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Why colleges can punish sexual assault better than the courts

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U of M football
A recent case involving University of Minnesota football players illustrated how colleges and universities can be better equipped to punish sexual violence on campus than the justice system. Here, the team announces a now-rescinded boycott of football after 10 players were suspended.
Jeff Wheeler | Star Tribune via AP file

When a college student is sexually assaulted, the student's most likely shot at justice is often through the school's administrative process.

That's because the burden of proof for punishing perpetrators of sexual violence is significantly different in schools' internal processes than in the courts. 

When the University of Minnesota suspended 10 football players after investigating alleged sexual assaults that a prosecutor declined to charge, it illustrated how schools' investigatory and disciplinary practices can sanction perpetrators more readily than police and courts. 

All colleges and universities that receive federal funding — federal loans, research grants from federal agencies, and so on — are required by Title IX — a federal anti-discrimination law — to follow a similar process when they receive reports of sexual violence. 

Under federal guidelines for Title IX, the burden of proof needed to punish sexual violence is is a "preponderance of the evidence."

In criminal cases, the standard is proof "beyond a reasonable doubt."

Schools also investigate cases based on the school code of conduct, which might have different definitions of sexual consent or sexual misconduct than criminal law.

When a woman said she had been sexually assaulted by several Gopher football players this fall, police investigated and handed their findings over to the Hennepin County Attorney's Office, but prosecutors declined to bring criminal charges, based on the results of the investigation. 

Kevin Randolph, a longtime sexual assault investigator at the university, said he knew there wasn't much of a shot at criminal prosecution for the men allegedly involved.

"It did strike me that it was going to be a very difficult — if not impossible — case to get through criminally, based on the evidence," said Randolph, who's now a lieutenant with the Crosby, Minn., Police Department. 

Finding evidence beyond a reasonable doubt in criminal cases means jurors are about 99 percent sure a crime was committed, Randolph said. 

When guilt comes with a preponderance of evidence, as in Title IX cases, those weighing a report just need to find that one side is more credible, he said.

"If one side is more believable than the other, then that's [how] the ruling goes," Randolph said. "It's basically just a tipping of the scales."

At the University of Minnesota, sexual assault reports go to the school's Office of Equal Opportunity and Affirmative Action. 

Think of the EOAA staff as detectives, Randolph said, with the Office for Student Conduct and Academic Integrity as the court. All schools that receive public money need to have similar systems in place to comply with Title IX. Private schools' methods vary, and have been subject to scrutiny. 

Randolph described the Title IX rules as a "double-edged sword": The police and offices like EOAA can wind up inadvertently working against each other in a case's investigatory stage if a victim reports to both entities. 

Offices like the EOAA have 60 days to investigate sexual assault reports, which means campus investigators sometimes move more quickly than police. 

Randolph said the most common defense of a sexual assault suspect is to say the act was consensual, so officers need to "knock them off their story."

But if campus officials have already interviewed an alleged perpetrator, Randolph said it can be tough for police to shake them, as they've had practice with investigatory questions. 

Police can also hit roadblocks that campus investigators don't when interviewing witnesses to an alleged sexual assault. 

Most witnesses exercise their Miranda rights when dealing with police, Randolph said, but campus officials can often compel them to talk for a school investigation by threatening sanctions if they don't.

In the case involving the University of Minnesota football players, an 80-page investigation report compiled by campus officials gave cause for the suspension. Though it dismissed charges in the case earlier, the Hennepin County Attorney's office said Tuesday it will give the case a second look — and it will review the EOAA report. 

While Title IX can make it easier to punish an alleged perpetrator, the punishments are different than those that come out of the criminal process.

In the current case, for example, some of the suspended football players face possible expulsion. But in the courts, sexual assault can carry steep fines and prison time. 

When police have sexual assault cases on campus in which they're fairly certain someone is guilty but can't build a sufficient case, Randolph said, Title IX rules can be helpful.

"At least these guys are getting some punishment out of it," he said.

All Things Considered host Tom Crann and MPR News reporter Peter Cox contributed to this story.