Wednesday, October 29, 2014

"Yes Means Yes" and Preponderance of the Evidence

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.


KC Johnson said...

It seems misleading to compare the current college systems to the civil system simply because colleges are now compelled (by statute in CA, by OCR mandate elsewhere) to use the preponderance of evidence standard in sexual assault cases.

Unlike in a civil suit, at most colleges an accused student can't have an attorney represent him during the disciplinary hearing. At many (including Cornell and Harvard) even the attorney-less student can't cross-examine his accuser. College disciplinary proceedings don't have mandatory discovery. Many allow hearsay; none can compel testimony under oath.

The question is why colleges should be forced to adopt one element of the civil system (preponderance of evidnce) that makes a finding of culpability more likely, but none of the protections afforded to the subject of a civil suit.

Unknown said...

I disagree with a key piece of reasoning in this article. If it is "better that ten guilty persons escape than that one innocent suffers," and I think it is, that principle applies regardless of the form of suffering, be it imprisonment or "be[ing] required to pay for a harm [One] did not commit".

Additionally, the "Consider the downside of erroneously rejecting a complainant's case in a campus rape situation" argument could be equally applied to cases where a Child claims to have been raped by a Parent. Yet, We still require a burden of beyond a reasonable doubt in order to obtain a conviction.

Furthermore, finding a Defendant as "not guilty" is not the same as finding that same Defendant "innocent", as evidenced by the large numbers of People believing OJ Simpson committed murdered even though He was found "not guilty". All a "not guilty" verdict means is the government did not prove its case and does not mean the defense proved the opposite.

None of the above means, of course, the status quo must be maintained when it comes to rape allegations. A simple change of simply requiring the complaining party to present evidence of sex, combined with then placing the burden on the Accused to show the sex was consensual, would dramatically change the dynamic of such cases without weakening proof standards and would actually make treatment of sexual assault claims more like other claims. For example, if My Neighbor accuses Me of stealing Her jewelry and I am found to be in possession of said jewelry, the burden is on Me to show I had permission to have said items in My possession. The motivation for such is the reasonable presumption an Accuser not giving permission to such possession would level such an accusation. However, when it comes to sexual assault claims, We do not follow such a pattern; instead, We require the Accuser to prove not only did sexual activity occur but consent was withheld, which is a higher burden on the Aggrieved than We thinking fitting to place on Anyone Else.

I do have other issues with the law, such as the fact it permits consent to be withdrawn "at any time", which means, based on the plain text of the statute, consent could be withdrawn years after the fact. The fact no limits exist on the basis for such a withdrawal, and I am not saying there should be, means if 2 Students have sex the first semester of Freshman year, 1 of the 2 could decide to file a complaint the last semester of Senior year just because the Complainant was in a bad mood that day. While, obviously, such a scenario is contrived, this "years later" scenario is not prohibited by the statute. However, these issues are a separate discussion.

Unknown said...

By the way, how would the Students at Duke University fared under such college policies?

Joseph Simmons said...

KC hits the nail on the head in saying it is misleading to compare college systems with the civil system.

In particular, I found this paragraph problematic:

"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."

If one wants to bring a civil complaint they will typically hire a lawyer, be willing to put their own reputation, time, and money publicly on the line.

In a college disciplinary case, an accuser only need make a complaint. The concern for stigma is surely present for the accused no matter the standard of proof, but the argument is not to make it impossible for valid complaints to be brought!

I think you misapprehend the argument concerning stigma. If we require relatively little proof for a accusations that fall under an increasingly broad umbrella of sexual assault, the opportunity for wrongfully stigmatizing innocent students (particularly by expelling them from school) increases greatly. The concern here is for innocence, not merely stigmatizing anyone who is accused. This is a debate about fairness and due process when very serious accusations are levelled.

You give short shrift to the particular vulnerability of accused students in this situation - that a non-legal proceeding with no guarantees of fairness has the potential to bring their educational track to a grinding halt.

Michael C. Dorf said...

With due respect, the objection raised by KC Johnson and echoed by Joseph Simmons strikes me as a non sequitur. If the procedures in college disciplinary proceedings are unfair--and I tend to agree that the inability to be represented by a lawyer or to cross-examine witnesses is problematic when there are high stakes--then those procedures should be changed. But it makes little sense to trade off the burden of persuasion against these other procedural protections simply because each can make it harder to find liability. They serve different functions. Prof. Colb's argument addresses the burden of persuasion only.

