To prosecute sexual assault, go off campus

Almost three dozen American universities, including Los Angeles–area Occidental College, where Barack Obama studied as an undergrad, are currently under investigation by the federal government for underreporting rape cases and possibly violating students’ civil rights. Some of these schools face hundreds of thousands of dollars in possible fines and untold millions in civil suits from victims who argue that their accusations of rape were not taken seriously.

It’s become abundantly clear, through this cascade of investigations and revelations of the last few years, that the more school officials get involved in rape cases, the greater the chance that accusations will be downplayed, shuffled around the campus bureaucracy and, when possible, just shelved.

President Obama was inarguably on target, then, when he recently denounced as “totally unacceptable” the tsunami of college rape allegations. Last month he tasked a special White House team to come up with proposed reforms within 90 days.

Despite the president’s good intentions, however, focusing on reforming campus procedures for addressing sexual assault cases is misguided. The best way for universities to reform their policies for investigating allegations is to butt out.

Even with the best intentions, colleges just aren’t equipped to do these kinds of allegations justice. Rape is a serious crime that can crush a victim’s life and mean decades of prison time for the rapist; accusations of sexual violence must be taken every bit as seriously as other crimes. You wouldn’t expect a mere campus panel investigation into an alleged school-related murder; homicide detectives would be brought in immediately. And yet, at the University of Southern California (USC), the panel that investigates sexual assault claims is the Student Affairs Judiciary Committee, whose primary mission is to resolve issues such as plagiarism and cheating on tests. What training these administrators have in forensic interviews, evidence collection, suspect interrogation and the penal code on sex crimes is unknown.

Nor do universities have any business arbitrating felonies to begin with. No matter how enlightened or progressively tilted a university administration may be, the investigative panels that most often deal with rape cases are made up of university employees who may have an innate interest in muting the claims altogether. “These universities, they're big, multibillion-dollar corporations," Stanford Law professor Michele Dauber told the San Jose Mercury News after the newspaper's investigation revealed that just one out of 32 reported cases of sexual misconduct at the University of California, Berkeley, was reported to the police. "They don't want to do anything that rocks the boat, and talking about rape is scary."

There is no doubt that the criminal justice system moves slowly, and that one of the perceived advantages victims see in reporting sexual assault to their universities is that the process could move faster, with more discretion. Indeed, the prospect of testifying in open court about sexual abuse can be enough to dissuade a victim from pursing a case altogether. However, universities’ clumsy, slow-moving, overly cautious investigation methods can leave a student feeling even more exposed.

In one case at USC, a female student reported sexual misconduct by a male classmate. The two were enrolled in a very small film-writing program. The panel that investigated her claim interviewed a sizable chunk of students also enrolled in the program, several of whom were not present on the night of the alleged assault. While these students had no direct evidence to provide, they were interviewed as "character witnesses" by the panel and asked to describe the dynamic between the alleged victim and her assailant. The point of this, the female victim would learn, was to see if her claim was rooted in a romantic squabble. The panel also instructed the victim not to talk about the incident with any of her friends in the tight-knit program. 

When I interviewed the female student in 2013, she said that her reasoning for going to the university rather than the police was that she felt safer. Now she feels humiliated: After months of "investigation" by the USC Student Affairs Judiciary Committee, her claim was dismissed as a he-said-she-said matter. She is currently suing USC for its handling of the situation.

Then there’s the sad case of University of Missouri student Sasha Menu Courey. On Jan. 24, ESPN’s "Outside the Lines" came out with the results of a 16-month investigation into allegations by Courey, who told school health officials and possibly an administrator in 2010 that she had been raped earlier in the year, possibly by one or more football players. The school didn’t act, citing personal privacy. Courey descended into a deep depression and committed suicide the next year. Though the university stands by its actions, it did finally turn the case over to police investigators two days after the ESPN story broke, claiming it had new names and information in the case. Quite a coincidence in timing. 

With some students struggling to afford $50,000-per-year tuition at elite schools, and others wondering if the cost is worth it, universities are desperate to burnish their image as secure places to allay doubts and keep enrollment as robust as possible. Some of these schools are massive and fabulously rich institutions that have powerful interests at stake in maintaining their safe, friendly image. And often, colleges are what keep entire communities afloat. One of the schools under investigation by the feds, for example, is USC, which is the largest private employer in the city of Los Angeles. Its reticence is, economically speaking, predictable.

But it doesn’t do much for the victims, the accused or even their classmates — not to mention a school’s reputation — when an institution that’s clearly unprepared to deal with serious felonies insists on handling rape cases in-house.

So what should universities do? Any new national guidelines coming from Washington, or from the schools themselves, should follow the example set by Sen. Kirsten Gillibrand, D-N.Y., a champion of reform of sexual-assault cases in the military, who has insisted that the command chain be taken out of the adjudication process rather than becoming more deeply enmeshed in existing systems. The same conflict of interest that military officers might face when disciplining their colleagues also exists in the vested interest that modern American universities have in dealing with, or ignoring, campus rape.

This means that if colleges want to prove they take sexual assault seriously, they should have a detective from the local sex-crimes unit address incoming students at orientation. A detective or a deputy district attorney who specializes in sex crimes should explain the penal code’s definition of consent and sexual battery, and outline their methods of evidence collection, as well as sharing statistics of campus sex crimes they have successfully prosecuted in the past. A detective or DA describing real legal jeopardy would likely make more of an impression on incoming students than a university administrator or dorm counselor.

That isn’t to say that universities should stop offering counseling and confidential medical exams, nor shy away from fostering a spirit of safety, respect and consent among students. But legal immunity shouldn’t be offered to campus administrators or non-health personnel if they have knowledge of a possible felony. Rather than telling a student that a university panel will conduct an investigation, they should immediately refer the student to law enforcement. There can be volunteer escorts who go to law enforcement with the student victim; the victim can be exempt from attending classes for a period of time — whatever support the student needs to report the crime, the university should offer.

What university officials should not do is supplant a criminal investigation. If schools insist on conducting their own sort of investigations, they should be free to do so, but only after the criminal justice system has done its work. Without external oversight and the power of the law, for the victims, the procedures seem like little more than window dressing.