, the legal culture too has been affected. As lawyer and blogger Mike Cernovich remarked, law, like politics, is downstream from culture. In particular, there has been the movement to direct young women away from seeking redress through criminal system, instead encouraging victims to pursue offenders through administrative bodies, such as college campuses:

Law enforcement is a terrible option for campus rape survivors because it is ineffective and often re-traumatizing for survivors. But because schools have a national mandate to provide a safe and equitable learning environment, they are in a unique position to best adjudicate campus rapes. Therefore it is incumbent on them to establish fair, effective, and transparent reporting, investigation, adjudication and sanctioning processes that reflect best practices. It is also incumbent on administrators to work with local law enforcement to improve the way both institutions respond to this heinous crime.

The first sentence says it all really. My co-blogger, Scott Greenfield, a criminal defense attorney, has been critical of this approach to handling charges of rape:

There is no legal authority that gives rise to a college or university establishing an adjudication procedure for criminal conduct separate and apart from the criminal justice system. That OCR says so, upon pain of denying federal funding, without having employed the regulatory procedures needed to obtain the authority, seems to have flown over everyone’s head.

While colleges have no reason to challenge this scenario, and most happen to embrace the underlying progressive gender politics reflected by the “Dear Colleague” letters, unless and until the Department of Education actually pulls the plug on their federal funding — something that has never actually happened to any college or university — they have chosen the path of least resistance and allowed students to bear the brunt of a radical gambit by Catherine McKinnon that, over the past three decades, has finally slipped down the slope enough to be blindly accepted.”

It’s the federal government, Scott. When has a little thing like the lack of authority really mattered? But nobly, Greenfield continues to shout that the ‘emperor has no clothes’:

The fundamental flaws, the disconnect between the law as written, the law as held, have managed to elude many. The discussion has leaped over these basic issues, taking for granted that colleges have any business under Title IX playing at a half-baked legal system to condemn students as rapists. There is no basis in law to reach other concerns, whether of administrative rule-making propriety [sic] or how much due process a student deserves, until one surmounts the problem that Title IX does not authorize colleges to be in the rape-finding business in the first place. This cannot be forgotten. This should not be ignored, especially when the issue is discussed on a big soapbox like the Wall Street Journal.

Besides challenging the legal authority, Greenfield has also challenged the veracity of the evidence underpinning the demand for change:

Francis has two posts, both of which are long, academic in style and highly detailed. They’re entitled “How To Lie And Mislead With Rape Statistics,” parts one and two. Despite their length and style, they are provocative in the sense that they go where the numbers lead. As it turns out, only 7.8% of rape reports are true. * * * Francis’ posts address primarily the issue of false rape allegations, that claim at issue when advocates contend that all “survivors” must be believed, and that there are minimal, if any, false claims. Francis picks apart the studies, the methodologies, the assumptions and the biases behind the numbers. It’s tedious work, but if we’re to work with statistics to make a point, it’s critical work since we only blowing smoke if the stats are crap.

All of these posts, and others, are certainly worth a read, if you have any interest in this area. And right now, who doesn’t? Yet it’s rare for prosecutors to be asked to speak on this issue. Conversely, it seems all too common for non-prosecutors others to speak for prosecutors:

Conviction rates present a “perverse incentive” for prosecutors to pursue only the strongest cases that offer the highest probability that a DA can win the case, said the study’s authors, Kimberly A. Lonsway and Joanne Archambault. “A lot of the early civil rights cases, they weren’t pursued because they weren’t going to win,” said Lonsway, research director at End Violence Against Women International, who frequently trains law enforcement on sexual assault investigations. “We have to take the hard ones to make change.”

Winning, i.e. conviction rates, aren’t the overriding concern for most prosecutors. For example, sexual assault cases with child victims are some of the most difficult to prosecute. A colleague with decades of experience working in one of the most populous counties here once related that they were the most difficult, even more so than murder cases. Not only because of the child’s age, but when the offender is a member of the family, the child is often pressured to stay quiet or recant. And corroborating evidence is often scant. Yet, despite the chances of losing, many offices successfully prosecute these difficult cases.

On the other hand, prosecutors should be and generally are concerned about whether there is both probable cause and proof beyond a reasonable doubt. But it’s not tied to a consideration of the prosecutor’s personal win/loss record. Rather, it’s usually tied to the boring considerations such as the presentation of admissible evidence, credibility of witnesses, and the probability the jurors will be persuaded. Those sorts of things are relatively dry and outside the understanding of most journalists; so, the problem is reduced to “fear of losing.”

During voir dire, if the jury pool is asked whether the uncorroborated testimony of a single witness is enough to support a conviction, there is often a significant number of people that will disagree with that statement. You can strike as many as possible and hopefully educate the few, but in the nearly 75% of cases where the defendant and victim know each other, consent is going to be the issue that the case usually turns on.

This means the uncorroborated testimony of the victim is going to be the lynchpin of the case and some of the panel might be hostile to that fact. And if the victim is unwilling or unable to testify, then the prosecution will not be able to prove the case beyond a reasonable doubt.

Returning to the issue of campus rapes, it’s now easier to understand why certain groups want to drive these cases out of the criminal justice system and support things like affirmative consent. It’s easier to convict defendant without the benefit of due process. If victims don’t have to testify or are kept from cross-examination because of fears of re-victimization, then it makes prosecuting these matters much easier. Likewise, without compulsory process and discovery, defendants are extremely handicapped in presenting their defense. Imagine the efficiency of ‘trials’ conducted without testimony, evidence, and a presumption that the crime happened. Really, imagine the horror if you’re falsely accused.

The folks more cynical about prosecutors might think that all prosecutors would applaud getting ‘rapists’ by any means, even if that meant burning down the legal system. Foremost, without the impediments to prosecution already embedded in the legal system, there is quite likely to be more wrongful convictions. Although expulsion from college because of a false rape conviction might not carry with it a long prison sentence, it will carry with it many, many collateral consequences.

In addition, in the legal system, prosecutors have to consider the impact of a false accusation. Falsely charging someone with rape is the kind of thing that will haunt that person for the rest of their life. As discussed above, even the non-legal, but public accusation that someone is ‘pro-rape’ or a rapist is powerful.

This is true even if they are acquitted and get the charge expunged, because in most places it’s news, thus there are usually news articles, blog posts, tweets, and so on about the charge. It’s a bell that can’t be unrung. Even with the hoax revealed, the UVA fraternity members’ lives are forever changed. But unlike prosecutors who can face being disbarred or losing an election, college administrators have no check on them whatsoever for reckless charging.

Finally, in cases where prosecutors could secure a conviction against a rapist, the college process is likely to thwart that. Even if the campus police were involved, they aren’t trained and seasoned investigators. They are likely to spoil evidence and taint witnesses. Once the investigation is mishandled, it is extremely difficult to build a successful case.

College campuses should stick to their educational mission and leave chasing the bad guys to the professionals.

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