Beginning with a directive from the Obama administration, many college campuses began changing how they handle student rape cases. Obama’s education department, using Title IX as a pretext, pushed schools to implement what is called the “preponderance of evidence” standard for students accused of rape, rather than the “beyond a reasonable doubt” standard that exists in criminal courts.
The preponderance of evidence standard has been described as “50.01 percent sure” that one is guilty, which should illustrate the potential problems with this as a standard in cases with such high stakes. Yet schools felt justified due to the concern over campus rape.
However, now a group of trial lawyers have decided to weigh in on the controversy, and they do not agree with the schools in the least:
For the past six years, the Department of Education’s Office for Civil Rights (OCR) has threatened to revoke federal funding from colleges that don’t use the “preponderance of evidence” standard, which requires only 50.01 certainty that a student committed rape.
That is too low for the American College of Trial Lawyers (ACTL), an invitation-only body that requires members to have at least 15 years of trial law experience.
In a report highlighting failures of due process in Title IX investigations, the group calls for use of the “clear and convincing” standard, which is approximately 75 percent certainty or “substantially more likely than not to be true.” It was used by universities including Princeton before OCR’s warnings.
Unfortunately, some believe that ACTL’s recommendations don’t go far enough.
However, the current standard deprives students accused of these heinous crimes of little things like the right to be accompanied by counsel or to cross-examine witnesses. There’s literally no way these should be tolerable in anything resembling a court, especially when so much is at stake. Unfortunately, some groups point out that being “accompanied by counsel” doesn’t actually mean the counsel can actually do anything during such hearings.
While the preponderance of evidence standard is apparently the norm in civil cases, the stakes aren’t remotely the same. Students expelled as rapists have a great deal of difficulty in getting into other schools, all of which eye them with suspicion at the very least. This can be devastating for a young person who did nothing wrong.
Despite some misgivings about ACTL’s recommendations, it’s still a good sign that a group of attorneys — people who work with the legal system full time rather than dealing with it as a side bit within academia — can see the problems inherent in the system and have decided to speak up. Let’s just hope it does some good.