What Might a Police Investigation of the UVA Rape Charges Have Looked Like?

Megan McArdle of Bloomberg View penned a much-needed column on Monday titled “UVA Should Help Police Catch Alleged Rapists -- Now.” She points out that some have raised doubts about University of Virginia student Jackie’s story of her alleged rape by seven men at a fraternity party as retold in Rolling Stone by reporter Sabrina Rudin Erdely. McArdle says to herself,

“[W]ell, if there are problems with Erdely’s story, it will probably come out eventually, because there’s enough detail that can be checked.”  But there’s a corollary to that: If the Rolling Stone article’s allegations are true, there’s also enough detail to put at least a couple of people in jail, and possibly the whole group, even if Jackie (the victim) is reluctant to assist the investigation.

In my TIME magazine piece on the case, also from Monday, I wrote about one of the very worst ramifications of handling rape accusations in campus faux-justice systems:

Foremost is the fact that many campus sex crimes are never subjected to professional forensic investigation, leaving perpetrators unpunished and free to commit further crimes. …

No rape victim, on campus or off, should be required to report what happened to them to the police or to anyone else. But designing a system that encourages silence or the avoidance of law enforcement is unconscionable.

Because of the nature of the crime, it’s very tempting to set up a system for adjudicating sexual assault that is wholly dependent on the wishes of the victim. Such a system is popular with victims’ advocates, and many or most colleges have decided to adopt such systems, including UVA. Federal government regulations, while not requiring victim-driven systems, make such systems possible on campus. This is done for the compassionate and understandable reasons of not wanting to make the victim revisit a traumatic experience she or he might wish to forget or move past.

But it’s important to remember that this is not how we treat crime in American society at large, and that there’s a good reason why we don’t. The government has the responsibility to enforce the law, regardless of whether a victim or other complainant wishes to see the perpetrator brought to justice. Imagine that a homeless person with no family is murdered in a high-crime area. He has no family to advocate for him, and potential witnesses aren’t interested in cooperating with police, either out of fear or hostility. Does that relieve the state from the duty to investigate the murder and punish the culprit? No. If that were the case, the idea of “equal justice under law” would be void of meaning. A crime is still a crime, even if the victim or others who could help don’t wish to do so.

In the same way, as McArdle points out, the Charlottesville, Virginia, police should not hesitate to do their best to investigate this gang-rape accusation, now that it has become public knowledge. McArdle lists a few of the steps they could take even now that the case is two years old. For instance, she points out that given the clues in Rolling Stone, it should be quite easy for authorities to identify “Drew,” the student accused of luring the alleged victim to the site of the gang rape. But there are many more steps that the police could have taken had someone at UVA reported the crime soon after it happened. Considering the information presented in the article and taking Jackie’s account as accurate, such steps might have included the following:

• Jackie’s account said that the party took place at the Phi Kappa Psi fraternity house. Police could have canvassed the house, knocking on doors and asking questions about whether anyone saw anything that night. Jackie’s account says that she left the house with her face beaten and her dress spattered in her own blood. Police could have questioned every single resident and guest about whether and where they saw Jackie that night or anyone else who was injured. They could also have garnered from each resident a list of people who they saw at the party and then interviewed all of those potential witnesses.
• Jackie said that she was raped after being smashed through a glass table. Police could have searched every bedroom for signs of struggle, which would certainly include broken furniture or shattered glass. If found, they could have looked to see if blood was present on the glass. This could have been DNA tested for Jackie’s blood or those of her assailants, as they would have been exposed to the broken glass as well during the rape. Police could also have asked the fraternity members to show their legs and arms and looked for signs of cuts indicative of glass injuries.
• Jackie does not mention having her dress removed during the rape, and notes that it was bloody. It may also have had specimens of semen or other bodily fluids of the perpetrators on it. Police would have known to collect the clothes worn on the night in question in order to examine them for such physical evidence. If the dress had been thrown away, they may have been able to retrieve it nevertheless, especially with UVA’s help.
• Police could have checked security camera footage and entry and exit records of campus facilities to establish a timeline and possibly even capture a still frame of Jackie’s injuries, which would be excellent proof at trial that physical abuse took place.
• Police could have gone to Jackie’s dorm and asked students in her hall who her friends were and how to find them. This would almost certainly turn up her three “best friends” who she called immediately after the rape took place. They would be hugely important witnesses, and they would almost certainly know that Jackie had gone as “Drew’s” date to the party. This would have led to the questioning of Drew, the main perpetrator in Jackie’s account.

I am not a criminal lawyer or police detective, and I am sure there is much more I am missing, but all of these steps could have been taken by police had they promptly gotten this much information from UVA or from anyone else: “Jackie [Last Name] says she was raped on September 28th at the Phi Kappa Psi house party.” It’s possible that no further cooperation from Jackie would have been required. And by the time the police had gathered evidence and questioned witnesses, Jackie might have felt comfortable cooperating. Indeed, someone might even have confessed upon questioning and turned in his co-conspirators, who could be safely locked away by now instead of freely roaming campus or the streets.

There are a lot of “mights” and “coulds” above, but that’s true of any criminal investigation. Police look for leads, and then follow up. But nobody called law enforcement upon learning of the crime—not Jackie, not her “friends,” and not UVA when it found out months later. This may be in part because victims’ advocates are launching campaigns urging allies not to pressure students into reporting. Whatever the cause, this investigation has now become much more difficult, and maybe impossible, to do successfully. That doesn’t mean that the police don’t have an obligation to investigate anyway. But it should serve as a reminder that whether an allegation turns out to be true or false or somewhere in between, when you hear a credible report about a gang rape or sexual assault on campus, there’s simply no good alternative to calling the police. Telling students that there is a better alternative does them, their peers, and society at large a profound disservice.