<p>This is why I think we should be reconsidering the criminality of sexual assault. Rape is a horrible, horrible thing to happen to anyone, and I personally believe it should be fully prosecuted. But we need to decide what is ultimately more important to us: the mental/emotional wellbeing of the victim, or justice for the society. (I’m going to be using sexual assault and rape pretty much interchangeably here. Also I’m assuming an ideal world, where law enforcement does its job and policy changes matter.)</p>
<p>As it’s currently defined, rape is a felony, a crime against the state. While the victim may or may not file a civil suit against the perpetrator, the criminal justice system can still press charges and administer punishments, and the victim has a moral (if not legal) obligation to aid the prosecution (through testimony, for instance). In that light it is logical to demand that we temporarily put aside the immediate needs of the victim: society as a whole should not be denied justice because of one individual. In that light it is logical to demand proof beyond a reasonable doubt, because of the heavy penalties for the guilty: we must take pains to ensure that we are not condemning the innocent. So we would rightfully assert that adjudication belongs in the hands of the legal system and not of a college’s administration. This is pretty much standard for most felonies: most, if not all of us here would be appalled if a college decided to handle a murder or armed robbery case in-house without reporting it to the police and aiding the subsequent investigation. But we’re comfortable with colleges doing just that in the case of sexual assault. Why?</p>
<p>Because sexual assault is an intensely personal thing; the only crime more personal than that is murder/manslaughter, and in some ways rape is even worse for the victim. A murder investigation can proceed without care for retraumatizing the victim; not to belittle the plight of the murdered, but, well, they’re <em>dead</em>, and without proof of an after-life we can safely assume that they are not suffering any ill effects from being put through a reconstruction of events. But rape victims can and do suffer those effects from what is essentially standard due process, and as a society we are beginning to empathize more and more with that (or we’re just beginning to show our empathy. Same effect) - so much so that a significantly large fraction of the population believes that it should be up to the victim whether or not to submit to said investigation in seeking justice. This is the essence of alternatives such as college tribunals: that criminal investigations hurt victims more than they help, if they help at all. According to this argument, what victims need and what we as society should place as utmost priority is space to heal, to move past the trauma, to be able to forget as much as possible. This is in odds with criminal justice, as outlined in the previous paragraph, where the potential pain in reliving an extremely negative experience is secondary to the potential gain in bringing the perpetrator to book.</p>
<p>Beyond this is the lack of clear motive in rape cases (well, apart from the obvious sexual gratification). As a society we (consciously or subconsciously) view rapists, like murderers, as monsters; bogeymen who belong behind bars preferably forever. But in the majority of cases the perpetrator is not a cold-blooded predator out to objectify and torture the victim: this is especially true on campus. Here the rapist may be so socially inept as to misread cues that would be obvious to more mature minds. Here the rapist may be a partner who is genuinely confused as to why that night was different from all others. Here the rapist may be equally intoxicated or otherwise impaired in judgment, equally blank concerning the details after the fact. Here consent or lack thereof is a thousand shades of grey. This does not excuse assault; however, it does make it clear why even the victim would be reluctant to, for lack of a better term, “make a big deal” out of things. In this circumstance we may reasonably feel that a restraining order, or suspension, or counseling, or even an apology is quite enough punishment for what could garner years of imprisonment in a law court. The underlying implication, unlike with criminal prosecution, is that the perpetrator is a better person than this, that all (s)he needs is, in essence, to own up and grow up: that the whole sordid affair is between two (or more) individuals, not the perpetrator and the blind justice of the state. This, right here, is the point of civil law.</p>
<p>So what’s the way forward? I don’t know what is, but I know what it’s not: slapping patches on a flawed system and hastily shoving in props will not bring long-term resolution. Our understanding and appreciation of sexuality as a whole has changed radically in the past five or six decades - perhaps it’s time we toss out our understanding of sexual crime. I can’t speak for the system as a whole, but as for colleges, I wouldn’t do away with tribunals entirely. Beyond justice, a victim also deserves our care and support: two things which an efficient criminal court cannot afford for fear of bias. But as long as rape remains a felony, then we need to treat it as one despite our emotional reactions. I would suggest a special officer(s), or maybe therapists with legal experience/training, to help the college decide where an incident can be resolved by the administration with fair closure for both parties without police intervention and where both the victim and society deserve a higher standard of justice. In the former case school-imposed sanctions are fine, and with the involvement of professionals perhaps fewer innocent people would be caught in the net of “preponderance of evidence”. In the latter case, call the police. Provide the support the victim needs, but let the law handle the investigation.</p>