Betsy DeVos changed the standard of evidence required in cases where there are allegations of rape on campus. The change will make it more difficult to sustain a claim of rape.
The most controversial part of the Obama-era guidance was that the outcome of investigations should rely on the preponderance of the evidence in each case to determine guilt. Critics said that was too low a standard, and DeVos has said that some innocent men were falsely accused under the standard.
Victims will have a harder time meeting the new standard because there are seldom witnesses to rape.
Common in civil law, the preponderance standard is lower than the “clear and convincing evidence” threshold that had been in use at some schools. Victim advocates viewed the April 2011 letter as a milestone in efforts to get schools to heed the longstanding problem of campus sexual assault, punish offenders and prevent violence.
DeVos has made it clear for several weeks, as has her Acting Assistant Secretary for Civil Rights Candace Jackson (who opposes affirmative action and feminism), that they believe that many men have been unfairly accused of rape. They have expressed sympathy for those accused of rape, not their accusers.
Diane Ravitch's blog 
“They have expressed sympathy for those accused of rape, not their accusers.”
Sorry, this is the wrong take. You can have sympathy for the accusers without railroading the accused. It’s become an ideology on the left that anyone who accuses a man of rape is correct and the guy is almost assuredly guilty. This is a morally wrong position to take.
I wanted to think badly of DeVos when I first heard of her sticking her fingers into Title IX issues, but there may be some justification with this one. Many liberals are on board with this change.
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The public record clearly demonstrates the views and stance of Candace Jackson, upon which the DoE rule basis its interpretation. How does that reconcile with the stance you have taken?
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So by what standard do you think a university can expel a student accused of raping someone? Only if that student is convicted in court? Do you realize that would mean that almost no campus rapists would ever be expelled? Fewer than 1% of all rapes result in conviction. What do you suggest we do for the other 99% of rape victims? “Sorry. Sucks to be you, honey.”?
Again, “due process” for getting kicked out of a place you don’t have a right to be (only a privilege) is entirely different than due process in a criminal proceeding when your right of freedom is at stake.
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Well said, Dienne: ” ‘due process’ for getting kicked out of a place you don’t have a right to be (only a privilege) is entirely different than due process in a criminal proceeding when your right of freedom is at stake.”
However I suspect Obama rules need to be tweaked a bit to ensure ‘due [campus] process’ applies equally to accused as accuser, based on the Amherst case.
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Greg,
This is not a liberal vs. conservative issue. Is it ok to rape a woman as long as there are no witnesses?
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I’m in complete agreement with you. The “witness” standard as DeVos and Jackson interpret it is far to simplistic and potentially sadistic. Interesting piece in today’s NYT that tries to steer this debate back on to rational ground:
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“it is OK as long as there are no witnesses” appears to be the operating philosophy for pretty much everything these days.
It is certainly the philosophy of big wall street bankers and even of Superbowl winning quarterbacks.
“As long as you destroy your phone (emails, paper trail, etc) you will be OK”
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Poet,
Hillary Clinton resents your allusion to her in your last paragraph.
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Why does it become a liberal agenda when you disagree with what is right? EVERY SINGLE ALLEGATION OF RAPE should be sent to the police – not handled by a kangaroo court.
If my child were raped, I wouldn’t ask about the rapist’s political leaning. Oh my, did the man who raped you vote republican or democrat, because we need to know his mindset. If he’s a republican we can’t cut him any slack but if he is a democrat liberal we must rethink his guilt.
Shame on you for making it about lefties. Meanwhile, you are likely just trolling this site.
Betsy’s friends, and their children, likely get away with murder …. they have the financial means and don’t want to sully Biff’s reputation. When you get raped, let me know how much you care about the politics.
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She just mirrors the President. Both are a disgrace and should be removed from office!
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I think that women who have been raped have for too long been assumed to “have asked of it.”
I am all for due process, but think that schools have made an effort to cover up campus rape. That is also true for police.
Rape kits are slow walked through a system weighted to favor the theory, affirmed by Trump’s demeaning behavior toward women, that “boys will be boys.”
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There needs to be a time limit on testing rape kits. Police departments should not have thousands of rape kits awaiting processing. It is injustice to the victim. It also allows the perpetrator to be free to rape other women in the interim.
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Nevertheless, it doesn’t help this cause if innocents are convicted via faulty investigations (as happened in Amhert case & who knows how many more as some 180 cases are on appeal), that just supports DeVos position that ‘clear & convincing’ [criminal std] should apply– tho I prefer the civil ‘preponderance of evidence’ std where the sanction is simply suspension/ expulsion. Suggests that Obama rules need tweaking to ensure campus procedures protect accused rights.
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No “innocents” can be “convicted” by a university. Only expelled. Again, a university education is a privilege, not a right.
And the Obama rule is preponderance of the evidence with expulsion as the sanction.
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Rape is an easy crime to hide in fraternity houses, as well. Frat members build a wall of protection around their “brothers” that is impenetrable for women & rape investigators.
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I meant to add I completely disagree with the laws VA & NYS have passed that require transcripts to be “red-lettered” with a statement that the student violated campus sexual assault policy.
