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.


  1. Huh... who knew. I thought it was about protecting the innocent.

    Sad that an institution that has a law school, they don't understand the basic premise behind our judical/legal system.

    What a shame.

  2. Aren't people required by law to report crimes to the police? How on earth are they getting away with having their own different legal system?

    And when reporting crimes to the police, it would look bad on the uni for saying guilty when the normal police/courts say not guilty.

    I think every person 'charged' with assault at uni, should call the REAL authorities themselves ("officer, a fellow student and my uni are accusing me of ____, could you please send someone to determine whether or not I did __? I say not, but they want to punish me for ___ anyways.").

    The uni can't say no to a person calling the police when accused of a crime, and without (or until) a guilty result comes from the police&courts's proper inquiries, the uni's own shoot-first decision would look preposterous for them to even try. Maybe illegal even; circumventing the law or some such thing, maybe discrimination over unproven slander, something like that.

  3. Scented Nectar: example after example after example shows that universities are ill-equipped to do the complicated police work called for in a garden variety, he said/she said sexual assault claim.

    Since the criminal standard differs from the standard applied to supposed sex offenses, an exoneration by law enforcement would not be sufficient to clear an accused. Nor would I want an innocent man to subject himself to our law enforcement given the number of wrongly charged/convicted men.

  4. True, regular law enforcement is also too quick to charge and prosecute, but still, it seems what the universities are doing is illegal.

  5. Unfortunately, the lowering of this standard was dictated by the Obama administration on ALL universities receiving federal funds (which is all of them). A "preponderance of evidence" means that when a student jury is 51% sure that he did it because she is more convincing than he, the young man she accuses is expelled, regardless of whether the police and DA ever charge him because they lack evidence.

    The only studies of false rape accusations on college campuses of which I'm aware, found that at two large midwestern universities, 50% of the female accusers recanted their stories when counseled by trained women police officers. They not only recanted, but explained in detail why they falsely accused their victims. Their reasons included alibi, revenge, and sympathy.

    Now we've given this tremendous power to ruin any man or boy's life to these unscrupulous bottom-feeders. What the hell are we thinking?

  6. Roger, you may not be aware that at FRS, we have written extensively about the April 4, 2011 "Dear Colleague" letter. We were writing about it days after it was issued.

    I would add one thing: if the Dept. of Education's interpretation of the law is challenged by a university willing to do so, it is by no means a slam dunk that it will be upheld. Note that this was a letter, not a regulation promulgated after a period for comments, etc. Hans Bader and others who know the legal terrain well say the interpretation is flat-out wrong.

  7. Archivist, thanks. I'm new to this site and didn't know, but you are taking on important issues that few want to discuss and I will be following this in the future.


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