Campus Hearings Shouldn’t Abandon Vital Legal Protections

By May 18, 2014

By Robert Shibley at The Boston Globe

JOAN VENNOCHI’S May 11 column, “Protect assault victims, not the brand.” overlooks the serious unreliability introduced by using the “preponderance of evidence” standard in campus sexual assault hearings.

In a civil trial using the same standard, participants enjoy meaningful due process protections, including the right to a lawyer, sworn testimony under penalty of perjury, the right to inspect evidence, the right to face one’s accuser, the right to cross-examine witnesses, the exclusion of hearsay or other unreliable evidence, impartial judges, and an unbiased jury of one’s peers. On campus, students can expect few of these protections or, in many cases, none of them.

Some of these legal protections date back to ancient Rome. Given the serious risk of error created by abandoning them, allowing for a student to be deemed a rapist on merely a 50.01 percent likelihood that he or she is guilty of an accusation makes erroneous, unjust findings all but inevitable.

That’s why civil liberties groups such as ours have criticized mandating the use of the preponderance standard — our judiciary’s lowest — in campus sexual assault hearings.

Robert Shibley

Senior Vice President

Foundation for Individual

Rights in Education