Who should handle college rape investigations?

Posted at 8:00 AM, Nov 30, 2015
and last updated 2015-11-30 08:00:58-05

CINCINNATI – Colleges and universities won't be able to handle rape charges according to their own set of rules -- usually separate from the state and federal criminal justice system -- if backers of a proposed federal law have their way.

The Safe Campus Act, now up for consideration by the U.S. House of Representatives, would take the investigation and prosecution of college campus rapes and sexual assault charges out of the hands of university officials and place them in the hands of prosecutors.

While many national Greek organizations initially supported the bill, many sororities, like Gamma Phi Beta, withdrew their support in November over concerns that it would not provide enough support for victims.

Discussion around the act is politically charged, pitting the rights of sexual assault victims who may feel safer going through university channels against the rights of defendants who fear that their rights to a fair trial are being circumvented by university procedures.

Xavier University's Title IX Coordinator, for example, said she does not think the Safe Campus Act will benefit colleges.

"Our lens is the importance and value of equal access for all genders and being able to have a response system in place for gender discrimination," said Kate Lawson, Title IX Coordinator at Xavier University. "I think the Safe Campus Act would significantly affect the ability for universities to have an effective system in place."

However, Mike Allen, a criminal defense attorney and former Hamilton County prosecutor, sees if far differently.

"(The current university system) offends me as a lawyer, it offends me as a citizen," he said. "We have a presumption of innocence in this country, and in these hearings that presumption is just stood on its head."

The Case For a University System

Federal law known as Title IX directs colleges and universities to protect the rights of all students to an equal education. Title IX is commonly associated with athletics, but it also directs institutions to stand up for equal access by taking action to prevent sexual assault but to also thoroughly investigate any sexual assault charges.

College officials have some discretion about how to deal with charges of sexual assault. But typically, they convene a panel of students and administrators to consider evidence and hear the testimony of alleged victims and defendants. The panel may find the defendant guilty based on a different standard of guilt than in the U.S. criminal court system, according to guidance from federal officials. 

The defendant is guilty if the panel decides there is a "preponderance" of evidence – more than 50 percent likely in the panels' view – of guilt. Juries in criminal courts must find guilt beyond a reasonable doubt to convict a defendant.

Students found guilty of a sexual crime can be suspended or expelled. The case may or may not be referred to county prosecutors to pursue criminal charges as well.

The system works, Lawson said.

"I firmly believe that schools can and do protect the rights of both parties," she said. "That's what we do at Xavier, and I think that's what Title IX coordinators do all around the country."

A student who has been raped is in jeopardy of suffering a raft of short-term and long-term consequences, Lawson said. She and other XU staff work to stabilize the life of anyone who reports a sex crime. For example, they can initiate a "no-contact" notice with the defendant and move the alleged victim to a different residence.

"It's a rough road. Many will drop out or fall behind in classes," Lawson said.

Once XU staff has worked with the student to feel safe and back in control of their college life, the student actually may be more likely to file a criminal complaint with Hamilton County prosecutors, she said.

Without that system in place, Lawson warned, fewer rape victims will feel safe and secure enough to pursue justice.

"I'm out in front of students every day, so they have rapport with me. Having to report sexual assault and then to have to talk about it with a stranger can be very difficult," she said.

Officials at Miami University echoed Lawson.

"While (campus) resources are available regardless of whether or not a police report is made, the (Safe Campus Act) requires victims to report to police. That would reduce the likelihood that they will report at all," said Jayne Brownwell, vice president for student affairs at Miami.

Brownwell said the support for alleged victims does not come at the expense of the accused at Miami.

"We are committed to fair treatment to both the complainant and the accused," she said. "For instance, both the complainant and the accused have the same rights under our disciplinary process, including the opportunity to be assisted by an adviser or lawyer and the right to appeal a finding."

University of Cincinnati Title IX Coordinator Jill Shaffer wants victims of sex crimes to have as many options as possible to get help and pursue justice.

"I think the Safe Campus Act as a whole does not help us move forward with the goal," she said.

The Case for the Criminal Justice System

Mike Allen does not hide his contempt for a university investigation and hearing system that he said is grossly unfair to people accused of sexual assault.

"There is just a glaring lack of due process of law in these hearings, and I've represented defendants at various universities," he said.

Allen cited a case where his client, a male accused of sexual assault, was not allowed to face his accuser.

"They put us in a larger office room and put up a wooden partition, like a curtain, between my client and I and the accuser," he said. "We have a pretty fundamental right in our country to confront our accusers."

Allen said he's worked cases involving UC where he was unable to directly ask accusers questions. Instead, questions had to be submitted in writing to the panel chair, who decides whether to ask them on behalf of Allen -- the defense's counsel -- or to throw them out.

On another occasion, Allen said he brought a thick binder full of evidence gathered by university police to a hearing that the moderators of the panel would not allow to be considered.

"I'll never forget," Allen said. "One of the moderators literally said, 'It's not relevant.'"

Asked about the prospect of fewer victims coming forward if they had to go to the police, Allen said, "I'm not unsympathetic to that point of view, and perhaps it will be the case."

But he argued the criminal justice system is still the fair route.

"I've spent 30 years as a cop and a prosecutor, and I understand that it is difficult to come forward with charges," he said. "But if you point the finger and say that he raped you, you better darn well be ready to follow through and let the appropriate professionals investigate it. It's a serious charge."

Prevention Training Needed Regardless

Shaffer said UC and schools throughout the country work hard to educate students, starting on their first day on campus, about the dangers of date rape and other sex crimes.

All UC police officers go through at least five hours of training to deal professionally and sympathetically with sexual assault cases, she said. Many officers are also receiving additional training to increase awareness of issues confronting students who identify as lesbian, gay, bisexual, transgender or queer.

"I think as institutions we're always looking for clear guidance and best practices information," she said, "to get a better feel for what's working."

Shaffer said UC would provide even more training and provide more expert assistance to prevent and deal with sexual assaults -- but that would only be possible with more federal funding.

Lawson said Xavier also would welcome federal guidance that streamlines and clarifies best practices for university systems, and she is encouraged by increased awareness among students.

"I can talk to I'm blue in the face – and I do – but the truth is that this generation of students is the most savvy around Title IX rules than any previous generation," Lawson said. "It's all about bystander engagement, safe ways to interrupt harassment. One of our great hopes is that we leverage student leadership and knowledge (to reduce sexual violence)."

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