THE BLOG

Colleges vs. Military: Who's Worse at Prosecuting Sexual Assaults?

04/08/2014 11:51 am ET | Updated Jun 08, 2014

Answer: Colleges do a worse job.

Colleges and the military both suffer from a sexual assault epidemic compounded by flawed judicial systems. But the military judicial system is at least run by professionals. The college judicial system is run by rank amateurs.

Let's start with the similarities.

Criticism over two recent military cases -- the prosecutions of Brigadier General Jeffery A. Sinclair and Naval Academy midshipman Joshua Tate -- focuses on the control wielded over sexual assault investigations and prosecutions by commanding officers. Senator Kirsten E. Gillibrand (D-NY), who unsuccessfully introduced legislation seeking to remove such discretion from the commanders, compared the military system to being "like your brother committing the sexual assault and having your father decide whether to prosecute."

Senator Gillibrand's parental analogy applies even more strongly to college judicial systems because the schools specifically act in loco parentis for their students. Like the military system, the colleges and universities grant ultimate authority over sexual assault cases to their "commanding officers" -- typically a dean of students and/or provost-level administrator who acts with delegated authority for the President of the College and Board of Trustees.

The problem with this practice is that neither colleges nor military want their sexual assault problems publicized. Former President Jimmy Carter highlighted this conflict of interest as it applies to colleges when he told the Huffington Post that a major contributing factor to campus sexual assaults is that university administrators "don't want to bring discredit or criticism to universities to have an increase in reported abuses."

This inherent conflict of interest motivates both colleges and military to underreport sexual assaults and avoid the transparency of prosecutions brought in the criminal justice system. This motivation is served by the creation of stand-alone judicial systems separate from the criminal justice system that serve to shield military and college sexual assault cases from public scrutiny. But while the motivation is identical, the professionalism of the two systems diverges drastically.

The military system employs its Judge Advocate General corps to administer its criminal justice system. These are lawyers trained as professional prosecutors, defense counsel and judges who do the difficult job of criminal justice day in and day out. Sexual assault trials are complex and may take days or even weeks to complete. Military prosecutors and defense counsel, like their counterparts in the civilian world, may take months to complete their investigations. A defendant in a military trial may also choose to hire a non-military lawyer at their own expense to conduct their defense.

In contrast, the colleges and universities systems employ volunteer students, faculty and administrators given unspecified "training" in sexual assault cases. Little, if any, investigation is done by the college beyond interviewing the victim. Student advocates available to advise an accused student possess no investigative training and, in any event, lack the time and resources to conduct a competent investigation. Trials may take place in a single session, often on a weekend day, to accommodate student and faculty schedules. Most schools prohibit the presence of lawyers at these proceedings or forbid a lawyer in attendance from speaking or participating in the hearing. The rules of evidence do not apply and DNA evidence or other forensic evidence is rarely utilized.

Sexual assaults are among the most difficult and complex cases in the criminal justice system. Allowing untrained amateurs to work on these cases is demeaning to victims and unfair to those accused. Colleges should be required to report all sexual assaults to law enforcement and make the statistics of such reports fully transparent and public.

Then they should get out of the way and let professionals do the job.