Prison or expulsion?

While most institutions of higher education are ill-prepared to deal with complaints of rape or sexual assault, the bottom line is that the maximum sentence is expulsion.

Contrast that with state law where the maximum sentence is time in prison.

In Missouri, the law is clear. Chapter 566 RSMO stipulates various degrees of sexual assault, the worst being, “A person commits the offense of rape in the first degree if he or she has sexual intercourse with another person who is incapacitated, incapable of consent, or lacks the capacity to consent, or by the use of forcible compulsion. Forcible compulsion includes the use of a substance administered without a victim’s knowledge or consent which renders the victim physically or mentally impaired so as to be incapable of making an informed consent to sexual intercourse” (Chapter 566.030).

Then there is statutory rape, which is basically having sex with someone under the age of 17.

In all cases, however, the penalties are severe, ranging from five years in prison to life. It is unknown where Betsy DeVos (the U.S. Secretary of Education) gets her information, but she has changed the rules to give much more credence under the federal Title IX to the alleged sexual violator than the victim.

This, in spite of several studies that show that false reporting of rape is between 2 and 10 percent — or, to put this in the positive, between 92 and 98 percent of reports are true. The variance is due to the difference in various prosecutor and police reports.

As stated earlier, institutions of higher education — including the University of Missouri — have not in the past dealt with rape complaints and, as a result, tend to give such complaints short shrift. In the event that a student is found guilty, the worst option is expulsion.

The University of Missouri has crafted a statement that hearing commissions may use, but a good (or even a mediocre) attorney could render it useless.

If, however, the person accused of rape is called before a jury in our system of justice and is found guilty, a sentence of up to life in prison can be imposed (according to Missouri law, there can be no suspension of sentence). Several students have been found guilty of rape in a court of law and faced years in prison.

There is no such thing as “double jeopardy” in this situation. The person, if a student, can be expelled from an institution of higher education and, if tried in a court of law, can be sent to prison.

So, it is not really, as implied in the opening sentence, one or the other. It is both. Ms. DeVos may be trying to give the alleged rapist more leeway in a college Title IX hearing, but she cannot change state law.

About opinions in the Missourian: The Missourian’s Opinion section is a public forum for the discussion of ideas. The views presented in this piece are those of the author and do not necessarily reflect the views of the Missourian or the University of Missouri. If you would like to contribute to the Opinion page with a response or an original topic of your own, visit our submission form.

Ken Midkiff, formerly the director of the Sierra Club Clean Water Campaign, is now chair of the city’s Environment and Energy Commission and serves on the board of directors of the Great Rivers Environmental Law Center.

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