The sexual-misconduct allegations against University of Minnesota basketball star Reggie Lynch are tragic in so many ways, but mostly, as in any such incident, for the alleged victims. As a retired sex-assault investigator, I think it's important to distinguish between a criminal sexual assault and the university's finding of sexual misconduct by its Equal Opportunity and Affirmative Action (EOAA) office. I think readers get confused and wonder why the county attorney is not charging a case when the EOAA has made such a finding.

When a police detective investigates an allegation of sexual assault, he or she first interviews the victim and has a sex-assault nurse perform an exam for evidence purposes. DNA evidence will be sought, since it is very compelling and can refute a suspect's denial that any sexual contact took place. The sex-assault exam also documents signs of sexual violence, along with alcohol and drug use.

The scene of the alleged sexual assault will be processed for evidence, including DNA, signs of violence and corroboration of victim's statement. If there are witnesses or those who can corroborate any or all of a victim's statement, those people will be interviewed as well.

Finally, the suspect in the sexual assault is sought and arrested.

If the suspect does not invoke the right to silence, a statement is taken from him or her as well. His or her DNA will be gathered either voluntarily or as the result of a search warrant, and search warrants may be requested for the suspect's dwelling and his or her computer, phone or other devices.

Based on the results of this investigation (and I've probably left out a step or two), a determination by the investigating detective will be made whether to submit charging information to the county attorney. If it is, the county attorney then will consider the detective's investigation and may give the investigator a specific list of items and/or tasks that need more investigating, or may deny charging for lack of evidence, or may decide to charge the case.

I don't know if the investigating police department (if it's other than the university's) shares all of its investigative information with the EOAA. What troubles me about the U's decision to make a sustained finding of sexual misconduct is that it seems it could be based in no small part on whether a verbal request for affirmative consent to any sexual contact was made and received. According to a Star Tribune article about an earlier allegation against Lynch ("Previous accuser feels vindicated," Jan. 6), the university's investigating sergeant in that case noted that Lynch did not request affirmative consent and the victim did not give it. As a result of this, the sergeant was submitting the case for charging. While the county attorney would probably welcome a verbalized affirmative consent to sex, the fact that one party said there was such a thing and the other party said there wasn't doesn't really substantiate any part of the criminal case. Much more is needed to charge a sex case.

While "he said/she said" sex-assault cases are common, a thorough investigation as noted above can usually bring the victim's case around to a preponderance of evidence, one way or another, which then gives the county attorney a better chance to make the proper charging decision. This idea that a couple considering sex must verbalize the wish to have it and that both must consent to it seems ridiculous for a number of reasons. For instance, the language is left up to the participants. Each case becomes an idiosyncratic instance based on culture, vernacular or even the couple's ability to communicate properly. As a result of these confusing factors, one of the two may believe themselves to have received the green light for sex, while the other may not believe it was given. Levels of intoxication come into play as well.

For the affirmative confirmation to be valid in court, it would need to be understood, documented and signed by both parties. It would be even better if the signing were witnessed to ensure that there was no duress. If it could be notarized, that would be the icing on the cake. Having both parties contact their attorneys prior to any monkey business would probably be compelling as well.

Have we reached the point of ludicrousness yet?

Richard Greelis, of Bloomington, is an author and a retired police detective and teacher.