The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault

Abstract:     
This Article begins with a discussion of the prompt complaint requirement, corroboration requirement, and cautionary instructions in the criminal law of rape. These doctrines have greatly weakened in the formal criminal law of the fifty states and the District of Columbia because studies reveal that most victims of rape do not promptly complain to the police or other authorities, most rapes do not produce corroborating evidence, and most jurors are already cautioned by an underlying societal bias against those who claim rape.

The Article then identifies the emergence of prompt complaint, corroboration, and caution in campus sexual assault policies and practices. It analyzes the current policy at Harvard College, surveys other colleges' and universities' formal policies and informal practices, and explains why campuses would adopt discredited rules from the criminal law in their own disciplinary procedures. The Article then proposes a method to free disciplinary proceedings from the legacy of the prompt complaint requirement, corroboration requirement, and cautionary instructions and proposes model campus sexual assault provisions to effectuate this goal.

Keywords: Discrimination, criminal law, criminal procedure, rape

Accepted Paper Series