Colleges deal with many sexual assault cases through their own judicial process. Such tribunals require a lower burden of proof, which has raised concerns, including those Morgan writes about today.
The issue arose this year in the Georgia General Assembly, where state Rep. Earl Ehrhart, R-Powder Springs, sponsored a bill to address what he said were false accusations that were still investigated and even punished by Georgia college officials. "I want to treat these crimes with the seriousness they deserve, " Ehrhart told the AJC. "But I am not going to sacrifice due process to get there." Sexual assault victims rallied against the bill, which failed.
With that background, here is Morgan's column.
By J. Tom Morgan
The U.S. Department of Education is considering whether to change the burden of proof in what is commonly referred to as Title IX campus sexual assault cases from “preponderance of the evidence” to “clear and convincing evidence.”
Prior to 2011, college campuses were able to decide which burden of proof to use and many campuses required the clear and convincing evidence standard in deciding whether to find a person guilty of sexual assault. However, the department issued an edict in 2011 that all campuses must adhere to the much lower standard of proof, preponderance of the evidence, in determining guilt for sexual assault. Preponderance of the evidence standard is the lowest standard of proof in legal proceedings.
Beyond a reasonable doubt is the highest standard and is what is required in criminal convictions. Clear and convincing evidence standard of proof is greater than the preponderance of the evidence standard, but lower than that required in criminal cases.
The standard of proof is important is because of the devastating consequences for a student who is found guilty of sexual assault by a college tribunal. When a student is found guilty of sexual assault, the student will be expelled and the expulsion will remain with the student for the remainder of his or her life. Entry into another college is almost impossible with an expulsion, and prospective employers will also demand a copy of all college transcripts which will include the expulsion for sexual assault.
I have represented several students in Title IX hearings. While almost all the accusations of sexual assault are against male students, I was also involved in a same-sex alleged sexual assault involving two women. When the standard of proof is so weak as the preponderance of the evidence, all that appears necessary for a finding of guilt is an accusation by the accused.
In one case, both parties were too intoxicated to remember whether or not they had sex. The only evidence of possible sexual contact was they woke up together unclothed. The alleged victim said that she did not know whether they had sex, but if they did have sex she did not consent to it. The hearing panel found this was sufficient to meet the preponderance of the evidence standard, and our client was expelled by a local university.
There is no question sexual assault is a reality on college campuses. Colleges and universities must do a better job of educating male and female students regarding sexual assault prevention. However, before a finding of guilt of sexual assault by a hearing panel, the evidence against the accused must meet a standard commiserate with the impact of the finding, and that standard is clear and convincing evidence.