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Tilting the Scales on Sexual Violence

New federal rules on sexual assault fail to take the issue seriously.

By Duke Cheston

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May 20, 2012

The University of North Carolina at Chapel Hill has an unusual student disciplinary system. Although other schools sometimes involve students in disciplinary proceedings, UNC’s Honor Court is entirely student-run and student-led. Students even prosecute students for sexual assault—but that may soon change following the issuance of new federal regulations.

In April 2011, the Obama administration’s Office of Civil Rights (OCR) sent a “Dear Colleague” letter to colleges, universities, and schools across the country to explain newly created federal rules on dealing with sexual violence. A major change was to lower the burden of proof for colleges to punish students for sexual assault, which ranges from attempted forced kissing up to and including rape.

These new rules were touted as a way of promoting “enhanced equity.” But, in reality, the new rules rather inequitably reduce the protections of those who are accused (mostly males).

The new rules ostensibly come from a reinterpretation of Title IX of the Education Amendments of 1972, the law that prohibits colleges that receive federal funds from discriminating based on genderbest known for requiring women’s sports to be treated equally to men’s. Arguing that sexual assault is a form of gender discrimination, the office decreed a handful of new regulations.

The most aggressive new interpretation was a mandate that colleges and universities lower the burden of proof when deciding cases of assault. The bar was dropped to the lowest possible standard, a “preponderance of evidence.” In other words, a college disciplinary committee merely needs to decide that an accused individual is more likely to have committed a crime than not.  Those deciding the case must be only 50.1 percent sure of guilt. That standard is lower than the one used in criminal cases, which is “beyond a reasonable doubt,” and generally thought of in numeric terms as 98 percent sure.  

In general, civil cases in the public judicial system use the “preponderance of evidence” standard. Those cases, however, have more protections for the accused than do the proceedings on college campuses. The accuser can be deposed under oath, and both sides must present their supporting evidence. In campus-adjudicated cases, on the other hand, as David French noted on Phi Beta Cons, there is no “jury of your peers [to help] insulate the case from on-campus hysteria and ideologically-dictated outcomes.”

The “preponderance” standard has long been used in discrimination cases in federal courts and on college campuses, but sexual assault had not previously been defined as a case of discrimination. UNC-Chapel Hill’s Honor Court, for instance, used the “beyond a reasonable doubt” measure for sexual misconduct cases (see section IV.A.7 of the Instrument of Student Judicial Governance). But now, as a result of the Dear Colleague letter, it will have to weaken the standard.

While these lower protections for the accused won’t result in criminal convictions, they may very well result in innocent students’ expulsion or suspension from school—a black mark following them for the rest of their lives. Civil libertarians are outraged at the Dear Colleague letter, with some even denouncing the new rules as “Kafka-esque.”

A number of defenders of the lower standards, such as the Association of Title IX Administrators, have dismissed concerns about false convictions. “The likelihood of wrong conviction is virtually zero,” a UNC student involved with the school’s Honor Court told me. But that claim doesn’t hold up to scrutiny. If investigations really resulted in evidence that was so conclusive—then why not keep the standard as it is? Why is lowering the standard necessary?

And we know that false accusations occur. Information about on-campus sexual violence is incomplete, so it’s hard to say how many accusations are false, but we know some are. In a 2010 article in the journal Violence Against Women, University of Massachusetts-Boston psychologist David Lisak looked at 136 cases of alleged rape at an unidentified “major Northeastern university.” He concluded that 6 percent were demonstrably false. Another 45 percent of allegations never made it to prosecution due to insufficient evidence or the withdrawal of the complaint.

Given the likelihood that some accusations will be false, it is wrong to put 20-year-old students with minimal training in charge of deciding who has committed such a serious crime. But that has been the case at many schools like UNC-Chapel Hill.

At UNC-Chapel Hill, many students are uncomfortable with the current system.

I talked to one UNC student who described herself as a rape victim. She said that she regretted going to the Honor Court with her case. I did not have a problem telling my story, but knowing that the Honor Court did not devote time to [the] case is what hurt the most.”  She said that “most students see that the honor court is inadequate.” She does not think that an “untrained 20-year-old” should decide if someone has been a victim of sexual assault.

Complaints about the current system and the federal “Dear Colleague” letter have combined to lead UNC to rework the way it deals with sexual assault cases. The publication Inside Higher Ed cited UNC as one of the first schools to respond to the new federal rules. UNC chancellor Holden Thorp told the Daily Tar Heel, “The best way to comply with [the new policies] is to redo the whole thing.” Administrators have yet to release the details of the new system, but early indications suggest the new disciplinary committee will involve students, older adults drawn from faculty and administrators, and more complete training.

A reexamination of the way universities deal with sexual assault is needed, and UNC is to be commended if new changes lead to a more just and effective system. But disciplinary procedures are not the only way colleges have an impact on sexual assault on campus.

If the university is serious about the way it handles sexual assault it should take some actions to prevent it. College policies currently encourage conditions that lead to accusation of rape. At most public and secular private schools, colleges give students little supervision, provide plenty of free contraception (something even strictly religious schools are now required to supply, thanks to the Obama administration), lots of free time, and speakers to tell them about how great promiscuity is. Students bring in plenty of alcohol and other drugs, blurring to the vanishing point the difference between what is legal and illegal. The devil does the rest.

And now, apparently missing the connection between higher education policies and their consequences, colleges and the federal government are trying to put a band-aid on the problem of sexual assault through tyrannical regulations like those promulgated in the Dear Colleague letter. These regulations may prevent a few cases of sexual violence by instilling fear in those who would otherwise engage in questionable activity, but only at the price of a travesty of justice. To make real progress on preventing sexual assault without sacrificing justice, policy makers and colleges and universities will have to take the issue more fundamentally seriously, something too many of them have yet to do.

 


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