Monday, April 16, 2012

Student Newspaper: 'Beyond a reasonable doubt' standard for sexual assault 'can feel tantamount to victim-blaming'

An editorial in the Daily Tar Heel, the student newspaper at the University of North Carolina at Chapel Hill, praises the school's new sexual assault policy and defends the school's decision to substantially lower the burden of proof in such cases from “beyond a reasonable doubt” to “a preponderance of evidence.”

"We appreciate the honor system’s stringent usual standard of evidence, which conforms to an innocent-until-proven-guilty principle," the editorial opines. Then, in one of the more startling statements we've read recently, the editorial asserts: "In practice, however, such a high burden of proof can feel tantamount to victim-blaming."

Insisting that there be reasonable certainty before declaring someone factually guilty of an offense that will alter his life has nothing whatsoever to do with "victim blaming," and suggesting that the two are linked, even by a "feeling" that they are, is troubling on a host of levels. It evinces a profound absence of appreciation for a standard long-cherished in our jurisprudence as vital to due process and fair treatment. It is universally accepted that the "beyond a reasonable doubt" standard reduces the risk of punishing the presumptively innocent based on factual error.

The editorial itself recognizes that the prosecution of sexual assault cases is "complicated." That is generally correct because such cases often come down to a battle of "he said/she said" evidence. But the absence of overriding evidence to establish guilt or innocence is scarcely a valid, or, respectfully, a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite. It is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

Students have an enormous interest in not being expelled for sexual assault, because such punishment can be tantamount to, and is sometimes worse than, a deprivation of liberty. “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Cornell law professor Cynthia Bowman recently said. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” See here.

The editorial posits an unconvincing conclusory coda: "The accused are of course also entitled to fair treatment, which they’ll continue to receive under the new system." Nowhere does the editorial bother to note the undeniable fact that the reduced standard of proof will make it easier to find an innocent student guilty of something he did not do.

This editorial manifests a disturbing, and woefully misinformed, disregard of the rights and interests of the presumptively innocent.