Meanwhile, Unknown conflates civil and criminal cases in part of his comment. Other parts are sensible and still others simply bizarre, such as the suggestion that a law permitting withdrawal of consent at any time would ever be construed to mean that consent could be withdrawn after the fact. "Any time" quite obviously refers to any time during the relevant sexual encounter.

Joe said...

"I tend to agree that the inability to be represented by a lawyer or to cross-examine witnesses is problematic when there are high stakes"

I appreciate this comment. There was a discussion at Concurring Opinions a few weeks back on proper procedures in such cases & the person involved drew a line at providing counsel. But, for some poorer students, this could very well might mean no counsel. And, given the infamy of this allegation alone, some special safeguards should be supplied.

As to Unknown's comment, the withdrawal at "any time" surely means during or before the act itself. The "years later" is pretty clearly so nonsensical to be a misreading of the law. Like Prof. Dorf, I think that's a case of over-literal w/o context.

Also, "complaining party to present evidence of sex" -- probable cause would already require some evidence of sex. The law changes the level of consent necessary but there still has to be some sex act in either case.

Anyway, the law sounds like a sensible precautionary principle as Amanda Marcotte noted elsewhere. Yes, it will likely in a few cases stop behavior that the parties agree to, but there is enough risk of error to warrant that.

The same general principle arises in racial discrimination. The Constitution might not ban "x" but it is so tied to illegal "y" that the government has the power and legitimate right to ban it.

Anyway, I do think certain safeguards are important in sexual assault cases in particular even if some lower standard of proof is provided given it is not a criminal prosecution and to safeguard equality and well being at colleges.

Joseph Simmons said...

I think the burden of persuasion must be addressed in the context of the realities of such a trial. I appreciate the academic side of the argument and I agree we should not have to trade burdens for protections. But nor should we justify a more lax standard of proof where a trial does not have the basic guarantees of fairness. We might talk about those later, or we might not. The concern from the oft-cited critics is generally a wholistic concern, as I express here.

A proponderence of the evidence standard is not inherently problematic. Under the right conditions, it seems appropriate. The standard would seem less appropriate in civil trials if there were no access to a lawyer, no opportunity to be heard or call witnesses, etc. I would want to put a greater burden on an accuser when an accused has a lesser chance to defend himself. Not because this is a necessary or desirable "trade," but because we are apparently picking and choosing to only adjust one aspect.

Prof. Colb suggests that there is a reluctance to believe credible testimony by a rape victim that may justify "a standard of proof that accommodates this reluctance."

I think the opposite would be true, that such a serious accusation would not be made lightly. (Needless to add that this doesn't make every such accusation true.) And if, as Prof. Colb anticipates, so could other university officials anticipate that an acquited student might "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."

On that background, I don't see a jusitifcation for lessening the burden of proof. And all of this leaves out the "yes means yes" part of the law.

Paul Scott said...

I think the issue is the overlap between social norms and the rules. Right now the "yes means yes" system is just not how people initiate or continue sexual encounters. We are certainly not socialized to constantly checking on permission during a sexual encounter and mostly are not socialized to affirmatively check for consent when initiating it.

I think this socialization is largely a product of a prudish social norm and I think getting people socialized to a "yes means yes" manner of dealing with sexual encounters will do a great deal of good for our society even ignoring the benefits gained from minimizing unwanted sexual encounters.

Only about half of men and women entering college have had sex, but by the time they leave college 85-90% (depending on choice of reference) have. So you have a situation where a huge number of Americans will have there first sexual encounter under a "yes means yes" environment. Under those circumstances, I do not think it is unreasonable to be concerned that a large number of encounters will be in violation of "yes means yes" the majority of which will, in fact, be fully consensual (and thus no complaint will be filed even though both partners were likely in violation of the policy). I become more concerned as well, when you add in the fact that, although unlawful, many college students have their first encounter with alcohol or at least their first encounter with an environment where significant intoxication is not only not a faux pas but instead is a norm.

On balance, I think I am in support of the the change. But I am given some pause by the increased greater chance of being unintentionally in violation of the policy.

"No means no" is unambiguous. "No means no" certainly results in greater unwanted sexual encounters, but the sexual actors almost always know if they are in violation of policy - and, in fact, almost all "no means no" violations will be a crime.

I see merit in both systems and am concerned with the application of "yes means yes" over the next decade. I support it mostly because I think it is a better social norm than what we have now.

KC Johnson said...

In response to Prof. Dorf, and given that the post itself repeatedly makes a comparison to civil litigation to justify its argument, I don't see how it's a non sequitur to observe that using preponderance of evidence in civil litigation has little relevance to the changes in the burden of proof at most Ivy schools, given the enormous differences between a campus disciplinary tribunal and civil litigation.

