Unreported Sexual Assault

Abstract

Unreported criminal behavior is troubling for a variety of reasons, including the likelihood that it reduces the law’s ability to deter wrongdoing. This is especially unfortunate in the case of sexual assault and other wrongs where the wrongdoers are often repeat offenders who will harm others until apprehended. In many cases, these assaults take place over many years so it is especially easy to see why early reporting could prevent many subsequent harms. One approach to the problem of wrongdoers who are difficult to apprehend, and thus apparently undeterred by tort and criminal law, is to alter the law’s approach, perhaps by focusing less on deterrence and more on education, or on separating populations from which offenders and victims are likely to be drawn. Another is to double down on deterrence by raising the penalty for those who are caught and convicted. The deterrence approach is difficult and often counterproductive where there is some doubt about culpability or where the factfinder and adjudicator have limited power, as in the case of wrongs committed on university campuses and in many workplaces. Our focus here is on sexual misdeeds on college campuses, but much of the analysis is easily applied to plagiarism and to various wrongs committed in the workplace. Some of the ideas offered here can be applied to crimes more generally, but it is useful to begin with wrongs that are judged by something less than a beyond-a-reasonable-doubt standard.