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Here we go again. A few days ago you insisted to me that you believe in due process for everyone. But you once again post a deeply misleading headline and commentary designed to inflame your far Left fan base. Another online commenter put this issue into useful perspective:
“This is not a simple liberal-conservative issue. Many on the Left have found the preponderance of the evidence standard too low, and many have suggested that schools are ill-equipped to deal with such complicated cases, which should instead be sent to the police and courts. The latter are not perfect, but they are better equipped than the faculty members who sit on university panels.”
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Agree. When a crime is committed on the streets, the law is applied. The same should be true of a campus. Faculty members are not equipped to deal with alleged or proven criminal acts. I saw how screwed up things could become when a high school attempted to deal with something that should have been an immediate call to law enforcement. Instead of falling on our respective swords of ideology we ought to pull together on principle.
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Attending a university is not a right and is not subject to the same criminal due process proceedings. Universities have a right – in fact, a responsibility – to ensure that the character of their students reflects the character of their university. Very, very few rapes ever result in conviction because the criminal standards are so high. That does not mean that universities are mandated to allow those predators to roam their campuses. They have the discretion – again, the responsibility – to expel students who violate their conduct standards even if no criminal statute is violated. I’d seriously doubt any student has ever been criminally prosecuted for plagiarizing their thesis, but you can bet your backside it will result in expulsion. It should be the same for sexual assaults that can’t be or simply aren’t convicted in the criminal system.
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“College Onher Code”
Plagiarize
Expel!!
Splay her thighs
Oh, well
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Writing as one who was present during the legislative process and remembers clearly when the Violence Against Women Act became law, one of the issues we addressed was the inadequacy of the then existing legal system to deal with the social stigma, legal inadiqucies of existing law, and and generally accepted misconceptions about women who, for lack of a better term, either “willingly” or “provocatively” made themselves victims of rape and sexual misconduct that turns victims de facto into at least 50% guilty parties, not that the legal system has been proven over and over again, ad nauseam, is the inability of the legal system to fit its definitions of “guilt” and “innocence” within the confines of then-exiting jurisprudence. That was why the Violence Against Women Act was needed in the first place. How would recommend to remedy the actual fact that women are assaulted and raped, especially within the confines of college campuses? How should one decide when there is not an audience to the crime? And should women who charge that sexual assault and/or rape has been committed against them fear that their names (and reputations be compromised? Also, what are the remedies if men are false accused of sexual assault and/or rape.
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John,
If you have a daughter and she was raped by a fellow student, and there were no witnesses, would you stand by your statement that only people on the “far left” are concerned about campus rape? Do you have a daughter?
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Diane,
For many years a comment like this would have been beneath you, but misrepresenting other people’s views is now a daily habit for you. I have never said that only people on the far Left are concerned about campus rape. There are many principled people across the political spectrum who favor both strong penalties for rapists and due process for the accused. Due process is important not only to protect against false accusations, but to lessen the possibility that the judicial system convicts the wrong man while letting the actual perpetrator go free.
It’s irrelevant to this discussion whether I have a daughter or not; my personal family situation has no bearing on the principles involved here. But I do in fact have a daughter who will be a college freshman next year at a four year college. I’m uneasy about the college sex scene these days, both the number of sexual assaults that occur and also the regard for casual sex as just an animal act that has no emotional consequences. If my daughter claimed that she had been sexually assaulted, I would believe her, unless her story wasn’t at all plausible. But I stand on principle for due process rights for everyone.
Enough airy generalities and PC platitudes: let’s cut to the bottom line. You claim you support due process rights for accused rapists in college administrative hearings. Do you favor the accused having a right to an attorney being present at the hearings? Should the accused have the right to challenge the accuser’s accusation by cross-examination? Should an accuser be automatically believed? Should the accused be presumed guilty and have to prove his innocence? Do you favor the preponderance of evidence standard for guilt, what lawyers term as 50% plus a feather? Or do you favor the standard of guilt as clear and convincing evidence, that is still a much weaker standard of evidence than beyond a reasonable doubt?
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John,
I support due process in all criminal and civil actions. Period.
In the case of rape, the reality is that there are almost never witnesses. It is a he said, she said case. Her word is never enough. There must be some evidence, but not an eye witness or a photo of the act.
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John, you ask this question:
“Should the accused have the right to challenge the accuser’s accusation by cross-examination?”
This is not about someone going to jail. It is about them being expelled.
So what I would ask you is this:
If a student is accused of cheating, should he have the right to challenge the professor’s accusation by cross examination?
If a student is accused of vandalism, should he have the right to challenge the professor’s accusation by cross examination?
If a student is accused of plagiarism, should we have the right to challenge the accuser’s accusation by cross-examination?
And let’s not stop at colleges! How about private high schools? They are not allowed to expel any students UNLESS the student has the right to cross examine any faculty member or student making an accusation against him.
Is that what you believe?
Or do you insist that rapists should have special privileges that cheaters and bullies and plagiarists and kids who talk too much in class don’t have?
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Logical thinking requires one to draw distinctions between different circumstances and to avoid false analogies. Your examples of misconduct – cheating, vandalism, and plagiarism – are far easier to prove than a he said/she said rape allegation. Cheating is a clearcut, easily provable action. Vandalism charges won’t be brought without solid, tangible proof. Plagiarism is an open and shut case that needs no eyewitnesses – just compare the documents submitted by a student to the sources from which those documents are drawn. Absent compelling forensic evidence or an eyewitness, rape is often hard to prove, especially if the accused and the accuser know each other.
