The problem of sexual assault on college campuses is a serious one, and the status quo on most campuses is unacceptable, making transgression all too easy for sexual predators. As Robert Carle noted yesterday at Public Discourse, the Department of Education has responded by circulating a “dear friend” letter advocating that campus tribunals considering cases of alleged sexual assault use a weaker standard of proof than has heretofore been the norm. The regulations now being promulgated by the education department do not explicitly require this, but the earlier letter has done its work, and many campuses are adjusting their standard of proof downward.
While the education department’s exasperation with the current state of affairs is one most people share, the suggested remedy of undermining due process is unlikely to help because it introduces a new set of problems. The good news is that there are several alternative reforms—including making irresponsible consumption of alcohol more difficult—that could result in material improvements.
Some commentators have taken exception to colleges and universities even becoming involved in cases of sexual assault. Others assert that residential academic institutions should abolish the presumption of innocence when the charge is sexual assault. Each group is missing something important. To see why, it is worth taking a moment to review the key issues.
Colleges and Sexual Assault
First of all, sexual assault is illegal. Therefore, deterring and punishing it is primarily the responsibility of local law enforcement. That said, colleges and universities are residential environments, so they are rightly concerned with every aspect of student life. Moreover, when students break local laws, it reflects badly on the institution with which they are affiliated. Thus, colleges and universities do have a legitimate interest in questions of physical safety on campus.
Residential academic institutions are not alone in facing issues of this nature. Imagine that the employee of a private accounting firm finds herself accused of embezzlement. Judicial due process in such a case might take months or even years to resolve the question of her guilt, but few firms would retain her. Rather, they would opt to dismiss the accused employee—giving the firm and its clients the benefit of the doubt. Of course, this is unfair to those who are falsely accused, but the company cannot suspend business while the legal system grinds through the case with its customary deliberative speed. Moreover, there may be genuine suspicions that an employee is stealing even when law enforcement does not have sufficient evidence to prosecute. In such situations, firms will frequently terminate the employee; to do otherwise would sometimes be commercial suicide.
A campus community confronted by an arsonist, a rapist, or some other dangerous miscreant must likewise find a solution in real time. The school must take action, even if legal authorities have not taken an active interest or if it may take years to achieve a resolution. Expelling a suspected arsonist or rapist, however, risks lasting harm to the reputation of a falsely accused individual. The stigma of such a serious accusation not only damages the honor of the accused, but it can also permanently impair that person’s ability to earn a living.
To resolve this issue, many schools give the accused due process through a “committee on discipline.” Most colleges and universities have a disciplinary committee that can make decisions relatively quickly so that sexual predators do not continue to overshadow the daily lives of their victims. This procedure aims to prevent predators from remaining a threat to the rest of the campus community and at the same time to provide due process for the accused.
Due Process, Evidential Standards, and the Disciplinary Committee
What does due process mean in the context of a disciplinary committee? It means that the accused are fully informed of the charges against them; that they are provided with an opportunity to confront the evidence against them; that questions formulated by the accused person are put to the accuser; that the accused can present exculpatory evidence; and that the case is decided impartially. Remember, due process exists for the sake of those who are falsely accused.
Whenever there is an accusation, decision-makers confront uncertainty. Because they were not present, adjudicators will never attain full certainty. Yet they must still reach a decision. Thus, any tribunal will apply a standard of proof, and the crux of the education department’s letter is advocating weaker standards of proof in cases of alleged sexual assault.
There are three evidentiary standards that are relevant here: proof “beyond a reasonable doubt,” “clear and convincing evidence,” and a “preponderance of the evidence.” These standards have evolved over centuries of experience in the common law legal system, and they reflect a considerable body of cumulative learning.
To find someone guilty beyond a reasonable doubt requires that the decision-maker thinks the probability that the individual is guilty is at least 0.95 (that is, that the odds are at least 19 to 1 that the individual transgressed). This is the standard applied in criminal cases, and it embodies a presumption of innocence. In civil suits, by contrast, the standard of the “preponderance of the evidence” is applied. The plaintiff needs to show that his complaint is more likely than not to be true—that is, that the probability the defendant transgressed is greater than 50 percent. This is a low standard of proof; it embodies a trivial presumption of innocence. A probability of 0.5000001 that the defendant transgressed is enough to trigger a finding for the plaintiff. This is the standard that the education department has recommended disciplinary committees apply to cases of sexual assault.
