Can we get a criminal conviction for a campus rape if we don’t have video?

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Wednesday, February 11, 2015

The White House Task Force to Protect Students from Sexual Assault releases its model memorandum of understanding for colleges and law enforcement.

Good news: Last week the White House Task Force to Protect Students from Sexual Assault issued its long-awaited model memorandum of understanding (“MOU”) on how universities and colleges should work together to handle campus sexual assault. Its recommendations are especially noteworthy in light of two well-publicized recent campus rape cases at Vanderbilt University and Stanford University.

According to Time Magazine, “[t]he Vanderbilt Rape Case Will Change the Way Victims Feel About the Courts” because “[t]he decision sends the message that the criminal justice system does work for rape cases. . . . In theory, our courts are the best way to ensure that rapists are removed from our streets, and the Vanderbilt case—along with the recent arrest of a Stanford University swimmer who allegedly raped an unconscious woman on campus grounds— suggests that in practice that may finally be the case.”

We wish Time were correct and that these cases mark a turning point for rape victims. But unfortunately they don’t. The Stanford and Vanderbilt cases are incredibly unusual because one has third-party eyewitnesses (Stanford) and the other was caught on video (Vanderbilt).  The Stanford case has not yet gone to trial, so we don’t know yet what the courts will do with it. It began when two male graduate students noticed a man having sex someone who was “completely unresponsive,” outdoors, on the Stanford campus, behind a dumpster.  They tackled the assailant and called the police.

In the Vanderbilt case, campus dorm security cameras recorded the attackers carrying the victim’s body out of a car and dragging the unconscious woman through the dorm while laughing and taking photos and videos of her naked body.  Some of the men who raped the victim took photos and video of the rape itself.  One of the jurors said, “as soon as we saw the videos and photographic evidence . . . we knew exactly who was guilty of what and what we were going to come back with.”  

But most rapists are not stupid enough to (1) commit the rape in public, or (2) video themselves committing a crime, or (3) send the video of the rape to their friends.  

Fortunately, the policies in the White House Task Force model MOU really do have a chance of improving the criminal justice system’s response to sexual violence on campus. The model MOU is called “Building Partnerships among Law Enforcement Agencies, Colleges and Universities:  Developing a Memorandum of Understanding to Prevent and Respond Effectively to Sexual Assaults at Colleges and Universities.” It sets best practices for colleges and local law enforcement to work collaboratively to improve criminal investigation of sexual violence. For example, the model MOU recommends that schools and police forces should preserve evidence related to sexual violence regardless of who received it first, and that anyone at a school or police department who might have to conduct a sexual assault investigation receive specialized, trauma-informed training in responding to sexual violence.

But one of the best things the model MOU does is recommend that schools and police departments promise to each other—and to victims—that anyone who responds to a victim “will not make statements or act in any manner that directly or indirectly discourages the victim from pursuing criminal charges . . ., such as by stating that it is likely that the prosecutor would not seek an indictment or that a jury would not convict.” This policy takes into account studies that show that victims don’t report rape to the police because they’re afraid they won’t be believed, and because they’re afraid they will be treated badly by police, lawyers, and other parts of the criminal justice system.

It’s incredible that the White House Task Force has to remind schools and police not to tell victims no one will believe them, but thank goodness it has. Who knows?  If the report works, maybe prosecutors will get criminal convictions for rapes at school even without any videos!