Your brand of logic would be laughed out of any law school or courtroom in America. And once again, commenters on this blog regard being expelled from college as merely an inconvenience, even for wrongly accused men.
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So what should happen with Brad in my scenario below, John? Should the university expel him or not?
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If there was just one accusation against Brad, and no other proof – he stays. If numerous other women have credible accusations, he goes. And even if there isn’t conclusive evidence of rape, if he broke other college rules – e.g. bringing alcohol into a dorm – he pays the price.
My oldest nephew has been a prosecutor for 11 years in a county with a 10,000+ student university. He has investigated and prosecuted many sex crime cases. He told me last week that rape accusations are usually the hardest types of cases to prove beyond a reasonable doubt, and often don’t come close even to the clear and convincing evidence standard. Almost every police department of 50+ officers has at least one detective who works just in sex crime cases; those detectives, fortunately, are these days quite often women. But my nephew said that even the best police and prosecutors find it impossible to convince many alleged victims to testify. There are many reasons for this reluctance, including the fear of going through the whole legal process and cross-examination, and embarrassment at having put herself in a vulnerable position against the advice of parents and others.
DNA evidence has helped to convict truly guilty rapists, and free wrongly convicted men. Almost all of the wrongly convicted suffered their misfortune because the jury believed the alleged victim. There’s no getting around the challenges of prosecuting rape. Humans are fallible, and there often just isn’t sufficient evidence to prove anything.
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Typical. One woman’s testimony isn’t credible.
Anyway, most of your post is not really responsive. The whole point is rape is nearly impossible to prove beyond a reasonable doubt. That’s why so few cases make it to conviction. Again, so what should a university do? Only expel if they have a conviction, meaning that 99+% of accused rapists would stay? In my scenario below, I made it clear that Stacy is credible, while Brad is a jerk who likes to brag about his prowess. So even if Stacy is the only woman to complain about him, it’s still pretty clear that she’s telling the truth. Why should she have to face him in the dorm and in class (or else move out of the dorm and drop the class) when he is the guilty party?
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John Webster,
“Your examples of misconduct – cheating, vandalism, and plagiarism – are far easier to prove than a he said/she said rape allegation. Cheating is a clearcut, easily provable action.”
No, it isn’t. You just THINK it is because you take a professor’s word over a student’s. Or you don’t assume someone saying they witnessed something would outright lie. Like you believe women who call rape are likely to do.
“The professor said I had crib notes but I didn’t”.
“I didn’t copy off someone else’s exam. Do you have video? The professor is lying”.
“Whoever said they saw me doing xxx is lying. I want my lawyer to cross-examine him under oath”
“Perhaps I did disrupt the class, but that’s only because the professor ASKED me to earlier in the day to do an experiment. He told me he LIKES when the class is disrupted. I demand the right to cross examine him about every part of his personal life to see if he is as honest as he claims.”
The fact is that it is not unusual in any college addiction for someone’s word to be accepted without the accused given the right to cross-examine. Your claim that there is always “proof” unlike in a rape case is simply not true.
You want to give a special privilege to men expelled after an investigation into his raping someone that you don’t give to students expelled after an investigation into cheating and every other infraction.
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Scenario: Stacy and Brad live in the same dorm and are in the same biology class. Stacy invites Brad to her room for a study session before the big test. Brad comes over and Stacy flops on her bed – her favorite study position. They go over quizzes and review sheets and everything seems to be pretty normal until Brad leans over and kisses Stacy. Stacy is momentarily stunned – she never saw that coming. Brad takes her lack of response as an invitation and starts caressing her, then undressing her. Stacy recovers herself a bit. She doesn’t feel that way about Brad. She pushes him away and says, “What are you doing? This isn’t right. I don’t want this.” Brad overpowers her and proceeds with his caressing and undressing and eventually has sex with her. Stacy is so overwhelmed she does not fight back.
Legally speaking is that rape? I hope you said yes, because it certainly is. But what are the chances this case is ever going to reach a criminal conviction? Somewhere between slim and fat. Most prosecutors aren’t even going to take the case – no evidence, his word vs. her word – certainly not evidence beyond a reasonable doubt.
So you are the university official tasked with dealing with this situation. As you investigate the situation it becomes clear to you that Stacy is telling the truth and Brad is, at best, a cad (who, in fact, seems rather proud of prowess). In fact, other women come forward with similar stories about Brad, but also with no criminal conviction. What do you do? “Well, gee, Stacy (and others), we’re really sorry, but there’s nothing we can do. I guess you’ll just have to move out of the dorm and drop your biology class.”? I mean, after all, we certainly wouldn’t want to “ruin” poor innocent Brad. He has such a promising career ahead of him, y’know.
Because that’s exactly the way things did work until the Obama regulations (and still do work far too often).
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Interesting scenario, Dienne. I was thinking that maybe Stacy should have invited Brad to study in a coffee shop or other public area on campus. When a woman invites a man to her room, a man may have a different view of what is going to happen. I’m not saying this is right, but it’s the way of the world.
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Just to follow up. I’m not blaming the victim here, but young people often have difficulty setting boundaries and taking into account how their actions will be perceived by others. In a perfect world, a woman should be able to invite a man to her room or house for an innocent reason without a man expecting something else. But, we’re not there yet.