If colleges want to adopt civil litigation procedures--which admittedly would require legislation to find a way to give college disciplinary panels subpoena power--I think that would be a much fairer system than what most schools (including Cornell) have today. But I don't see anything in this post arguing that colleges should move toward a civil litigation model as a whole.

Greg said...

I want to start out by saying that I'm very much pro "yes means yes" standards, and have tried to instil that as the correct standard to use for my children. I'm willing to assume that this standard will be interpreted to include reasonable non-verbal forms of expressing consent, so I'm not going to harp on the potential problems of that.

I hope (though am not confident) that the right to withdraw consent "at any time" will be interpreted reasonably such that a statement of "I withdraw consent" is interpreted to have a reasonable amount of time for the other person to react.

I do have concerns about the preponderance of evidence standard being used at a college disciplinary system. Ultimately, a lot of these WILL come down to "he said, she said" (which professor Colb derides) because there just isn't anyone else witness to the facts. This is in cases where they both say "we had sex" but she says "no, I didn't consent" and he says "yes, she did." In that case there is real risk that the decision reflects more on the people making the decision or their personal opinions of the individuals than on the facts of the case. For instance, it appears that at most colleges, the people currently making the decisions are biased towards protecting the defendant. Based on her verdict column, it appears that professor Colb would be biased towards punishing the defendant.

While I don't like the idea of keeping true rapists on college campuses, shouldn't the scales at least slightly be biased towards protecting the accused? (i.e. the clear and convincing evidence standard?) In a borderline case, the preponderance of evidence standard seems likely to severely punish some students for cases that are really due to certain forms of legitimate miscommunication, based primarily on the biases of those making the decision at that particular campus.

There's one thing I want to add about professor Colb's apparent standard from her verdict column, that really concerns me. I hope I simply misunderstood it. Professor Colb implies that the accused has a lot to lose from making a false accusation, and thus should be assumed to be telling the truth. She then implies that the defendant has every reason to lie, and thus their testimony should be assumed to be useless (they would say they obtained consent whether they did or not.) If we're really going to make those assumptions and not going to require qualified lawyers to cross-examine the accuser, then what's the point of even having the trial?

Greg said...

My last post had a potentially confusing sentence about teaching my children. What I meant to say is that I try to instill "yes means yes" as the appropriate standard for my children to use when they eventually become sexually active.

Joe said...

preponderance of evidence = something more than equal likelihood, something akin to "more likely than not."

Isn't that at least "slightly" biased toward the defendant, so to speak?

A lower test does lead to more concerns about "severely punishing" some mistakenly. I think it therefore helpful to include the procedural safeguards that Prof. Dorf highlights. This would provide a safety mechanism for the accused.

I do think there is some reasonable grounds for disagreement here. It underlines that there are complications here without being disrespectful to the problem of sexual violence.

Hans Bader said...

The California law is quite misleading, dangerous, and intrusive, because it defines conduct that laypeople would view as consensual and wanted as being non-consensual merely because of the lack of a "clear" "agreement." When my wife and daughter hug me without any advance discussion or agreement, that is consensual as I see it, but maybe not under the California law, since I haven't agreed to it before it occurs.

Moreover, under the California law, such an "agreement" may be required not just for sex (where that is feasible) but also for intimate touching (where agreement in advance is not feasible, since such touching is welcomed after it occurs, not agreed to in advance). The law applies to "sexual activity," which, as Ramesh Ponnuru notes at Bloomberg News, has been interpreted by some colleges to cover mere kissing and touching, not just sex. But the law is so poorly written that it does not even define the term "sexual activity."

Such a potential application is very disturbing, because no ordinary person "agrees" -- verbally or non-verbally -- on whether a particular touching of intimate areas will occur. No one says, "may I touch your breast" or "may I massage your cl___" before doing so, and "clear" non-verbal "agreement" on such touching is not possible in advance of the touching. By contrast, sex itself is a mutual activity, and unless your partner just lies there like a log, their active participation in enabling penetration is probably clear non-verbal "affirmative consent."

If the California law applies beyond sex to all intimate touching and kissing -- as its most enthusiastic supporters advocate -- then it will, in the words of one of the law's own supporters, require "state-mandated dirty talk" at many, many stages of a sexual encounter.

Requiring "clear" "agreement" for each touching is just not feasible, unless you wish to interrupt making out or foreplay with an endless succession of verbal exchanges amounting to a gabfest, that would kill the mood for most people and defeat the purpose.