Intermediate between the “beyond a reasonable doubt” standard and the “preponderance of the evidence” standard is “clear and convincing evidence,” which roughly corresponds to an 85-percent probability of guilt. This is the standard used by many university disciplinary committees when deciding cases of academic dishonesty and when responding to threats to campus safety such as arson or sexual assault. It balances the need to remove dangerous people from the campus community against the severe repercussions of falsely labeling someone as the perpetrator of a heinous act.
Downgrading the Standard of Proof
Is diluting the current level of due process an effective response to the serious problem of sexual assault on campus?
To answer this question, we must face the uncomfortable reality that there have been many cases in which university disciplinary committees have found individuals responsible for sexual assault and removed them from campus, yet the same individuals are not found guilty in the legal system. Sometimes, this is because assault victims are not willing to go through the bruising experience of being cross-examined by a hostile defense lawyer about the worst and most humiliating experience of their lives. Sometimes, prosecutors simply choose not to pursue cases. So, a permanent record on the college transcript of an individual who has never been convicted of any crime is often the primary source of stigma.
When the disciplinary committee has applied a standard of clear and convincing evidence, this stigma only applies to people who are very likely to be guilty. But what about cases in which there was not clear and convincing evidence of guilt? What about the people whom the committee thought were only slightly more likely than not to be guilty? If discipline committees operate under the new standard, we would expect that in nine out of twenty such cases the process will paint an indelible scarlet letter on the forehead of an innocent person.
With such high stakes, it seems unconscionable to apply a lower standard of proof before irreparably scarring an individual’s reputation by branding him a rapist than before deciding whether someone cheated on a problem set. Yet this is the course of action recommended by the education department.
But if flailing against campus sexual assault by undermining the system of due process is a mistake, we are still left with the problem: what should we do about the miserable status quo of rampant sexual assault on campus?
Improving Campus Alcohol Policy
One factor that comes up in a majority of sexual assault cases is alcohol. Perpetrators’ worst inclinations are often exacerbated by consuming alcohol, while the ability of their potential victims to protect themselves is reduced. But let me be very clear: those who commit sexual assault are in no way absolved of responsibility if they—or their victims—have consumed alcohol.
What does the law say about alcohol? In most states, an individual who has a high enough blood alcohol content to make driving illegal is not able to give legal consent to sexual activity. Yet many students purposely put themselves into such a condition on a weekly basis, just before they go out to meet new people. This is a recipe for disaster. Again, let me be clear: the fact that the victim of an assault has consumed an imprudent quantity of alcohol—or has even violated the law through underage drinking—in no way lessens the culpability of the assailant. But being responsible about alcohol does make people safer, and it does make assaults less likely to happen.
There are two areas for improvement in campus alcohol policy. First, we should work much harder to remind students that they are vulnerable to manipulation after they have been drinking, and that they need to look out for friends and classmates who have had too much to drink. In all too many cases of rape, the witnesses to the events leading up to the assault saw that the victim was inebriated and considered taking him or her to the campus clinic. Had they done so, there would have been no sexual assault. Moreover, students should be made more aware of the dangers not just of driving under the influence of alcohol but of being under the influence. A campus culture that took a more jaundiced view of drinking would be a campus culture marred by fewer sexual assaults.
Secondly, the existing rules against excessive and underage consumption of alcohol should be more rigorously enforced. Ideally, they should be extended. Underage drinking is extremely common. Much of this could be prevented by better education and better enforcement. In most jurisdictions, bars that served alcohol in the way it is dispensed at campus parties would lose their licenses. Consider clubs that conduct initiation ceremonies in which new members must drink huge amounts of hard liquor. If a bar were to do this, their license would be revoked, even if everyone involved were over the legal drinking age.
Greater rigor in enforcing existing rules about alcohol consumption, along with new commonsense rules about alcohol on college campuses, would make a significant contribution towards reducing the incidence of sexual assault on campus. If “town-gown” relations permit, even more progress could be made by restricting access to alcohol near campus.
Limiting irresponsible alcohol consumption is far from the only policy option at hand. By itself, it won’t solve the problem of campus sexual assault. Yet better management of student drinking might be a policy around which we can create a consensus. It surely would be more effective, and it would create less collateral damage, than undermining due process for those who find themselves falsely accused as rapists.
All opinions expressed here are his and not those of Princeton University.