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Thank you for proving my point. She was raped, but it was her fault for inviting him to her room. She probably shouldn’t have flopped on her bed either. And that skirt, y’know….
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Dienne, of course it was rape. She did nothing immoral or wrong but unintentionally put herself in a dangerous position. If this were your daughter, would you not tell her that it’s unwise to invite men who you don’t know well to your room to study. I think that college campuses present different problems for young women. Women may think that their room is a safe space to meet with others. It’s not. It’s personal space and should be treated that way.
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Want to know how old-fashioned I am? When I went to college, it was all-female. The dorms were all-female. Men were not allowed to enter our rooms except for three visiting hours on Sundays and our doors had to be open. Four feet on the ground.
I am fine with coed institutions but I don’t believe in co-ed dorms or co-ed bathrooms.
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And you know what? Rapists are gonna rape. Period. Nuns have been raped. Women wearing full on Burkas covered from head to toe, are raped. An 80 year old NJ woman recently headed to church at 6:30 am was sexually assaulted. Rapists gonna rape – just waiting for their opportunity. Perhaps Brad would have raped Stacy in the lot behind the coffee shop, or after walking her to her dorm. Rape is an angry act of opportunity.
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Mamie Krupczak Allegretti,
You have a very ugly view of men. Because even if they do have a different view of what is going to happen, once the woman says no, they are obligated to stop.
That’s what students are taught upon entering university. No means no. Not maybe. So you stop. You don’t try again because you aren’t sure if the woman “changed her mind”.
And if you can’t follow those rules, you get treated like all rule-breakers. Like the ones who refuse to stop blasting their loud music all night long and claim it is their “right”. Like the ones who cheat on homework or tests and claim it is their “right”.
It’s their right to break the rule. And it’s the college’s right to expel them if they do.
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NYC Parent,
Do you lock your doors at night? If so, you have a very ugly view of people.
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Re: ugly views, I don’t know how it’s possible to believe some of the statistics about rape on college campuses and not have an ugly view of men. I’ve seen some reports saying that 25% of all undergraduate women have been raped on campus. The flip side of that statistic is that a disturbingly high percentage of male college students are rapists.
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If 25% of female undergrad students were being raped, what parents would send their daughters to college? The 25% statistic has been debunked many times, and defies common sense.
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John,
I think you have exhausted all you have to say on the subject. Stop repeating yourself.
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I’ve never commented on that statistic before in this thread or any other time on this blog. How can I be repeating myself? BTW, do you believe that 20%-25% statistic?
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When you live in NYC, you lock your door whenever you leave home.
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Mamie,
If I invite a casual acquaintance into my home I don’t expect her to take a piece of jewelry because it happens to be out on the table. I don’t expect her to see my purse and take it because by leaving it out and inviting someone into my home, that meant they should feel free to take anything that is in my home.
If I have small dinner party and one of the guests decides it would be a good idea to trash the walls with graffiti, I don’t say “well I did invite that person to the party so he probably assumed it was find to trash the house.” I am allowed to ask him to leave. And I don’t say “well I did serve him a cocktail, and had one myself, so that was an invitation for him to trash the house.
An invitation into one’s home is not an invitation to steal. It is not an invitation to vandalize. It is not an invitation to rape.
And that is what college students are taught in no uncertain terms. If you can’t follow a rule, you get punished.
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“I’ve seen some reports saying that 25% of all undergraduate women have been raped on campus.”
“I’ve seen reports” doesn’t tell us much. But even assuming the incident of undergraduate women saying they were taped is higher than women who aren’t in college, there is a lot missing here.
Are they saying they were raped by other students?
Are a small number of men responsible for a large number of a rape accusations?
Forcing colleges to come up with a much higher standard of evidence to expel an accused rapist that is different than the standard of evidence they use to expel other students seems like giving special privileges to men accused of rape. Not due process.
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What is the standard of evidence that colleges use to expel students for violating other college rules? What are the procedures that govern those proceedings? Have you looked into this?
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Have you?
The point is that this is not about being prosecuted for a crime. It is about breaking a college rule. No means no.
And it’s not like the Obama administration said “if a woman says it happened, you must believe her”. They just reminded college that this is NOT a trial and demanding the kind of proof that is needed in a trial is not appropriate.
I think you probably agree with me and are being contrary.
Look what happened at Baylor. That is typical. DeVos wants to return to a time when a college administrators just had to say “well, there’s not enough proof and of course we need a lot of evidence so we must ignore the accusation”.
It was an easy cop out. And they did not say that with students accused of other infractions. “We don’t know without a shadow of a doubt that this student did it — look, maybe someone framed him — so sorry, professor, your cheating allegation is ignored.”
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I was never under the spell of the “she had it coming” theory. Frankly, when the world lost its mind when United thugs “roughed up” a passenger and removed him from the plane, Internet trolls were quick to try to establish the doctor’s character and past mis-deeds – but that didn’t change the fact that he was a paying customer and United’s thugs were wrong.
When a girl says no, it means no. When a girl is intoxicated, drugged, or otherwise unable to say no, it still means no. BROCK TURNER is a rapist. Poor Brock. There are sites all over the net defending this pig.
