Defending People

I don’t much care what stan­dard Stan­ford Uni­ver­sity uses to decide whether to expel stu­dents accused of sex­ual assault. The issue doesn’t get my blood pump­ing. If Stan­ford chooses “a pre­pon­der­ance of the evi­dence” and other schools fol­low a higher stan­dard (“clear and con­vinc­ing evi­dence,” or even “beyond a rea­son­able doubt”), poten­tial Stan­ford stu­dents are free to decide whether they want to attend a Hys­ter­i­fas­cist People’s Utopia, and go some­where more congenial.

But accord­ing to the U.S. Gov­ern­ment Stan­ford can’t choose any other stan­dard, and nei­ther can any other col­lege that accepts fed­eral Title IX money. The Depart­ment of Education’s “Dear Col­league Let­ter” says that, under Title IX, “a school’s griev­ance pro­ce­dures must use the pre­pon­der­ance of the evi­dence stan­dard to resolve com­plaints of sex dis­crim­i­na­tion.” Sex dis­crim­i­na­tion, says the DOE, includes sex­ual violence.*

So any col­lege receiv­ing fed­eral money has to use the preponderance-of-the-evidence stan­dard to resolve a com­plaint of sex­ual violence.

If a pri­vate col­lege decided to lower the stan­dard for proof of a sexual-assault alle­ga­tion, the U.S. Con­sti­tu­tion would not be impli­cated. When the fed­eral gov­ern­ment tells pri­vate col­leges how to han­dle such alle­ga­tions, I think the Con­sti­tu­tion kicks in: if the Gov­ern­ment tells pri­vate col­leges to deprive stu­dents of their places with­out due process and the col­leges do so, they are state actors. Due process doesn’t require proof beyond a rea­son­able doubt except in a crim­i­nal case, but expul­sion from col­lege might be high enough stakes to trig­ger a higher stan­dard, under the Due Process Clause, than a mere pre­pon­der­ance of the evidence.

So at the behest of the Depart­ment of Edu­ca­tion Stan­ford, by pres­i­den­tial fiat, recently low­ered the stan­dard of proof in dis­ci­pli­nary cases from “beyond a rea­son­able doubt” to “by a pre­pon­der­ance of the evi­dence.” But not in all dis­ci­pli­nary cases, of course; just in those that involve alle­ga­tions of sex­ual mis­con­duct. (In fact, the school changed the stan­dard mid-trial. PS “per­sua­sive and log­i­cal” peo­ple are abusers. Still think “hys­ter­i­fas­cist” is overblown?)

For­tu­nately for Stanford’s stu­dents, Stanford’s stu­dent asso­ci­a­tion, the ASSU, has a con­sti­tu­tion that guar­an­tees an accused stu­dent the right “to be con­sid­ered inno­cent until proven guilty beyond a rea­son­able doubt.”

Unfor­tu­nately, even more than the United States Con­sti­tu­tion, the ASSU Con­sti­tu­tion yields to the Government’s claimed expe­di­ency. Because, the gov­ern­ment says, “our nation’s young stu­dents suf­fer from acts of sex­ual vio­lence early and the like­li­hood that they will be assaulted by the time they grad­u­ate is sig­nif­i­cant,” the stan­dard of proof for alle­ga­tions of sex­ual assault must be reduced to “more likely than not.” Needs must. QED.

Stan­ford senior Viviana Arcia, “ASSU Chair of Women’s Issues,” lauds the low­er­ing of the stan­dard of proof in Op-Ed: Stan­dard of Proof; and “would strongly encour­age the incom­ing ASSU Exec­u­tive and ASSU Sen­ate to make the low­er­ing of the ASSU Constitution’s stan­dard of proof to ‘Pre­pon­der­ance of the Evi­dence’ a pri­or­ity, to be effec­tive as soon as pos­si­ble,” but Ms. Arcia is demon­stra­bly an igno­ra­mus:

We also brought up the issue of how our high stan­dard dif­fered from those used in domes­tic vio­lence courts. In these cases, courts use a stan­dard of “Pre­pon­der­ance of the Evi­dence,” or about a 51 per­cent chance that the assault or abuse occurred. And in these cases, peo­ple are often at risk of prison sen­tences. How­ever, at Stan­ford, the most that can hap­pen is expul­sion from the Uni­ver­sity, not nearly the same pun­ish­ment. As such, our for­mer sys­tem of “Beyond a Rea­son­able Doubt” was wholly inap­pro­pri­ate when con­sid­er­ing how actual crim­i­nal courts pros­e­cute sex­ual assault and rela­tion­ship abuse.

