Looking at College Adjudication of Rape
By: Alparslan Zora
Student Writer for The Journal of Gender, Race & Justice, Volume 18

In his November 15, 2014 opinion piece in the New York Times, “Mishandling Rape,” Jed Rubenfeld, Professor of Law at Yale Law School, argues that the current policies and procedures of college campuses addressing rape are unsatisfactory.  Rape is a major issue on college campuses. A Department of Justice study from 2007, that Rubenfeld cites, found that about one in ten undergraduate women had been raped in college.  However, only about five percent of college women who are raped reported the assault to the police. As Rubenfeld points out, some reasons why so many college women who are raped do not seek the assistance of the criminal justice system and the police include lack of confidentiality, fear of being accused of lying, and low conviction rates. Thus, colleges and universities, instead of the courts, have become the key venue for adjudication.

However, adjudication by colleges hasn’t been a success story either. Typical sanctions that colleges can impose on those found guilty of sexual assault are limited to probation and expulsion. As Rubenfeld states, this results in many rapists at most suffering expulsion for their crimes. In addition to having weak penalties, college trials can suffer from weak evidentiary standards and inexperienced adjudicators. Ultimately, concerns regarding weak punishments and inaccuracy coupled with high rates of sexual assault among college women demonstrate that the current process provides neither sufficient retribution for the crime nor deterrence to the criminal.

But adjudication by colleges has its advantages too. Compared to the criminal justice system, colleges can meet victim’s needs of confidentiality and accommodation. Compared to long and costly trials, college trials and hearings can provide cheap and quick retribution, even if it is limited to probation or expulsion.  Additionally, given the current cost of college education and all the student debt that it entails, expulsion may not be that weak of a punishment after all.

The issue of college adjudication of rape brings up the classic question of how to balance a speedy trial with a just trial. Perhaps the current regime that offers the victim a choice between a fast process with a weak bite and a slow process with a strong bite is appropriate. Conversely, perhaps Rubenfeld’s solution of incorporating parts of the criminal justice system into the university process by having prosecutors and police participate in hearings and investigations appropriately balances the victim’s need to a fast trial with the accused’s need for due process.

Whatever balance society ends up settling on, one thing is clear. College adjudication of rape is a response to the insufficiencies of the criminal justice system, and any procedural burdens placed on the college process must keep the victim’s needs in mind.