Most everyone would agree that combating sexual violence on college campuses is of critical importance. However, eviscerating students' due process rights is not the way to do it.
Some women's rights advocates have been celebrating new policy guidance from the Department of Education's Office for Civil Rights (OCR) instructing schools to apply a "preponderance of the evidence" standard—roughly 51% proof—when adjudicating claims of sexual harassment and sexual violence in disciplinary proceedings. In a recent column for The Enterprise, for example, Wendy Murphy wrote that
Harvard Law School and U.Va. are under investigation because they require sexual assault victims to prove their allegations by "clear and convincing evidence" (about 80 percent proof) rather than the less rigorous, "preponderance of evidence" standard (about 51 percent proof). The new advisory makes it crystal clear that both schools have been violating women's civil rights by applying the illegal higher standard.
Now, Murphy is someone who—despite being a former prosecutor—has been quoted as saying that "I'm really tired of people suggesting that you're somehow un-American if you don't respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you're a liar." Murphy has also said that she has "never, ever met a false rape claim." While I would seriously contest Murphy's implication that false rape claims do not happen (on this point I would refer readers to the Duke University lacrosse scandal, among others), a woman need not be lying about whether a rape occurred to be uncertain of her attacker's identity. Just look at the work of the Innocence Project, through which numerous people have been cleared of rape charges by DNA evidence after spending years in prison.
Based on her earlier public statements, it is unsurprising that Wendy Murphy supports finding a student guilty if a university thinks it's just barely more likely than not that a rape occurred. That does not mean, however, that the rest of us should accept this miscarriage of justice.
Most of us would be categorically unwilling to accept a "more likely than not" standard in other critical areas of our lives. Would you decline further medical testing if a doctor told you that your tumor was 51% likely to be benign? Would you drive over a bridge that a structural engineer said was 51% likely not to collapse under your car? Would you sign a tax return that your accountant told you "more likely than not" complied with federal tax regulations? Like these other scenarios, the impact of a finding that a student committed sexual harassment or sexual assault cannot be understated. Although university judiciaries cannot sentence a student to prison, a student found guilty of sexual assault will now have a record permanently stating that he or she has committed what everyone agrees is among the most serious of criminal offenses, leaving his or her entire academic, professional, and social future in grave jeopardy.
Obviously, the impact of a rape or sexual assault on a victim's life cannot be understated either. But contrary to what OCR is now telling universities, victims do not benefit from a standard of proof that injects so much uncertainty into the process that it all but guarantees that some investigations will result in wrongful findings of guilt. Due process protections are in large part a safeguard against human fallibility and bias, and diminishing those protections will only compromise the fairness and accuracy of proceedings in a way that will harm everyone involved. More guilty people may be found to have committed the offense using a lesser burden of proof, but more innocent people will be found guilty too, and in some of those cases it will mean that the actual perpetrator goes unpunished--an outcome that harms not only the victim in that case but potential future victims as well. While some allegations of sexual assault on campus have only one potential perpetrator, others—such as those involving the use of date-rape drugs at fraternity parties—have many. Using relaxed standards of proof all but ensures that innocent students will be found guilty while perpetrators of sexual assault will remain free to continue their behavior.
Supporters of the preponderance of the evidence standard, including OCR itself, point out that it is the standard of proof used in civil litigation, even in multi-million dollar lawsuits. But rape and sexual assault are crimes, not civil wrongs. And in the legal system, crimes—even misdemeanor offenses that do not carry the potential of jail time—require a much greater burden of proof. This is not only because of the serious impact of a criminal conviction on the life of the accused, but also because of the critical importance of ensuring that the actual perpetrator is brought to justice. Lowering the standard of evidence—which leaves greater room for human error and bias to infect the process--increases the chance that the actual perpetrator will go unpunished.
Comparing civil litigation to disciplinary charges for criminal conduct is comparing apples to oranges. The fact that under Title IX, crimes like rape and sexual assault constitute a form of sex discrimination for which universities can be held civilly liable does not change the criminal nature of rape and sexual assault. Nor does it change the life-altering implications of being found guilty of those offenses—even by a university judiciary—or the implications to the victim and to society at large of holding the wrong person responsible.
All of this naturally points to the problems inherent in a university judicial system—where cases are frequently prosecuted by people with little or no legal experience, and where students are frequently prohibited from having legal counsel—adjudicating serious felonies like sexual assault and rape. Katherine Hull, vice president for communications for the Rape, Abuse and Incest National Network (which according to its mission is "the nation's largest anti-sexual violence organization"), recently told Brown University's student newspaper that
Administrators should not address a criminal offense against a sexual abuse victim with the same kinds of disciplinary processes used to address an "overdue library book" ... It is a crime that should be handled through law enforcement.
By protecting the integrity of the justice system, due process rights benefit everyone. OCR's new guidance to universities should be of profound concern not only to anyone who is considering sending a child to college (after all, would you want your child's entire future riding on a "more likely than not" standard?), but to anyone who understands the critical importance of due process rights and fundamental fairness to a civilized society.