People think differently when it happens to their child; be it the rapist or the rapee.
DeVos and her kind are used to being able to defend their relatives from unsavory allegations; its how its done, D’ahling. Its what they know. OF COURSE she isn’t going to want Biff’s future to go down the toilet because “some girl” wants her due – according to she and her ilk.
Hospital. Police. Period.
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What about this tweak to the scenario:
Stacy and Brad live in the same dorm and are in the same biology class. Stacy invites Brad to her room for a study session before the big test. Brad comes over and Stacy flops on her bed – her favorite study position. They go over quizzes and review sheets and everything seems to be pretty normal until Brad leans over and kisses Stacy. Stacy is momentarily stunned – she never saw that coming. Brad takes her lack of response as an invitation and starts caressing her, then undressing her. Stacy recovers herself a bit. She doesn’t feel that way about Brad. She pushes him away and says, “No, stop
What are you doing? This isn’t right. I don’t want this.” Brad pauses for about 10 seconds.overpowersherandThen Brad proceeds with his caressing and undressing. Stacy is so overwhelmed, she does not say anything and does not physically resist Brad.andeEventually they havehassexwith her. Brad gets dressed and leaves. Stacy vomits in the shower.The next day, Stacy reports this encounter to the university as a rape. In her report, she states that she pushed Brad away and told him to stop, but that Brad physically overpowered her.
So you are the university official tasked with dealing with this situation. As you investigate the situation it becomes clear to you that Stacy is telling the truth and Brad is, at best, a cad (who, in fact, seems rather proud of prowess).
In fact, other women come forward with similar stories about Brad, but also with no criminal conviction. What do you do?LikeLike
Sorry, some of my underlining didn’t come through in that comment.
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Well, except that if Stacy said stop and then does not say anything or physically resist, “they” are not “having sex”. He is “having sex with” her (raping her, in fact). She is not a willing participant in the act.
Your changes are interesting. She clearly said stop. She reported it as rape. Those two factors clarify things for me – they make it much more clear that it was rape.
I like that you took out the other women accusing Brad. So if one lone woman accuses a man of rape, even though you made it more clear that it was rape, I think it makes it less likely that Brad will be expelled. I mean, you can’t trust the word of one lone woman, can you?
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I assumed that in your hypothetical she also reported the encounter as a rape, so I didn’t view that as a change.
I removed the accusations from other women because I wanted to make it a more difficult case. I think you’d agree that accusations of rape are at least marginally more compelling when there are multiple, accompanying accusations from other women.
Point taken re: “they have sex” versus “he has sex with her.” I made that change because I felt “he has sex with her” was essentially just shorthand for “he rapes her,” and I wanted to present a hypothetical where the rape had to be inferred from the factual circumstances. (Otherwise the hypothetical could just be presented as a single line: “Brad rapes Stacey.”)
You didn’t pick up on (or maybe you did but just didn’t respond) the point in the hypothetical where Stacy lies about Brad having overpowered her. If I had to guess, I would guess that you’d find that detail immaterial, because there was a rape regardless of whether Brad overpowered her. Is that right?
If it’s not clear already, I do find my hypothetical to be a difficult case. Of course, in my hypothetical, if I am the university official tasked with handling the case, I would have concluded that Brad overpowered Stacy and raped her, based on Stacy’s story (which in my hypo I find credible, even though it is actually not completely true) and my low opinion of Brad’s character.
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Ah, I overlooked that you took out that he actually overpowered her. Sorry about that. But you’re right that it doesn’t really make a difference because once she said stop, everything after that point was rape. But it does raise an interesting question about her credibility if she lies about that. Hmmm….
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That is why colleges have rules.
The rule on every college campus is No means No. Period. Once you hear no, you stop. Those rules were put in place precisely for exactly the scenario you described FLERP!
Which is why it does not have to be a crime in order to be a expellable offense.
I don’t really understand why Betsy DeVos demands that men accused of sexual assault get special treatment in a college setting that is not given to students accused of other rule breaking.
This isn’t about a legal matter. It is about expelling a student from campus. Because he broke a rule. The rule is “no means no” and if you want to break it just remember that you took that chance and it’s your fault.
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I confess I’m not well-versed in this debate. Is Betsy Devos is demanding that students who violate college rules that “no means no” be given special treatment? I thought this was about changing the evidentiary standard used to determine whether sexual conduct codes were violated.
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FLERP,
It’s impossible to reason with the far Left ideologues here. You’re right: the initial debate was about changing the evidentiary standard for administrative proceedings on college campuses. But most of this blog’s readers want to punish the accused man first and to automatically believe the female accuser. Fortunately, the vast majority of Americans, including most liberals (not Leftists), are fair-minded and reject the implicit man-hating of the pro-star chamber crowd.
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I agree: No means No. But a woman claiming that she said no doesn’t automatically prove that sexual assault occurred. You just don’t want due process for accused men.
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” changing the evidentiary standard used to determine whether sexual conduct codes were violated.”
You mean change it so that it requires more evidence than the evidentiary standard used to determine whether any codes were violated.
As I say, when another person walks into someone else’s dorm room and helps himself to a bunch of food in their refrigerator that doesn’t belong to him, colleges don’t spend a lot of time deciding whether the owners of the food secretly wanted it to be taken by the perp.