The only way to amend the sham con­sti­tu­tion is with a two-thirds vote of the stu­dent body. I’ll try to fol­low that vote—most Stan­ford stu­dents may not be igno­ra­muses; they might, like my read­ers, know that the U.S. Con­sti­tu­tion requires proof beyond a rea­son­able doubt in any crim­i­nal case, even if the case involves domes­tic vio­lence alle­ga­tions, so that even “domes­tic vio­lence courts” use that stan­dard if they are “actual crim­i­nal courts.”

Stan­ford Law grad Daniel Bar­tow gets it. In his Let­ter to the Edi­tor: Bur­den of Proof he crit­i­cizes the Stan­ford president’s deci­sion:

That the Uni­ver­sity would adopt a stan­dard typ­i­cally used when the only stakes are mon­e­tary to adju­di­cate whether some­one should be edu­cated within its walls speaks vol­umes about the value the Uni­ver­sity places on the edu­ca­tion it provides.

The low stan­dard both­ers me too. Smart peo­ple work hard to get into Stan­ford; they invest lots of money, and I imag­ine that many of them work hard, once they are there. Los­ing all of that shouldn’t be as sim­ple as com­ing in sec­ond in a swear­ing match—especially when the swear­ing match fol­lows rules like, “an abuser will feel vic­tim­ized while the sur­vivor will feel confused.”

But what both­ers me more than the low­ered stan­dard of proof is the loss of the pre­sump­tion of inno­cence. I’m not talk­ing about the de facto pre­sump­tion of guilt when a woman says a crime has been com­mit­ted and a man says it hasn’t and there is no other evi­dence. I’m talk­ing about the pre­sump­tion of guilt that must be indulged before a dif­fer­ent set of rules can be applied to some­one charged with sex­ual assault than to the same per­son charged with a finan­cial (for exam­ple) crime.

Title IX says that no per­son may be denied the ben­e­fits of edu­ca­tion because of his or her sex. The rea­son­ing behind the low­ered stan­dard of proof is, as near as I can fig­ure, this:

• When a per­son is sex­u­ally assaulted by a fel­low stu­dent and the assailant is not pun­ished, the vic­tim is denied the ben­e­fits of education;
• Most sexual-assault vic­tims are assaulted because they are women;
• There­fore when a per­son is sex­u­ally assaulted by a fel­low stu­dent and the assailant is not pun­ished, the vic­tim is denied the ben­e­fits of edu­ca­tion because of her sex.

The fol­low­ing is equally true:

• When a per­son is falsely accused of and dis­ci­plined for sex­ual assault, the vic­tim is denied the beneifts of education;
• Most peo­ple falsely accused of and dis­ci­plined for sex­ual assault are accused because they are men;
• There­fore when a per­son is falsely accused of and dis­ci­plined for sex­ual assault, he is denied the ben­e­fits of edu­ca­tion because of his sex.

What fol­lows each chain of rea­son­ing is the same: …so to com­ply with Title IX, we must do some­thing.

But the two prob­lems sug­gest oppo­site solu­tions: the first, that dis­ci­pli­nary con­vic­tions be made eas­ier; the sec­ond, that they be made more dif­fi­cult. Any change to the sys­tem that improves the like­li­hood of pun­ish­ment for sex­ual assault also increases the like­li­hood of false con­vic­tion (see, e.g., low­er­ing the stan­dard of proof). So either solu­tion vio­lates Title IX.

So what’s a con­sci­en­tious (by which I mean, “not bound by post­mod­ern ortho­doxy”) school to do (aside from the obvi­ous “call Jeff Fisher and get his opinion”)?

If we assume that a per­son accused of sex­ual assault didn’t do it, it makes sense to keep the stan­dard of proof high; if we assume that a per­son accused of sex­ual assault did it, it makes sense to lower the bar.** We could make our assump­tion depen­dent on the like­li­hood you assess of either con­di­tion, and adjust it based on the con­se­quences,*** but what we are doing is choos­ing to either treat guilty peo­ple as though they are inno­cent, or treat inno­cent peo­ple as though they are guilty.

One of those is the Amer­i­can way, based on hun­dreds of years of com­mon law. The other is not. Which is appar­ently why Peter McDon­ald thinks that the low­ered stan­dard of proof is a good thing. In Why Do You Hate Jus­tice, Stan­ford? he writes:

the jour­ney toward mak­ing a just soci­ety is a slow and messy process….

