Rape – now provable by the lowest burden of proof available.

By J. DeVoy

Last year, the Education Department’s Office of Civl rights issued a now-infamous “Dear Colleague” letter to universities across the country, reminding them of their Title IX obligations to students in disciplinary proceedings.  That letter’s consequences are now being seen at the University of North Carolina, which has enacted a two-tiered disciplinary system.  Infractions of UNC’s 100+ year-old honor code will be handled by its long-standing adjudicative process, and require the accused to be found guilty beyond a reasonable doubt.  As this standard applies in other criminal proceedings, it seems reasonable.

But, where sexual abuse is alleged, the accused needs to only be found guilty by a preponderance of the evidence – the lowest civil burden of truth.  If it is simply more likely than not that the accused committed sexual assault, up to an including rape, he or she is considered guilty in the university’s eyes.

That is hardly the end of it, though.  While the final UNC system for sexual assault charges is awaiting finality, what the ultimate system will entail is bleak.  The procedures UNC administrators found too onerous on the accuser victim were already slanted starkly against the accused:

 • “Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”

• If the accuser has simultaneously filed a criminal charge, “the accused student may be accompanied to the hearing by a licensed attorney who may confer with the student during the hearing so long as the attorney does not address the hearing panel, those hearing the appeal, or other parties or witnesses, and so long as the attorney does not delay or disrupt the proceeding.” (emphasis added)

• In either case, the right of the accused student to present evidence to clear his name is severely limited by a clause that prohibits presentation of evidence that “does not otherwise infringe the rights of other students.” (source)

These provisions are somehow unfair to accusers?  One can hardly imagine the procedures, or lack thereof, that will take their place.

Even if UNC maintains its current procedures and creates a separate body to adjudicate sexual assault charges on a preponderance-of-the-evidence standard, the outcome is clear an unmistakable: An allegation of sexual impropriety will result in university discipline.  Given the severity of sexual assault, such discipline is likely to entail expulsion – and career ruination even if it does not.

Seeing the liability that rushing to believe accusers has caused universities in the past, and that flimsy due process protections have harmed them before, it is surprising to see UNC (and doubtless other schools) moving in this direction.  And while there are many things wrong with higher education that keep men away – skyrocketing tuition untethered to any measure of value, diminishing job prospects, the dilution of bachelors and even graduate degrees due to for-profit diploma mills ranging from the University of Phoenix Online to Florida Coastal University that confer degrees upon even the most marginally qualified students  – turning higher education into a gauntlet where a man can have his life ruined on only the allegation of a classmate, evaluated by the lowest standard of proof and without any input from actual attorneys, is unlikely to reverse the gender skew of college attendance and graduation.

5 Responses to Rape – now provable by the lowest burden of proof available.

  1. Why would a university be investigating and “trying” serious crime at all? If rape has occurred, it should be reported to the police, and if the accused is convicted, the school can then disassociate with the student.

    Leave “college court” to roommate disputes and violations of college bylaws, not felonies.

  2. Rajan says:

    Universities aren’t required to do adopt such 2 tiered structures, but are unofficially coerced by the Dept of Education. There is an implied threat of “do what we say or there will be consequences”.

  3. Great blog nice n useful information , it is very helpful for me , I realy appreciate thanks for sharing. I would like to read more information thanks.

  4. Nicole says:

    Considering that 1/4 women attending College or a post-secondary institution will be sexually assaulted, and that less than 8% of rape accusations are false, while some studies have shown that 75%-90% of rapes go unreported, I don’t think this is as bad a thing as you make it out to be. Whenever a woman makes an accusation of sexual assault there is a HUGE amount of backlash. The one person I know who pressed charges of sexual assault has told me that she will just let the rapist walk in the future, as the whole process was so traumatizing and humiliating for her.

    The legal process for reporting a rape is much more involved and traumatizing than reporting it to the University. So women who might be afraid to press charges have a chance to speak up in a more friendly environment.

    I hardly think addressing the gender skew at Universities is more important than protecting woman against sexual assault?

    (And maybe we could fix the gender skew by giving women equal pay, instead of forcing them to get more education than their male peers in order to receive the same pay?)


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