Such an "affirmative consent" requirement would humiliate and embarrass shy people, since no shy man will be able to bring himself to say things like "may I massage your cl---" and no shy woman will want to hear them. My wife certainly would not like to have to reach "clear" "agreement," verbal or not, during our sexual encounters. For her, like most women, "no means no" is a far more comfortable, and respectful, way of proceeding.

Mandating such sexual chatter between a couple even when they do not wish to engage in it raises serious freedom-from-compelled-speech issues, needlessly invades students' privacy, and violates their freedom of intimate association (see Wilson v. Taylor).

The law violates civil liberties, and it has been criticized by the Foundation for Individual Rights in Education and former ACLU Board member Wendy Kaminer, and was opposed by the Los Angeles Times and Orange County Register; Batya Ungar-Sargon at the New Republic; Bloomberg News' Megan McArdle; New York Magazine's Jonathan Chait; and many other commentators and columnists.

Evin Terna said...
This comment has been removed by a blog administrator.
Peter Gerdes said...

You have no reason to interpret people's reaction as some kind of special doubt about the validity of sexual assaults. Indeed, the very reason people object to the preponderance of the evidence standard is that they think people are too likely to be biased in favor of the victim.

I mean consider a case where a man claims not to have slept with a woman (someone else did it) but the woman mistakenly (she was very inebriated) believed it was the accused. The evidence on witness memory show this kind of thing can happen all the time.

So the girl says "Yes this was the guy who took me into my room. I'm sure he assaulted me." (no cross here to determine if she means she saw him or is merely concluding that fact).

Guy says, "Yes, I took her back to her room and left her there but nothing else."

Now both people might be equally honest sincere people but humans respond to strong emotion and the victim has strong emotions while someone falsely accused has much fewer (especially if they believe in the system) since they weren't involved in any attack.

The problem now with the preponderance of the evidence standard is that now any he-said she-said situation plus the little thumb on the scale because the jury doesn't want to do nothing or suggest it's not a big deal means that the burden will actually be on the defense.


Having said that this isn't really what I think is wrong with the bill. It's the fact that yes means yes is in drastic conflict with cultural norms (both men and women avoid open consent at first so they can back off without embarrassment or undue pressure) and that conflict creates very troubling effects. In particular it creates a distaste for the rule and further discourages victims to come forward.

amine lahragui said...

thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

aminos lahragui said...

thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل فوائد الحلبة فوائد الزنجبيل فوائد الرمان فوائد زيت السمسم علاج البواسير فوائد البصل فوائد اليانسون فوائد الكركم فوائد الزعتر علامات الحمل

Baron Cole said...

The author's comparison to the O. J. Simpson case is misplaced. The Goldman's victory did not impose enduring institutional penalties on O. J. Simpson. He was not forbidden to enter the city of Los Angeles, his formal record was not flagged in a manner that would have effectively barred him from any particular profession. The sort of enduring institutional penalties which campus disciplinary procedures are empowered to inflict much more closely resemble civil commitment than a typical civil tort. The "Clear and Convincing" standard is therefore much more appropriate. A student found guilty of sexual assault in a campus disciplinary proceeding will suffer lifetime penalties far removed from having the members of his mother's bridge club think that he is a bad person.

Jeffrey Deutsch said...

Much like in Alice in Wonderland, with "sentence first, verdict afterwards," Professor Colb seems to have decided that we need more convictions (the college term is "findings of responsibility"), and then built her case for a forced preponderance of the evidence standard around her desired conclusion.

Yes, civil trials are commonly decided under the preponderance of the evidence standard. However, some civil trials and administrative hearings are decided based on clear and convincing evidence -- for example, that is the standard in the District of Columbia when suing for defamation of character or fraud, offenses that carry a higher than normal stigma.

And of course criminal trials are generally decided by proof beyond a reasonable doubt.

So why does Professor Colb feel that civil trials are the best model? Especially when the bulk of civil cases -- unlike criminal ones -- don't involve intentional harm let alone crimes?

Or rather, she prefers one aspect of civil trials -- the standard of proof. I don't see Professor Colb advocating for rights like cross-examination, subpoenas, lawyers (who can actively participate, not just sit there and occasionally whisper or text back and forth with their clients), professional judges or independent judges and juries.

(For that matter, as Professor Colb herself pointed out O. J. Simpson's victims' families got some justice in a civil court -- not a college tribunal. Bearing in mind that courts can not only award damages but also issue injunctions and restraining orders, why doesn't Professor Colb urge victims to either go to law enforcement or sue their attackers?)