They don’t spend a lot of time figuring out whether maybe the owner of the food had said no but really meant yes and the person who took it didn’t really have any obligation not to take it without the owner trying to physically stop him from taking it.
This is NOT a criminal trial. It is being treated like a violation of rules. Which don’t generally demand cross examination of “victims”.
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“This is NOT a criminal trial. It is being treated like a violation of rules. Which don’t generally demand cross examination of ‘victims’”
I’m not sure why you’re bringing up cross examination — I didn’t mention it in my comments here, did it? (On an iPhone, it’s a pain to scroll up and down to confirm that.) But you say that investigations into violations of college rules don’t “generally” demand cross investigations of victims. Are you sure about that? You say “generally,” so I assume you are either aware of some types of investigations that do give the accused the right it question accusers, or you suspect that this is the case with some types of investigations. What kind of investigations are you certain do not permit the accused to question accusers? If a student is accused of violating a rule against cheating, does the student have the right to question any persons who may have made statements that formed the basis of the college’s decision to investigate? Since your argument seems to be be something like “accused rapists on college campuses should be treated like every other student accused of violating a college’s rules,” this seems like a pretty fundamental fact question for you.
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John Webster,
You obviously recognize a kindred spirit in FLERP!
Bravo!!
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FLERP believes in basic fairness and due process. You don’t.
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As I’ve said before, I believe in fairness and due process, but I am not sure what kind of process is due and fair in this context. My uncertainty appears to be where I differ with many of the others here, most of whom seem quite sure of the best way to run this kind of disciplinary proceeding.
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Where you clearly differ from most people here is that at the very least you don’t agree that an accuser has a right to be automatically believed.
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John,
You believe that accused rapists deserve a DIFFERENT due process than students accused of other violations of campus rules.
If the bully walks into a room and takes the pizza after the person said no, that is a campus violation.
It doesn’t have to be proven in a court of law. The administration investigates it. Talks to people. Decides who they believe.
You want accused rapists to have special rights that other students accused of violations don’t have. Why?
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“My uncertainty appears to be where I differ with many of the others here, most of whom seem quite sure of the best way to run this kind of disciplinary proceeding.”
I don’t see a lot of people saying they are quite sure of the best way. However, I am quite sure that Betsy DeVos is not rescinding the rules because there have been a rash of “innocent” men expelled from college with no due process at all after another student accuses them of rape.
Due process doesn’t always work. But I am a big fan — just like I am when it comes to teachers.
But I would certainly wonder if accusations of sexual misconduct against teachers were given special due process that other accusations against teachers did not get.
Why are you assuming that accused rapists were far more likely be innocent and railroaded but students accused of other crimes are not?
The Obama regulations came about because in the past, rapists were given the benefit of the doubt without the kind of proof that wasn’t necessary when students were accused of other misdeeds.
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Why do you assume that I “assume that accused rapists are far more likely to be innocent and railroaded but other students accused of other crimes are not”? Where are you getting that from? Are you confusing me with someone else?
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FLERP!,
Here is the discussion: the Obama administration regulations essentially reminded colleges that the standard of evidence for accusations of sexual misconduct should not be higher than accusations of other rule breaking that students are accused of.
Is there any infraction a student can be accused of that a college investigations which is NOT decided on the “preponderance of evidence” claim? It’s absurd to think that colleges are meeting some high standard of evidence when they expel a student for breaking rules. They aren’t.
DeVos wants to return to a time when the burden to “prove” any wrong-doing by a student is – in practice — as high as it would be in a court of law.
But only for sexual assault. Somehow I suspect if a student punished for a different infraction demanded the university meet that burden of proof before any punishment can be meted out for anything, he’d be laughed off campus. But DeVos seems to believe there are so many men who are the victim of false charges that colleges should have to meet much higher standards to punish a student charged with rape.
She doesn’t expect them to give students accused of other rule-breaking the same special privilege to help make it very difficult for colleges to punish them.
And that isn’t good.
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“Is there any infraction a student can be accused of that a college investigations which is NOT decided on the “preponderance of evidence” claim?”
I don’t know. Do you? Are there? This is along the lines of my other questions. Is it true that no other rule infractions, such as cheating, are adjudicated in processed that provide the accused the ability to question his accuser? When this debate first cropped up on this blog a week or two ago, the focus was largely on the policy reasons why the normal rules about “confronting witnesses” shouldn’t apply to the same degree in rape cases, whether in the criminal context or in the context of college disciplinary proceedings. But that’s not your argument here. Your argument here is that students accused of rape should get no more due process than is given to students accused of other rule infractions. That’s an argument, it has a logic. But I’m curious if the factual underpinning is true. What are the evidentiary standards applied to all other disciplinary proceedings? What are the rules about the accused’s right to question accusers? What rights of appeal are there? Have you looked into this?
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Think about it.
Does a student have the right to cross examine a professor under oath in any judicial proceeding?
The rules were put in place because sexual assault was treated as if the complaining victim had to meet a court of law standard even if it was simply the kind of proceeding that is about any campus behavior that is not necessarily something that would be prosecuted as a crime.
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“Does a student have the right to cross examine a professor under oath in any judicial proceeding?”
My question was whether students have the right to question accusers in other college disciplinary proceedings. Forget about whether the questioning would be “under oath,” and forget about the phrase “judicial proceeding” (because we’re talking about college disciplinary proceedings).
