Pub­lished by Cam­pus Progress

Two Michi­gan State Uni­ver­sity bas­ket­ball play­ers accused of sex­u­ally assault­ing a young woman in their dorm are off the hook, accord­ing to a report released by the Michi­gan Mes­sen­ger.

Many ele­ments of the case are typ­i­cal of cam­pus acquain­tance rape sce­nar­ios. The accused are col­lege ath­letes and the assault allegedly occurred after a night of drink­ing and casual socializing:

The vic­tim told police the play­ers pen­e­trated her in var­i­ous posi­tions. The vic­tim told detec­tives the play­ers allegedly asked her “how does that feel?” and “how do you want it?” The vic­tim says she told the play­ers she didn’t want it and gave “other indi­ca­tors she was not a will­ing participant.”

The vic­tim told police that the play­ers pinned her down, but at one point she freed her arms momen­tar­ily and struck one of the play­ers in the face. The player was on top of her and in response to her hit­ting him, he allegedly said, “Don’t. Just relax. C’mon,” as he con­tin­ued to assault her, the report says.

But what sets this par­tic­u­lar case apart from oth­ers is that one of the accused play­ers actu­ally cor­rob­o­rates the victim’s state­ment, admit­ting to author­i­ties that he knew the young woman was unwilling:

Dur­ing his inter­view with detec­tives, the one player who vol­un­teered a state­ment cor­rob­o­rated much of the victim’s state­ment, the report shows. He told inves­ti­ga­tors that when it was clear from the victim’s state­ments that she did not want to have sex, he stopped. How­ever, the other player con­tin­ued “despite her reluc­tance and state­ments that she did not want to con­tinue.” The vic­tim con­firms that player’s account.

The player told detec­tives he was con­cerned “over the girl’s reac­tion to the cir­cum­stances,” not­ing she was “timid” and “not aggres­sive.” The player then admit­ted to detec­tives that he under­stood how the woman believed she was not wel­come to leave the room, in part because she kept ref­er­enc­ing that the two were “big­ger” than her.

Given the player’s affir­ma­tion of the victim’s state­ment, the case against the men should have been a “slam dunk.” Accord­ingly, the MSU Police Depart­ment wasted no time send­ing their report to the prosecutor’s office, with the rec­om­men­da­tion that both men be charged with Crim­i­nal Sex­ual Con­duct 1, the sever­est level of sex­ual assault under Michi­gan law.

But the assigned pros­e­cu­tor, Stu­art Dun­nings, has declined to press charges against the ath­letes, say­ing that the prosecutor’s office is not con­vinced that force or coer­cion occurred in this case (a judg­ment directly con­tra­dicted by the police report), and that vic­tim her­self chose not to press charges (a claim denied by the victim).

Dunning’s deci­sion, while rep­re­hen­si­ble, shouldn’t be sur­pris­ing. An inves­ti­ga­tion of sex­ual assault on cam­puses con­ducted last year by the Cen­ter for Pub­lic Integrity (CPI) found that pros­e­cu­tions of cam­pus acquain­tance rapes are minis­cule. Because most acquain­tance rapes are per­pe­trated when the attacker, the vic­tim, or both are ine­bri­ated ren­ders, such cases are often tricky to adju­di­cate and become “he said, she said” disputes.

And when pros­e­cu­tors turn down these cases, the only avail­able recourse for many vic­tims is to seek jus­tice through their university’s dis­ci­pli­nary system.

Unfor­tu­nately, most col­leges are ill-equipped to inves­ti­gate and resolve sex­ual assault cases and are more­over unwill­ing to impose harsh sanc­tions on perpetrators.

A 2001 report [PDF] com­mis­sioned by the Depart­ment of Jus­tice found a num­ber of inher­ent prob­lems with uni­ver­sity poli­cies and prac­tices regard­ing sex­ual assault, includ­ing a ten­dency to “unin­ten­tion­ally con­done victim-blaming” and fail­ure to fol­low due process pro­ce­dures. In addi­tion, only 38 per­cent of schools require sex­ual assault sen­si­tiv­ity train­ing for cam­pus law enforce­ment while only 37 per­cent fully com­ply with fed­eral reg­u­la­tions about report­ing crimes.

The CPI inves­ti­ga­tion sim­i­larly found that, even when col­lege admin­is­tra­tors find a stu­dent guilty of sex­ual assault, they are reluc­tant to expel the perpetrator:

Ver­dicts are edu­ca­tional, not puni­tive, oppor­tu­ni­ties. […] Not every sex­ual offense deserves the harsh­est penalty, [admin­is­tra­tors] argue; not every cul­pa­ble stu­dent is a hard­ened criminal.

So, while a man who rapes off-campus could face years in jail for his crime, a man who rapes on-campus is unlikely to even be expelled. In too many cases, stu­dent rapists face mere sus­pen­sion or poten­tially even lighter sanc­tions than that.

The ten­dency among admin­is­tra­tors to view sex­ual assault as “teach­able moments” flies in the face of evi­dence that stu­dent rapists are often ser­ial rapists—guilty of vic­tim­iz­ing an aver­age of six women dur­ing their col­lege career.

The deci­sion to absolve stu­dent rapists of their crimes can be costly, as doing so could vio­late Title IX—a fed­eral civil rights law that bars sex dis­crim­i­na­tion in pub­licly funded edu­ca­tional pro­grams. In recent years, the ACLU has won two land­mark law­suits against pub­lic uni­ver­si­ties guilty of let­ting rapists off the hook. In 2008, Ari­zona State Uni­ver­sity paid out $850,000 after it failed to expel an ath­lete with a his­tory of harass­ment who later raped a young woman. And in 2007, the Uni­ver­sity of Col­orado paid out $2.5 mil­lion after its foot­ball team sex­u­ally assaulted two women.

Whether Michi­gan State Uni­ver­sity will take action against the bas­ket­ball play­ers accused of rape remains to be seen. The prospects don’t look good. While the uni­ver­sity reported 32 forcible sex offenses on its cam­pus between 2006 and 2008, it reported no dis­ci­pli­nary actions asso­ci­ated with those crimes.

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