How a lower standard of evidence in sexual assault cases favors everyone

When I show former colleagues our site, if they respond negatively, they usually do so because they think our job is to get “guilty” people out of trouble. I knew that was going to be a common reaction when I started College Judicial Consultants, but that’s really not what we do. We try to make sure that people who are not responsible are found not responsible, and that those who are responsible receive the minimum sanction possible given all of the facts (i.e., the best result for that student). One would then think that we would like a higher standard of proof than the common one used by judicial boards because it would make our job easier, but the opposite is actually the case. The lower standards may result in more people being found responsible, but it allows boards to use discretion and the needs of the people involved to determine sanctions.

(Before I continue I want to define the terms I’m using so we’re on the same page. The criminal standard is the one we all know from shows like Law and Order, and that’s “beyond a reasonable doubt.” For all intents and purposes, think of it as a reasonable person’s 100%. The lower standard used in civil cases and in some judicial cases is “clear and convincing,” (C&C) which, depending on who you ask, is about a 75-80% standard. The most common one (and the one I believe in the most) is the preponderance of the evidence (POE) standard, which, when I was at MIT, I described to students as “50% + a butterfly’s wing.”)

I came across this article the other day on The College Fix which describes how Patrick Leahy is dropping requirement that colleges use the standard of preponderance of evidence in sexual violence cases. This is simply the wrong move, as it will actually wind up hurting accused students while further increasing the chilling affect of accountability systems on the survivors.

There are many reasons why not using the preponderance of evidence rule is harmful to all parties involved and the system itself:

It furthers the adversarial nature of the hearings, revictimizes the survivor, and discourages the survivor from seeking accountability for the perpetrator. Judicial hearings, in theory, are supposed to be non-adversarial and most schools work hard to get as close to this as possible. When the standard is POE, it doesn’t make any sense to attack the accuser. If an accused student’s defense is to attack the person accusing them and not tell the story from their perspective, the boards are left with the question “is this a good person” which is (or should be) totally irrelevant to the hearing. Even if a survivor is a terrible person, he/she can still be a victim. POE forces the parties to talk about what happened and keep discussions of the other person’s character to the facts relatable to the situation itself. If, however, it’s the C&C standard, then why not spend all of your efforts attacking the character of the accuser? There are no rape shield laws and there are no rules of evidence to follow, so why not bring up all those rumors you “heard?” A survivor will have to spend time proving that he/she is not lying, not a whore, etc. This will clearly revictimizes the person much more than the traditional system where they only have to deal with what happened. Because of the increase in the revictimization (and what they will need to do to prepare for the hearing) this will have an even stronger chilling effect on survivors and even fewer cases will be heard. If you believe the current literature about perpetrators, this means that more predators will escape accountability and will be much more likely to do it again. (See Dr. David Lisak’s “The Undetected Rapist.)
It decreases (or should decrease) the sanction range available to a hearing board. This is going to get a little convoluted so bear with me. The logic with using the C&C standard is that there are a lot of students who, in the course of being a regular college student (i.e., drinking, using drugs, trying to get laid) students will find themselves in situations that may meet the “technical” definition of sexual assault or rape, but are not done with the intention behind those policies. The image is of a young Dave Kennedy drinking his way through numerous beer pong games who meets a young lady and, eventually, hooks up. If the woman is also intoxicated then poor Dave unknowingly committed sexual assault because she did not have the capacity to consent. It’s a very sympathetic scenario because whether the board is faculty, staff, students, or a combination people have either been in that situation before or know someone who has. The only real problem with that scenario is that it’s complete nonsense.Keep in mind, the question isn’t whether the act violated the policy, it’s whether the person in question brings a case forward. In otherwords, there are no hook up police who assess each scenario and then accuse someone of sexual assault. The party involved has to feel that they were violated without his/her consent. There is a HUGE difference between feeling that way and “regretting” hooking up. It is a rare case where someone goes forward and sees the case through without believing that he/she was assaulted. While it’s true that C&C will have a chilling effect on those people and may indeed prevent those rare cases from moving forward, it will also stop people who do not think they can “prove” their case (i.e. meet the “beyond a reasonable doubt” standard.)Even assuming that there is not a chilling effect, most sexual assault on campus involves drinking or drug use by one or both parties so how “clear and convincing” can a person be? The more drunk a victim is the more likely their memory will be shaky, and the less likely they will be able to prove their case. On those rare times when a survivor does meet that standard, a board would not be able to justify any sanction less than a lengthy suspension or expulsion. If you find someone 75% a rapist, how do you justify keeping them on campus? The lower standard allows a well-trained board to account for any actual ignorance on the accused’s part and temper the sanction accordingly.
It perpetuates the notion that people raising these claims are “liars.” This one’s much less complicated. Students understandably think of judicial hearings as determining “guilt” and “innocence.” If you are accused of something and not found responsible, then you aren’t guilty, and therefore the person accusing you was lying. We can know this isn’t true all we want, but students will still think this way. A higher standard lowers the number of cases heard and lowers the percentage of findings of responsibility. This will make it falsely seem like fewer sexual assaults are occurring and that “most” of those that do come forward are not true. More chilling.
Board members aren’t idiots. There is a big difference between finding someone responsible for something and sanctioning them. A student can be responsible for something in a “technical” or “negligent” sense and there should be a way to both find them responsible and not interrupt their studies while they are reformed. A simple truth about these cases is that if a board is on that 50% line for responsibility they are not going to find someone responsible. I have been at over 20 hearings on interpersonal violence and not once has someone been found responsible for a heinous offense because of a technicality. Train your board correctly and include other violations at hearing so that your board can do the right thing all around. For some reason colleges and universities build systems around an imaginary innocent person instead of around very real and identifiable predators. No system that was equally concerned with both parties would ever use a standard other than POE.
It puts the accused student at much greater risk for civil or criminal sanctions. This is also easy. One of the best things about a college disciplinary system is that it is separate from both the civil and criminal systems. This means that a school can hold it’s citizens accountable without it meaning that they are “guilty” in some larger societal sense. However, when a school uses a standard of proof the same as one of those parallel systems it puts the accused student at risk for additional penalties. Afterall, if you can prove someone committed an act of sexual violence by the C&C standard, why not then sue them? You’ve already proven the case. An accused student would also not be able to move on because the victim would have some statutory period in which to bring these claims which would keep a gun at the student’s head well after the school is done with the matter. I can hear all you advocates saying “good” out there, but it is easy to see how this specter of future legal consequences would encourage character assassination and lying to ensure that the case won’t be transferrable as easily. In other words, if you make the experience as bad as you can for the victim, they are less likely to want to do it again.
I believe that we are thinking about these issues in the wrong way. Our systems should be set up to encourage the discovery of the truth. The lower standard minimizes someone’s ability to use cleverness to evade responsibility while allowing for a more appropriate sanctions when responsibility is found. If a school has a trained and experienced board hearing these issues, then the standard will not matter. Centering the argument around the standard implies strongly that a judicial board is nothing more than a machine which follows flow charts to determine how to handle situations and not capable of using higher thinking to come to a resolution that sanctions, educates and restores. That’s not an implication I accept.