Baylor Follow-Up: Remaking the Case for Mandatory Reporting

On Monday, we ran an article here on The Torch about how Baylor University seems to have dropped the ball on the campus sexual assault investigation into football player Sam Ukwuachu. FIRE argued that this case demonstrates how poorly equipped schools are to adjudicate serious crimes like rape, underscoring our position that not only should law enforcement and courts be involved in these cases, but schools should also be required to report sexual assault allegations to the local authorities.

This assertion garnered pushback.

The two key criticisms of FIRE’s position are that (1) mandatory reporting forces victims to involve police, sometimes against their will, and thus a mandatory reporting standard could mean victims will not report these crimes at all; and (2) mandatory reporting to police is not a good idea because the criminal justice system is flawed. We don’t believe either of these criticisms is persuasive.

First, mandatory reporting simply requires colleges and universities to notify police where a crime has been alleged. The alleged victim him- or herself is not required to report to the police and may choose whether to participate in or cooperate with a subsequent police investigation. The alleged victim makes the choice about how involved he or she wishes to be with the case. This is no different than what we as a society do for the reporting of any other violent crime, and for good reason—once a crime has been alleged, it is not only the accuser and the accused who have a stake in a fair and just outcome, but society at large. Violent crimes do not happen in a bubble, and if measures are not taken to investigate and punish them, those committing the crimes may well repeat their offenses. Allowing rapists to walk around freely isn’t just a risk for victims of the crime, but for all the potential victims of future crimes they might commit.

Second, the American criminal justice system is obviously imperfect (as are all justice systems), but it’s the best one we have available. It is a system designed over more than 200 years, and it includes huge numbers of measures put in place for the sole purpose of fairly adjudicating crimes. Police, courts, and public oversight (through juries, elections, confirmation hearings, etc.) are anchored in the protections of the U.S. Constitution and common law. In comparison, even the most sophisticated campus justice system falls far short, and in the worst cases, these parallel systems can interfere with and even cripple the legal process. Problems with the criminal justice system should be addressed by reforms to that system, so that all crime victims and survivors (and potential victims and survivors) can benefit—not just those found on our nation’s campuses.

FIRE’s legislative and policy director Joe Cohn detailed the disparities between criminal justice and campus “justice” in The Hill in August:

Campus hearing panels stray beyond their competence when asked to adjudicate campus sexual assault accusations. They lack the ability to gather forensic evidence and the expertise to evaluate it. They lack the ability to subpoena witnesses or put them under oath. Parties do not have discovery, and rules of evidence limiting the use of improper information and requiring the consideration of relevant material do not apply. Except in North Carolina and North Dakota, neither student has the right to legal representation. Expecting panels of student conduct administrators, professors, and students operating under these limitations to consistently reach just results is unreasonable.

The criminal justice system is the best system we have to hold criminals accountable. Requiring mandatory reporting of campus sex crimes to police provides a better chance that justice will be served and that the public will have confidence in the outcomes.