In my Verdict column for this week, I discuss the California "yes means yes" law, which includes a variety of provisions that post-secondary-school educational institutions in California must adopt in their campus codes to maintain students' eligibility for state financial aid. One provision requires that codes define "consent" to sexual activity as an affirmative verbal or non-verbal behavior indicating "yes" rather than as the absence of any statement or conduct conveying "no." In my column, I talk about why this definition of consent matters, and I discuss some of the criticism that has been leveled at it. In this post, I want to focus on a different feature of the California law, one that requires a "preponderance of the evidence" standard of proof in campus sexual assault cases.
Our legal system includes two primary standards of proof, by which a party that bears the burden of persuasion must convince the trier of fact that his, her, or its version of the facts is accurate: preponderance of the evidence and beyond a reasonable doubt. Proof by a preponderance of the evidence amounts to proof that your version of events is more likely to be accurate than is your opponent's version of events. If you are a plaintiff in a civil case, preponderance will ordinarily be your burden.
Beyond a reasonable doubt is, by contrast, an extremely heavy burden that is typically borne only by the prosecution in a criminal case. To obtain a guilty verdict, the prosecution must prove beyond a reasonable doubt that the defendant is guilty of each element of the offense charged. This burden is constitutionally mandatory in criminal cases, as a matter of Due Process.
In between these two burdens lies "clear and convincing evidence." In some classes of civil cases, the party that bears the burden of persuasion must convince the trier of fact that his, her, or its version of events is true, and the proof must be more than just enough to get over the 50/50 preponderance of the evidence hurdle. At the same time, the proof need not be strong enough to obtain a conviction in a criminal case. One example of an action that -- as a matter of constitutional law -- requires proof by clear and convincing evidence is civil commitment, in which someone will be confined as mentally ill and dangerous. Though the incarceration here need not be for committing any crime, it nonetheless constitutes a sufficiently grave deprivation of liberty to require something more than preponderance of the evidence as its standard of proof.
A number colleges have voluntarily applied a "clear and convincing evidence" standard of proof in disciplinary cases, even though there is no constitutional law that requires that they do so. For such colleges, the "yes means yes" law in California poses a potential challenge: a college that adopts the new sexual assault provisions must either lower the standard of proof for all disciplinary actions, or it must accept a different standard of proof for sexual assaults than it has for other sorts of campus code violations.
Some critics have attacked the "yes means yes" law (as well as campus codes outside the State of California that conform to its provisions) for, among other things, providing such a low standard of proof for sexual assault complaints on campus. The primary argument is that being found to have sexually assaulted a fellow student, regardless of the penalty, is extremely stigmatizing and can effectively end a young student's career. Therefore, critics argue, the burden of proof ought to be higher than a preponderance of the evidence, just as it is in other cases.
One problem with this argument, however, is that it proves too much. In virtually any civil case that a plaintiff brings against a defendant for an intentional tort that also violates the criminal law, a finding for the plaintiff will likely generate the kind of stigma associated with a conviction for the offense. For instance, if Plaintiff's estate sues Defendant for the wrongful death of Plaintiff resulting from Defendant's having intentionally stabbed Plaintiff to death, then a finding for Plaintiff's estate will certainly carry a great deal of stigma. Indeed, upon hearing about the verdict, many people would regard Defendant as a murderer, notwithstanding the fact that there has been no literal murder conviction but only a finding of wrongful death in a civil case.
Nonetheless, the burden of proof in such a civil case (as well as in other similarly serious civil tort cases) remains preponderance of the evidence. O.J. Simpson, for example, though he was acquitted of the murder of his ex-wife, Nicole Brown, and her friend, Ron Goldman, was found liable for wrongful death in a civil action by Ron Goldman's father, Fred Goldman. One explanation for the different verdicts was the fact that the burden of proof is so much greater in a criminal case.
Beyond the simple fact that burdens differ for civil cases -- even when the conduct is actually criminal too -- there is a reason for the different burdens in the two kinds of cases. Criminal defendants are subject to incarceration in a jail or prison, whereas civil defendants do not suffer this sort of grave deprivation of liberty at the hands of the State. While it may be "better that ten guilty persons escape than that one innocent suffers," it does not follow that it is is better that 10 guilty people be insulated from any kind of financial or other civil accountability for their actions than that one innocent person be required to pay for a harm he did not commit. Why not? Consider the downside of erroneously rejecting a complainant's case in a campus rape situation.
When a true complainant loses her case against an alleged attacker, there is in fact a tremendous cost. The finding of "not guilty" is very stigmatizing to the complaining witness -- particularly if such a finding implies an embrace of the idea that the witness's accusation was a lie, which it will in many sexual assault cases. Furthermore, the erroneous finding of "innocence" leaves the true victim having to cope with her attacker's "vindication" by the system. And when the complaining witness and the accused are both college students, then the victim will have to live with having her attacker in close proximity on campus, where he can instill fear in her, humiliate her, and just as surely ruin her life by his mere presence as she could ruin his with a finding of guilt.
The sexual assault victim whose claim is erroneously rejected might indeed be motivated to leave school for her own mental health, given the toll that living near one's rapist will take on her. And when the failure to find her assailant guilty is a function of the "clear and convincing evidence" standard, then that result -- her effective expulsion from the school -- would be directly attributable to the campus code and its defendant-generous standard of proof.
I think our tendency is to assume that the only costly outcome in litigation is a false finding of guilt, but that is not the case. And when the consequences of finding guilt are less extreme than jail or prison, as they are in a campus setting, it is legitimate to conclude that the standard of proof ought to be a preponderance, so that the odds of getting it wrong in favor of the defendant are only slightly greater than the odds of getting it wrong in favor of the plaintiff, just as they would be in a typical civil case for an intentional tort.
One could, of course, quarrel with this state of affairs and demand that all intentional torts be subject to a higher standard of proof. But one must acknowledge in doing so that this would require a substantial departure from existing law. Barring such a departure, it is no longer plausible to argue that there is anything uniquely unfair about a preponderance standard in campus sexual assault cases, which are fundamentally civil in the range of available consequences.
Why, though, should the standard be different for sexual assault cases compared to others? One answer is that it needn't be. If uniformity is a priority, there is nothing to stop a college from judging all campus code violations by a preponderance standard. If, on the other hand, a school chooses to keep preponderance for only sexual violations, that choice would be legitimate too. As we can ironically see from the very people complaining about the reforms at issue, people -- and thus potential fact finders -- take a singularly skeptical and suspicious view of rape complaints. Given such skepticism, it might be necessary to have a less demanding standard of proof in these cases.
When people are differentially reluctant to believe credible testimony by a rape victim, a promise to protect women (and men) from sexual assault on campus may require a standard of proof that accommodates this reluctance. A preponderance standard may make it possible to take action against those who threaten the security and equality of all students seeking a college education, and that is not only a worthy objective but, as I have explained, a legitimate means of doing so as well.