No firm timeline required for criminal investigation, prosecution of campus sex assault reports

Many University of Kansas basketball fans and others are anxiously waiting to see who, if anyone, will be charged with the rape reported in December at the team’s on-campus apartment building.

However, depending on evidence and other factors, there’s no legal requirement that has to happen soon — or ever — law enforcement and court representatives say.

The recent history of sexual assault cases on or near the KU campus drives home that point too. In some instances, cases have gone unresolved for years. A case in point is an alleged incident of sexual misconduct at the Kappa Sigma fraternity. The incident is alleged to have taken place in late September 2014. University officials in October 2014 placed the fraternity on probation for the incident, of which the university provided no details the public but described the allegations as “serious and disturbing.”

It was only in November of 2016 that the Lawrence Police Department submitted its report to the Douglas County District Attorney’s Office. The DA is still reviewing the case for possible charges.

Kansas law doesn’t create any timelines for rape cases to be resolved. Generally there are no requirements that police departments ever forward case files to the district attorney for charging considerations. Kansas once required rape cases to be prosecuted within five years, but a law that took effect in 2013 abolished the statute of limitations for the crime.

For most other sexually violent crimes prosecution must begin within five or 10 years, depending on various circumstances, according to a state statute provided by Cheryl Wright-Kunard, assistant to Douglas County District Attorney Charles Branson.

For rapes and other sexual assault cases reported on or near Lawrence university campuses in recent years, the precedent varies widely.

Some cases reported to law enforcement have taken months or even years to be forwarded to the district attorney or to be charged — if they are forwarded or charged at all, according to a Journal-World analysis. In some other cases, that process has taken just a few days.

In the McCarthy Hall case, a KU police report indicates that a 16-year-old girl was reportedly raped between 10 p.m. Dec. 17 and 5 a.m. Dec. 18 at McCarthy, where the men’s basketball team and other male students live. KU police took the report the morning of Dec. 18. All five people listed as witnesses in the police report are basketball players.

The case remains under investigation by KU police, who have not shared further details or information about a possible suspect.

When investigations lead law enforcement agencies to identify a suspect, the evidence is submitted to the Douglas County District Attorney’s Office, where a prosecutor will make a decision on whether to file criminal charges, Wright-Kunard said, in a written response to questions.

However, generally speaking, those agencies do not have to consult the DA’s office before closing the books on an investigation, if they choose to do so, Wright-Kunard said.

This means if either KU’s Office of Public Safety or the Lawrence Police Department, in their respective investigations, do not believe they have enough evidence, cannot identify a suspect or do not believe a crime took place, they may close the investigations without referring the matter to another agency.

“In practice, if the agency finds that there is no probable cause a crime occurred, then they typically do not send those reports to our office,” Wright-Kunard said. “If for some reason they think a case is a close call they often will go ahead and forward those cases to us or at least discuss the case with a charging attorney.”

To close an investigation, however, the evidence must lead in that direction, said James Anguiano, deputy chief for KU’s Office of Public Safety.

“An investigation can stay open for a while,” he said. “We don’t just close an investigation to close them.”

Anguiano would not comment specifically on the McCarthy Hall investigation. He also declined to comment on whether the KU Police Department, regardless of its findings in the investigation, would forward those findings to the Douglas County district attorney for review.

An examination by the district attorney would be the only assurance that a third-party not connected to KU had reviewed the high-profile case.

How much control do victims have in charging decisions?

“The victims wishes are one factor taken into consideration when deciding when to file a case. Ultimately, it is up to the prosecutor to decide whether or not to file a charge,” Wright-Kunard said, via email. “In the case of minors, consultation with parents or guardians may be appropriate.”

In Kansas, 16 is the age of consent, Wright-Kunard said. Intercourse with a child who is younger than 16 but over 14 is aggravated indecent liberties with a child; intercourse with a child under 14 is considered rape.

Under federal Title IX, universities are required to investigate and adjudicate reports of sexual harassment, including sexual violence, on their campuses whether victims report the incident to law enforcement or not. A student found more likely than not to have committed an offense may be disciplined by the university.

Those internal university investigations are conducted confidentially, and KU has repeatedly declined to publicly share specifics about cases and their results.

Past related stories

March 20, 2016: Reporting rape: Empower victims or pin down evidence? Anonymous sexual assault exams are one way to bridge conflicting approaches

Dec. 27, 2014: A losing proposition? In 10 years, Douglas County juries haven’t convicted anyone in alcohol-fueled acquaintance rape cases