No Penetration Without Representation

Sexual assault allegations are prevalent on college campuses. Not that long ago the entire Greek System at the University of Virginia was toppled by a false sexual assault allegation which allegedly occurred at a fraternity house. Rolling Stone magazine created a story out of the false information which ultimately ended fraternities at the University of Virginia. Once the real investigation by law enforcement started, it became clear that the allegations and entire story was fabricated.

Even though we live in a country that requires a jury to presume a criminal defendant innocent, there is no presumption of innocence outside of the courtroom. In sexual assault cases involving athletes, fraternities and people of notoriety, the allegations spread much quicker than the facts. People presume guilt. The media convicts the individual even before an arrest and we move on to the next story without waiting for the true facts of the investigation to come to light.

Sadly, by the time the evidence comes to light, the individual charged is already deemed to be guilty by most of the community and has likely faced non-judicial punishment such as being kicked out of school pursuant to Title IX, loss of job, or loss of a scholarship.

This week in Lincoln, Nebraska the media published a story that University of Nebraska quarterback Tommy Armstrong and wide receiver Jordan Westerkamp’s house was part of a rape investigation. While little information has been provided about the facts of the case, this is certainly a black eye for the Husker football team. Long before the criminal case is tried, the University of Nebraska will have a Title IX hearing wherein the University will decide whether the individuals alleged to have committed the rape may stay at the school.

Title IX hearings at college campuses provide very little due process, if any. At the University of Nebraska the accused is not given the opportunity to review the alleged victim’s statement prior to responding. Rather the hearing is conducted in a manner in which evidence is summarized and read to the defendant but allows the defendant no opportunity to cross examine the victim or to challenge the specific statements of the accuser. The accused does have the right to present his own evidence, but without examining the case against him, such opportunity is hollow.

The real tragedy is that someone who may never be arrested for a crime of sexual assault could still be kicked out of college, lose a scholarship, or lose a career without ever being given the opportunity to legitimately challenge a false accusation.

Fortunately, the United States Constitution protects the rights of the accused, even accused rapists. A defendant will have the right to a fair trial, a right to see the alleged victim’s statement, and the right to cross examine the alleged victim.

Sexual assault cases are unique in that corroboration is not necessary to prove the case. While all criminal cases must be proven beyond a reasonable doubt, most individuals are not arrested for crimes without corroboration.

Consider the following: You tell police that your neighbor Bob handed you a bag of cocaine at your house. You call the police and tell them about the cocaine and Bob denies any involvement. Without any witnesses or evidence to corroborate the allegation, there is no probable cause to arrest Bob. Essentially when it is your word against Bob’s. There is no probable cause to establish a crime occurred and, in most cases, law enforcement will not arrest and prosecutors will not file charges.

Rape cases are much different. A person accused of rape may be convicted without corroboration.

There are varying types of sexual assault charges. The most common are first and third degree sexual assault. First degree sexual assault requires penetration while third degree sexual assault only requires sexual contact. In first degree sexual assault cases, the government doesn’t necessarily have to prove intent, only that the accused knew or should have known that the victim was unable to appraise the nature of her actions or that the sexual assault was a forced rape. In third degree sexual assault cases, the government must prove beyond a reasonable doubt that the touching of the intimate part was for sexual purposes.

The lack of specific intent in first degree sexual assault cases gives the prosecution somewhat of an advantage. Unfortunately it is common for college students to consume too much alcohol, to have sex, and to regret it. With the proliferation of social media, people often broadcast events when they are drunk that they regret when they are sober.

Sex on college campuses is dangerous. Any time alcohol or drugs and sex are mixed, people’s recollections of the event and judgment can be affected.

Usually a person does not know he has been accused of sexual assault until he has been contacted by law enforcement. The investigation usually begins with the victim or the victim’s friend or family member going to law enforcement and law enforcement interviewing potential witnesses. Often the accused is the last person interviewed/interrogated. Unfortunately all too often the accused does not realize he is being interrogated until it is too late. The law enforcement officer who is conducting the sexual assault investigation does not believe that the accused is going to admit to raping someone, but rather admit enough facts to corroborate the alleged victim’s story. Even if the accused states that the sex was consensual, he may have unsuspectingly provided enough evidence to be arrested. For these reasons, a person who is being investigated for sexual assault should contact a criminal defense attorney immediately.

In the lawyer’s world, there would be no penetration without representation. There would be agreements regarding consent, birth control, and acceptance of risk. However, in a real world it doesn’t work that way. Things happen and people make decisions. We all hope to make good decisions, but people occasionally make poor decisions especially when drugs and alcohol are involved.

If you or a loved one has been charged with sexual assault, contact Berry Law.

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