…For sex­ual assault vic­tims that aren’t blonde-haired, blue-eyed, and still had their hymen in tact [sic], the system’s kind of set up against them. But none of that mat­ters because “INNOCENT UNTIL PROVEN GUILTY. INNOCENT UNTIL PROVEN GUILTY.” I’m pretty sure the peo­ple who devel­oped that con­cept never had to worry about being the vic­tim of sex­ual assault. Even less likely had they thought about the dif­fi­cul­ties of try­ing to bring such a case to court. Most writ­ings and the­o­ries about law were just a bunch of old rich white dudes argu­ing over prop­erty, in a time when women were still con­sid­ered prop­erty. That’s right, get ready kids cuz I’m about to drop it, our entire mod­ern West­ern con­cep­tion of jus­tice is a prod­uct of phallogocentrism.

I don’t say this to fun­da­men­tally reject the jus­tice sys­tem, but to remind Mr. Bar­ton and the angry com­menters below Arcia’s op-ed of the prob­lems with treat­ing any doc­trine made by humans as infal­li­ble. We all love the Con­sti­tu­tion and think it’s the most just doc­u­ment on the planet, but for the major­ity of the 19th cen­tury, the Con­sti­tu­tion was used as the top defense for pre­serv­ing slav­ery. Most peo­ple knew slav­ery was bad and even more wanted to get rid of it, but it was pro­tected by the Con­sti­tu­tion. The nation’s hands were tied. It had to keep slav­ery legal. The Con­sti­tu­tion can’t be wrong, it’s the Con­sti­tu­tion. It took 4 years of civil war before our nation could finally rec­og­nize that the Con­sti­tu­tion was in fact wrong and thus needed to be changed (I’m pretty sure there are some Tea Party artards out there who have no prob­lem with how this chap­ter of Amer­i­can his­tory played out).

It’s the same prin­ci­ple here with the Stan­dard of Proof. Thank­fully, acad­e­mia is always open to self-analysis and chang­ing broad struc­tures, like the Office of Judi­cial Affairs, even if it’s unpop­u­lar to do so. I mean, yeah, it may sound like you’re a freedom-hating angry fem­i­nist to attack the idea of prov­ing guilt beyond a rea­son­able doubt, but William Lloyd Gar­ri­son was branded a lunatic America-hating insur­rec­tion­ist when he advo­cated for the abo­li­tion of slav­ery and for full racial equal­ity. Ulti­mately, if the system’s bro­ken, you got to change it.

The old Stan­dard of Proof was not work­ing, it needed to be changed. If the new Stan­dard of Proof both­ers you, there’s an easy solu­tion: don’t sex­u­ally assault peo­ple. Then you won’t have to deal with it.

There you have it: the beyond-a-reasonable-doubt stan­dard was like slav­ery, because giv­ing every­one the same pro­tec­tion is like treat­ing giv­ing some peo­ple less pro­tec­tion than oth­ers. And Peter McDon­ald is like William Lloyd Gar­ri­son. And if you don’t want to be falsely accused of sex­u­ally assault­ing peo­ple, don’t sex­u­ally assault peo­ple. And the founders were all just argu­ing over prop­erty. And we’d be closer to a just soci­ety if the gov­ern­ment could more eas­ily pun­ish peo­ple. And… and… and…

Is it Swift­ian bril­liance, or is it proof pos­i­tive that stu­pid peo­ple, if they work hard, can get into Stan­ford too?

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*Query: is same-sex sex­ual vio­lence “sex dis­crim­i­na­tion”? What about sex­ual vio­lence by some­one who doesn’t pre­fer either sex?

**We could do both, so that the accuser whose alle­ga­tion can­not be proven by a pre­pon­der­ance of the evi­dence gets dis­ci­plined for mak­ing a false charge. It makes as much sense as anything.

***This move by the DOE actu­ally has peo­ple argu­ing about which is worse: being sex­u­ally assaulted or being expelled from col­lege. The only thing sav­ing the argu­ment from utter per­ver­sity is the fact that the DOE’s def­i­n­i­tion of sex­ual assault includes “sex while intox­i­cated”; I’m going to go out on a limb here and say that get­ting expelled from col­lege is gen­er­ally worse than a drunken hookup.

(H/T Jen­nifer Abel.)

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This entry was posted by Mark Bennett on Monday, July 25th, 2011 at 6:10 pm and is filed under Banality of Evil. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.