So, again, do students have the right to question accusers in other college disciplinary proceedings? And is it true that every other type of college disciplinary proceeding uses the “preponderance” standard?
You can’t answer these questions just by thinking about it. You have to do some research to know whether these premises are actually true. I haven’t done it, so I don’t know.
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Here’s a start, which came up among the top results in a google search on “college disciplinary procedures.” These are the procedures used at the City University of New York. From this, it appears that CUNY (1) uses “preponderance” across the board in disciplinary proceedings, and (2) allows the accused to “cross-examine” witnesses. (It also gives the accused student a right to have counsel attend the hearing, albeit at the student’s expense.)
Click to access Student_Disciplianry_Procedures.pdf
CUNY may have other wrinkles to its policies that aren’t apparent from this one page. But like I said, it’s a start. I’d be interested to know whether CUNY is unusual or representative among colleges.
“The notice shall contain the following:
A complete and itemized statement of the charge(s) being brought against the student including the rule, bylaw, or regulation he/she is charged with violating, and the possible penalties for such violation.
A statement that the student has the following rights:
(i) to present his/her side of the story;
(ii) to present witnesses and evidence on his/her behalf;
(iii) to cross-examine witnesses presenting evidence against the student;
(iv) to remain silent without assumption of guilt; and
(v) to be represented by legal counsel or an advisor at the student’s expense.
A warning that anything the student says may be used against him/her at a non-college hearing.”
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This could be misinformation, but I believe the Washington Post says that with the Obama regulations, if the evidence is 50/50, it sides with the woman.
If that is true, the scenario you created started at 50/50, but the other women who came forward, would of tipped it over. Wouldn’t it? I guess it is tough to figure out what is 50/50 — probably depends on the school and who is overseeing the investigation. I would hope the school would expel “Brad” in this case.
I’m a strong believer with innocent until proven guilty. I’d rather ten guilty people go free than an innocent person sent to prison. I wouldn’t want a student to get expelled if the professor just believed the student plagiarized without proof — but you made a good point that private colleges don’t have to follow the same policies as criminal standards. You convinced me on that — thanks!
I don’t know if I agree exactly with the Obama regulations but I believe there could be a balance between the two. The dialogue of course should continue.
Has anyone looked into the argument against the statistic that says only 2-8% of accusations are false? The argument states that false accusations must be provably false to be listed as such. That although the statistic might be true, the percentage of truly not knowing either way (she said / he said) is the highest statistic – meaning its impossible to truly know the number. Does anyone know if this argument is true? Maybe it depends on the individual study I guess.
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The Obama standard is “preponderance of the evidence”, which basically means it would take 51% of the evidence to get the student expelled. I’m not sure how that would be measured, since evidence doesn’t come in inches or pounds or liters.
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The police should get involved at the onset, and forget about expelling – prosecution, trial, conviction – or not. That should be the course. Were my child to be raped, I’d be up in arms. I’d never allow the college to handle it; I’d go directly to the police.
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People often say “51%,” but it’s really just “more likely than not, based on the evidence.” I think of the standard as “after having seen the evidence, which way are you leaning?” Whichever way you’re leaning is where the verdict should go. And if you’re not sure which way you’re leaning, there’s no preponderance of the evidence.
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I’d imagine if 100% is beyond a shadow of doubt. Then in your situation Brad would totally get expelled. I mean multiple victims coming forward has got to be considered over 75%…? It’s true — how can they put a percentage on something that is immeasurable? I’m surprised that there wasn’t a handbook defining some of it. Does anyone know if there was any information?
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Of course, DeVoodoo blames the victim. As much as I detest DeVoodoo, she is a victim of her own warped perspectives. Remember she sells SOAP.
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“Devoodoo dolls”
Devoodoo dolls
Are victims too
Even trolls
Are kindness due
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“”Perponderance of Evidence”
Preponderance is out
Perponderance is in
The benefit of doubt
Should alwaysbe with him
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Not incidentally, the preponderance of evidence” standard is not based on amount of evidence. It does not mean “the majority” of the evidence.
Preponderance of evidence means the most convincing and likely truthful of the available evidence.
So there is no need to determine % of evidence.
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The reasoning behind preponderance is that some evidence is more reliable than other evidence so should be weighted more heavily.
For example, just a few pieces of reliable evidence — eg, of sperm and bruises on the victim — are more reliable than just claims one way or other.
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Here’s a typical federal jury instruction on what preponderance of the evidence means:
In this civil case, the [Plaintiff/Defendant] has the burden of proving each essential element of his/her
[claim/counterclaim] by a “preponderance of the evidence.” The party who has the burden must
present the more convincing evidence. To prove an element by a preponderance of the evidence simply
means to prove that something is more likely than not. In other words, in light of the evidence and the
law, do you believe that each element of his/her [claim/counterclaim] is more likely true than not? If so,
you should decide in favor of [Plaintiff/Defendant]. If not, or if the evidence is equally balanced, then
[Plaintiff/Defendant] has not carried his or her burden of proof on that element. Stated another way, a
preponderance of the evidence means the greater weight of the evidence. It refers to the quality and
persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether
a fact, claim or defense has been proven by a preponderance of the evidence, you may consider the
relevant testimony of all witnesses, regardless of who may have called them, all the relevant exhibits
received in evidence, regardless of who may have produces them, and any stipulations the parties may
have entered into.
