The Cornell University sex assault case shows the challenges of making a complex case in a court of law.
You will be given a fair trial. Afterwards you will be shot.
General Albert Burkhalter (played by Leon Askin) to Colonel Wilhelm Klink (played by Werner Klemperer)
Hogan’s Heroes
One of my favorite websites is Legal Insurrection and last week I listened to their podcast on the Cornell University rape case. The complainant, known as Jane Doe, has filed a lawsuit against the university and seven students. Ms. Doe claims the students raped her two years ago in a fraternity house party, and the university failed to take appropriate action. One of the podcast cohosts mentioned how things like this always seem to pop us during election season. I would point out it also happens when a Republican president nominates a Supreme Court justice, but we will skip that for a moment.
Looking at this incident, it shows how a rape case can be very challenging in a court of law. The facts as we know them now. On 10/19/24 Jane Doe did attend a party at the Chi Phi fraternity house with a student whom she had a long-term romantic relationship. Ms. Doe admits consenting to sex with her (for lack of a better term) boyfriend, then consented to sex with another student. She claims in her lawsuit she was too impaired (ketamine, marijuana and alcohol) to consent. Ms. Doe’s lawsuit states “two additional men performed sex acts on her without her consent, a third man of kissed her without her consent, and two other men stood at the foot of the bed acting ‘more like voyeurs than anything.'” The next day Ms. Doe reportedly spoke with a university doctor that she may have a urinary tract infection, and sought testing for a STD. She did not report a rape or have a SANE exam done.
Ms. Doe reported the assault to the campus police three weeks later. It apparently was thoroughly investigated by them, as the report was in the thousands of pages, including 50 interviews with 32 witnesses and 12 days of hearings. The report was sent to the district attorney, who declined to pursue charges based on the accounting. Fast forward two years, Ms. Doe and her attorney are pursuing a civil suit demanding tougher penalties for this incident.
Before we go further, we should review the legal definition of sexual assault in the state of New York. Article 130 of New York Penal Law (forgive the graphic details) defines sexual assault as when someone, without effective consent, forces a sexual organ into someone’s bodily orifice i.e., her vagina, mouth, or anus. The statue covers impairment by being Mentally disabled (complainant suffers from a mental disease or defect rendering them unable to consent), Mentally incapacitated (under the influence of a narcotic or intoxicating substance rendering them incapable of appraising the nature of his or her conduct, or being Physically helpless (person is unconscious or otherwise physically unable to communicate).
If what Ms. Joe claims in her lawsuit is accurate, this will meet the definition of sexual assault. Since this lawsuit was filed, there have been multiple protests against the seven unnamed students and the university in general. NY Governor Kathy Hochul appointed Attorney General Letitia James as special prosecutor for the case. While this shows politicians “doing something,” will this generate proof of a crime. Forgive me I say no.
I’ve had to deal with women who were sexually assaulted, and their emotions understandably override their judgement. An investigator must go through details of the most traumatic experience of her life, while she is not able to think logically. A critical matter is having the complainant submit to a SANE exam, commonly known as a “rape kit.”
In the immediate aftermath of a sexual assault the victim usually wants one thing. A shower. They want to remove from their body the infection her attacker put into her. And that is the absolutely worse thing to happen. Her body (mouth, vagina, fingernails, hair) contain the critical DNA evidence needed to identify and convict their assailant. Many victims describe the exam as almost as bad as the assault itself. Then afterwards, if the case goes to trial, the victim must identify the defendant as her attacker in an open court and be cross examined by the defense council. If she refuses to testify, the case will not be made, and the rapist goes free.
Why do we do this to a woman who has been raped? Because it is how we handle crimes against persons in Western civilization. The defendant has an absolute presumption of innocence, cannot be forced to testify, and doesn’t have to present a defense. The prosecution must prove its case, in separate sections of the law and in total. If he failed to prove one section of the charge, that brings up reasonable doubt which compels the jury to acquit.
Why review this criminal procedure? Because these seven young men are already being convicted in the court of public opinion. At some point their names will be leaked, and those protestors will move from the university campus to someone’s house. For someone who had not been charged, much less defend themselves in open court.
I’m not questioning what Ms. Doe is saying. What I am saying is those defendants, assuming there are charged and indicted, will have a day in court to defend themselves. The guilt or innocence of this serious crime is not something to be judged by a kangaroo court, i.e., the court of public opinion, or “experts” being interviewed on cable TV shows. The law is a slow deliberate process for a reason. We need to ensure the defendant we convict is guilty of a crime and had available all the legal assistance he is entitled to by law.
A common political cliché is “What do you call a conservative? A liberal who’s been mugged.” I heard a liberal give a good retort to that, “What do you call a liberal? A conservative who’s been indicted.” Fair point. Let the legal process continue on, not the kangaroo court of public opinion.
Michael A. Thiac is a retired Army intelligence officer, with over 23 years experience, including serving in the Republic of Korea, Japan, and the Middle East. He is also a retired police patrol sergeant, with over 22 years’ service, and over ten year’s experience in field training of newly assigned officers. He has been published at The American Thinker, PoliceOne.com, and on his personal blog, A Cop’s Watch.
Opinions expressed are his alone and do not necessarily reflect the opinions of current or former employers.
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