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The Biggest Threat to Justice in America Today - College Sexual Assault Investigations

Guard your sons. They are being persecuted. They are being wronged. They are being steamrolled. And something needs to be done.

I am talking about sexual assault investigations, or lack of investigations following reports of sexual assault on college campuses across the United States.

In response to allegations of sexual assault being swept under the rug, or at least insufficiently investigated, on college campuses, serious policy was written. About a decade ago a push was made to pass law that would require aggressive investigation of sexual assault by colleges. Then, the federal government decided that Title IX of the Civil Rights Act of 1973, cover the situations. The department of Civil Rights said that if a college didn’t investigate every report of sexual assault on campus they were not provided an equal opportunity for education. Seems simple enough.

Let me be clear, Sexual Assault should be investigated, and it should be punished - severely. I have seen the college sexual assault system at its worst, from the perspective of the accused and that is the perspective I write from. But it also sucks (and that is the only word I can think of) in the case of an actual sexual assault. If there is a sexual assault the victim is forced to retell the story to campus safety, their doctor, the title IX coordinator, the police, the DA, the hearing panel, the grand jury, at the very least. Talk about re-victimization. Then, they are forced to litigate their case against the respondent themselves, without much guidance, or training. Then, they go to trial, and the defense attorney is fully prepared. The current system helps nobody.

The problem is that colleges have been threatened so significantly that they get a pass if they are too harsh, but they risk great punishment (prosecution by the US Department of Justice or loss of federal funding) if they are too lenient.

The root problem is that colleges can’t really do a fair investigation. They don't have the training and experience to do it.  It's dang hard.  Police officers in Rochester that investitigate sexual assault cases typicall have 5 to 10 years as a patrol officer, then become and investigator for another five or so years, then start investigating serious sexual assaults. The most senior police investigators will tell you that sexual assault cases can be some of the most complex investigations they have seen. To ask a lawyer or college employee (other than a retired police investigator) to properly investigate a sexual assault is impossible. Further, colleges don’t know how to adjudicate reported sexual assaults in a fair manner. Also hard. In response to the requirements of the federal government’s requirements on sexual assault investigations most colleges hired a law firm to write them a sexual assault policy. The policy is usually about 45 pages – about triple the size of the United States Constitution with 27 Amendments.

Forced to Defend Yourself

Most college employees have seen at most a handful of real sexual assault investigations (thank god) and have no idea how to understand, much less execute, their own policy. But worst of all, the one thing that is unforgivable, is that virtually every colleges requires 18 to 25 year old men to be their own lawyer.

Again, let me be clear. These are real cases. The stakes are virtually life or death. You can graduate with a college degree, fast track it to a successful life – or get expelled. Then what? This is a rape trial, with a “judge” that is probably a well-intentioned faculty member that took an online course that was a couple hours long, while they sipped their caramel macchiato from Starbucks.

You probably think I am joking. You think I am exaggerating. I wish is was.

Real Cases - Supposed “Sexual Assault”

Let me tell you about a few of the cases I have handled.

  • Man charged with having non-consensual sex bordering on force.

Upon further investigation: they had been having consensual sex for weeks, in secret, because she had a significant other. She later admitted that it was in fact consensual sex that became uncomfortable because it lasted too long, she said to stop, and he virtually froze in place. She told the story to another woman, who reported it to the police.

  • Woman claims lack of consent the first week of her freshman year, nearly four years later

Upon further investigation: neutral witnesses say that the pair returned to her dorm room and were flirting, talking and acting so sexual that they felt compelled to leave the room. Upon returning and hour later her roommate said the complainant opened the door virtually naked and said she needed more time.

text messages, emails, class records, Facebook messages, snap chats etc. showed that the two regularly visited each other’s dorm rooms for nearly a year following the night in question. They intentionally signed up for the same classes, walked a wooded trail to class together early in the morning and studied together regularly. They regularly communicated about music, entertainment mutual friends, and… sex. She later tried to hook him up with her best friend from high school (documented in Facebook messages)

  • Woman claims lack of ability to consent due to intoxication

Upon further investigation: Woman admits that she had consensual sex with another member of the fraternity that our client was unaware of 30-60 minutes prior to this incident. She admits that she took off her own clothes, got on top, inserted his penis into her vagina, took his phone navigated it for various purposes, agreed to have him walk her home, walked at least half a mile across campus together without incident, hugged him as she got off the elevator. And spent the evening chatting with her girlfriends.

These are just a few. There are a lot more. We virtually proved these young men innocent. Thankfully they were all exonerated. That is because we spent virtually hundreds of hours piecing the evidence together, planning, investigating, studying, and doing everything that we do in a criminal rape trial where the defendant faces 25 years in jail. We spend thousands of dollars on private investigators, we hire experts in computer forensics, toxicologists, pathologists and forensics. Most of the time the cases are so complex that I team up with a great lawyer (Kitty Karle – kittykarle.com) because two minds are required. There is no young man that knows how appropriately defend themselves. They don’t know how to find evidence, or hire experts. They don’t even know how to speak to in public, much less defend themselves.

I will say that some of my proudest moments in my career and really in my entire life, have been defending young men that I knew were wrongfully accused of sexual assault on college campuses. I would be much more proud if I could find a way to make the system fairer.