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FLERP! you are focusing on the wrong things. This is not a legal matter. It is matter of whether the student broke a campus rule.
A 6′ 2″ 275 lb muscular fellow student lives down the hall from a student who is a skinny 5’5″. He comes into that student’s room and says “can I have some of that pizza and soda you just brought?”. The 5’5″ student says No. The much bigger student takes it anyway.
When the large student is called into a judicial hearing after the smaller student complains, he doesn’t get to say “but after the guy said no he didn’t try to overpower me when I decided to take the pizza and soda so I knew that meant he really said yes.”
This is not a court of law. This is about following the rules that a private institution sets.
If you think the guy who took the pizza anyway shouldn’t be punished because you can’t be 100% certain that the weaker student really meant no when he said no, since he didn’t choose to physically try to stop the student, then you are on the side of Betsy DeVos.
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I’m trying to help people understand what the phrase “preponderance of the evidence” means in practice. This is a legal phrase, taken from a legal context, and understanding its meaning in that context is useful. One man’s opinion.
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Perhaps I misunderstand you.
Is your information at all relevant to the main question of whether DeVos’ desire to have a special due process for accused rapists before they can be punished by a college?
Ironically, if any big time college football coach was subject to that kind of “due process” before he punished a player, you wouldn’t hear John Webster whining “but the player deserves due process and should be able to cross examine the coach to make sure he isn’t lying about him”.
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My information (actually, the information is from the Delaware model jury instructions, so I can’t take credit for it) is relevant to the question of what the standard “preponderance of the evidence” means in practice. People were discussing that topic, so I thought my comment might be helpful. I probably should have just kept to myself, I know.
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Look, NYC parent, you’re a Stalinist who opposes due process. Fortunately, you’re still in the minority in our free country. I won’t waste any more time with a fanatic who is impervious to logic. And I’m done with this blog. Like all other blogs dominated by ideologues, I never learn anything from it, other than how crackpot some people are. Ann Coulter, Sean Hannity, Rachel Maddow, and this blog: all peas in a pod.
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Thanks for putting me in same boat with Rachel Maddow. She is brilliant.
No thanks to Ann Coulter and Hannity, who are rightwing ideologues.
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But you mean “in practice” in a court of law.
Do you expect those standards to be met by all educational institutions before punishing students for any infraction?
In the past, an accusation of rape always needed an abhorrently high standard of proof that was not needed for accusations of other infractions. The Obama rules changed that.
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No, I meant “in practice” in the world. “Preponderance of the evidence” is a standard that was developed in the judicial context. When colleges apply that standard in disciplinary proceedings, they don’t just make up their own, completely new interpretations of what the standard means. They will look to how others have explained the standard. Those explanations will either come from judicial sources or will be based on understandings in the judicial context. To bring things full circle, I’ll note that there are cases where federal courts scrutinize the kind of evidentiary standards that colleges use in disciplinary proceedings as part of an inquiry into whether those standards are sufficient to protect the accused’s due process rights. I believe at least one federal court has ruled that a college disciplinary board violated an accused’s rights by using a standard that is less rigorous than the “preponderance” standard. When that college subsequently revised its practices and began using the preponderance standard, surely it did so with reference to what the standard means in a court of law.
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Well thanks for putting me in the Rachel Maddow category : )
You calling her a “crackpot” and lumping her together with Sean Hannity tells me a lot about your need to attack everyone who you disagree with without listening to them.
I’m sorry I don’t meet your high standards like FLERP! does.
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How about Every Single Rape Victim goes straight to the hospital and alert the police? Period.
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Well, because it’s not that simple. For one thing, it can take a while for the victim herself to realize she was raped. In my scenario above, for instance, Stacy herself may think she “caused” it by “leading him on”. Shame and guilt play a large role.
Secondly, even when victims go to the hospital, there may not be evidence. In this case there would presumably be evidence of sex, but all Brad has to do is say she wanted it, it was consensual. instant reasonable doubt.
And, as mentioned above, the police and prosecutors don’t always act on accusations. They don’t always believe the victim. “Yeah, right, honey, it was rape. You just happened to invite him into your room and sprawled on your bed. Uh huh. Sure, sure.” Even if they believe the victim, they will likely realize there is very little evidence. Prosecutors especially are in it to win it – they’re very reluctant to take cases that are less than airtight.
Which brings us back to what is the university supposed to do? Even if the case is prosecuted, it will take years before reaching a verdict. Most likely, the case won’t be prosecuted. So should the university just shrug and say there’s nothing they can do without a conviction? Should Brad be expelled or not?
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Brad is a cad
A slimy lad
Who shan’t be dad
Or college grad
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Why? That would happen if the student was going to be JAILED.
But they aren’t being jailed, they are being expelled — and only after an investigation. In fact, in more cases than not the man accused of rape is not expelled.
This should be treated like other breaking of campus rules if the victim doesn’t press charges.
A drunken student walks into a class and spends the next 20 minutes disrupting a big lecture hall with racist remarks.
The college doesn’t have to report it to the police. That doesn’t mean that they can’t take action for the student breaking their own college rules.
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