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Proposed legislation to force New York universities to report rapes to law enforcement

Posted By Galluzzo & Arnone LLP || 13-Dec-2013

New York Assmeblyman Edward Braunstein, who has previously proposed legislation to combat and criminalize the growing phenomenon of revenge porn, has proposed a new bill relating to the investigation and prosecution of sex crimes. Specifically, he has proposed legislation requiring universities to report rape allegations to local law enforcement. Although this proposal has some appeal, we think that it is important to consider its potential negative side effects.

Without question, far too many allegations of campus-based sexual assault never go anywhere. For one reason, universities and university police officers typically lack the necessary expertise, training or resources to handle these sorts of investigations as ably or professionally as local city/state police or prosecutors. More importantly, perhaps, is the fact that universities are in many ways incentivized to make these cases go away. After all, no university wants to develop a public reputation as a place where rapes happen, and some administrators might even fear that the university could be liable for failing to provide adequate security in some cases (God forbid that a star athlete or child of a wealthy alumnus be accused of such a crime). Accordingly, one should not be surprised to hear tales from some victims of university officials subtly and sometimes not-so-subtly discouraging the victims from pursuing their complaints against fellow students.

Recently, it was suggested by some (not us) that Columbia University bungled (or perhaps intentionally ignored) the investigation of a student-athlete that had had several complaints made against him for sexual assault or misconduct. This proposed bill appears to be in response to that media flap. But would making universities mandatory reporters really help decrease the problem of sexual assault on New York college campuses?

Students at college campuses that get sexually assaulted by other students often tend to report the assaults to school administrators rather than the police. Obviously, even college students know that rape is a crime, and that police officers investigate and make arrests for rapes. So, it seems that students that elect to go this route have done so for one of two reasons: 1) they want the school administrators to assist them in reporting the event to the police, or 2) they are deliberating avoiding police involvement for one reason or another. Certainly, some rape victims do not want to report the crimes to police because they fear repercussions from their attackers, negative publicity in the media, having their parents find out, peer backlash or condemnation, or being questioned about their sexual histories, among other things. So, it would seem that if students with these concerns know that the university will not be able to keep their reports confidential and away from the police, that they will just simply choose not to report them to the universities (and thus, to no one at all).

On the other hand, of course, police and prosecutors should be investigating these claims because they are better equipped to do so and because they are the only ones with the power to realistically and ultimately hold rapists properly responsible for their actions. Moreover, university investigations and disciplinary hearings of sexual assault allegations tend to resemble criminal procedures, but without the satisfying conclusions for the victims. After all, the most a university can do to punish an abuser (without reporting the case to the police) is to expel a student. This is a far cry from the punishment potentially facing a rapist in criminal court (incarceration, felony convictions, sex offender registration, etc.). More than a few victims have thought that their reports to the university administration would result in quiet, swift resolutions and sufficient punishment for their attackers, but then are disappointed to learn that their attackers can insist on disciplinary hearings in which their friends are oftentimes called to testify. Aside from the embarrassment and peer backlash that can often ensue, victims are often disappointed to see their attackers receive minor punishments like reprimands or temporary suspensions as a result of school disciplinary procedures. Then, after the school disciplinary procedure is complete, victims often feel like subsequent reports to the police would be pointless or hopeless, and prosecutors might be skeptical of reports that happen so long after the fact. So, it may be that notifying police of campus rape allegations (which will almost always at least trigger a police investigation) is ultimately more often than not in the best interests of the victims – though the victims may not want to go that route – in that the “criminal procedures” in criminal court and university settings are often comparably intimidating for victims but the punishments meted out in criminal court are far more likely to achieve results that help victims heal.

Ideally, university administrators would have intelligent conversations with victims that report sex crimes about their options in the legal system, and would also encourage them to report their assaults to the police without forcing them to do so. Certainly, high schools administrators are required to report instances of child abuse to the police or child services agencies, but college students are technically adults (though perhaps shouldn’t be treated as such regarding an issue so intimidating and complicated) and it would arguably be a violation of their privacy and dignity to report their cases to the police when they thought they were reporting it in confidence.

If you or a loved one have been wrongfully accused of a campus sexual assault or have been a victim of a sexual assault, you should strongly consider contacting an experienced former sex crimes prosecutor immediately.

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