It also bears noting that at college, either a finding of responsibility by a tribunal or a "summary procedure" (it's called different things at different colleges, but basically the respondent agrees to accept punishment and forgoes an actual hearing) carries a serious stigma. As does either a criminal conviction or a guilty plea. However, a civil settlement generally carries little or no stigma, and also typically includes the proviso that the defendant is not admitting any wrongdoing!

So in terms of reputation and lifelong effects, criminal proceedings are a better model.

As Professor Colb has also noted, many colleges previously used clear and convincing standard voluntarily. Well, yes -- in fact, most colleges and universities, not being Federally owned, have long had the right to set their own policies. Institutional autonomy (and even private property rights for private schools) -- which Professor Colb doesn't even consider worth mentioning -- are very good things, and not something to be tossed aside lightly just to get more accused students found responsible and punished.

I'll be the first to defend any college's right to freely -- without State or Federal coercion -- choose a preponderance of the evidence standard. At the same time, there are good reasons why many colleges chose clear and convincing evidence as recently as within the past five years.

Namely, especially these days, getting kicked out of college for a sex offense follows you around for the rest of your life. Good luck transferring into any other college -- even community college -- even if you're not already an upperclassman. And without a Bachelor's degree, but with a big fat "EXPELLED FOR SEXUAL ASSAULT," good luck getting and keeping a job above, say, Wal-Mart cashier. (Great college stories to share on dates too, huh?)

Indeed, it's not quite as bad as actually being convicted of sexual assault and doing time. That's why no one is suggesting that colleges be required to use what Professor Colb correctly pointed out is the standard for criminal trials, namely beyond a reasonable doubt.

On the other hand, it's way worse than, say, being forced to pay $10,000 for your neighbor's medical bills, time off work and pain and suffering after your dog bit her. (Even if it's not covered by liability insurance.)

Jeffrey Deutsch said...

Whereas for any victim of sexual assault or rape, most of the damage has already been done. Punishment for the bad guy would certainly give some relief, but wouldn't come close to compensating for the trauma, fear and the like.

As for separating the complainant and respondent, that can happen even without any finding of responsibility, or even after a finding of no responsibility. I assume very few respondents claiming to be innocent would even want to live or study in the exact same places as their respective accusers, so some separation protocols (eg, Mary changes both of the classes she's shared with John, while John moves to a different residence hall for the rest of the academic year, and they agree never to enter the same room) could probably be negotiated.

All that having been said, sexual assault and rape, done mainly by predators who don't belong in civilized society let alone college, is one thing. Sexual harassment, done mainly by folks who can learn a lesson and do better in the future, is quite another. If we save the expulsions and ultra-long suspensions for the former, and focus on educational sanctions for the latter, then colleges may want to use clear and convincing evidence for the former (since mistaken guilty verdicts are that much worse) and preponderance of the evidence for the latter.

Finally, Professor Colb -- who in fact teaches Constitutional criminal procedure -- seems to have missed a couple of fundamental aspects of due process.

For one thing, when we find a respondent "not responsible," that in no way implies anything about the complainant. In any regime of innocent until proven guilty, it simply means that the complainant did not succeed in proving it likely enough that the respondent did it. For example, if the respondent is "acquitted" of rape, it does not follow that the complainant lied, or even that it's likely that she (or he) lied.

Both sides are innocent until proven their own respective hearings. If and when the original complainant is ever charged with falsely accusing the original respondent, she (or he) will and should get the same protections and the same benefit of the doubt that he (or she) did in the original proceeding.

And of course both sides can, in their respective turns as respondent, both be found not responsible. That just means we're not sure enough who did wrong so out of respect for everyone's rights we won't stigmatize or punish either side. We can still separate them, as described above.

Otherwise, we'd have absurdities like the first one to the courthouse (or the Dean of Students' Office) automatically getting the benefit of the doubt.

Last, but not least:

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.

Well, people are especially worried about credibility with rape cases for a reason. Obviously, they much more often turn on one person's word over another's.

Also, they rest on not only consent but also how it was communicated and whether one could have legitimately thought there was consent. Which in turn often hinges on context, including the complainant's and defendant's particular relationship and its history. Rape and sexual assault cases are triply private: Not only about what two people did in private, but also about what they knew and thought, and even what they should have known and thought.

I'm not sure the best response is to dismiss our fellow citizens' concerns. (Let alone in Orwellian fashion by describing it as "accommodating" said concerns!)