Wednesday, August 17, 2011

'Rape should be tough to prove'

By Cynthia Bell
Philadelphia Inquirer

For better or for worse, the Casey Anthony trial is over and she has been released from jail.

The crux of the verdict was the lack of evidence to convict Anthony. For a criminal trial, the standard of evidence is "beyond a reasonable doubt." Anthony could have received the death penalty if convicted, so it makes sense that there had to be no reasonable question in a juror's mind that she was guilty. Having lied and refused to report her child's death, Anthony definitely seems morally culpable for whatever she did, but to put someone to death in this country, a jury cannot rely solely on feelings or popular sentiment. Jurors must know someone is criminally guilty with almost complete certainty.

One valuable lesson from the trial is the reminder that every American enjoys the protections afforded by the Fifth and Fourteenth Amendments to the U.S. Constitution. These amendments restrict the power of federal and state governments by recognizing our right to due process, the canons of fairness in judicial proceedings that safeguard the innocent. Basically, due process affords Americans the presumption of innocence until proved guilty.

And for all the emotion and hype over the Anthony trial, the real threat to that presumption is in the world of higher education.

In April, the U.S. Department of Education's Office for Civil Rights (OCR) issued a letter stating that all colleges and universities receiving federal funding must employ a "preponderance of the evidence" standard for all student complaints involving sexual assault or harassment. If this standard is not used, universities receiving federal money (only a handful don't) risk losing their funding.

"Preponderance of the evidence" means "more probable than not." There are two common standards of proof that are higher: "clear and convincing evidence" and "beyond a reasonable doubt." In the U.S. judicial system, the higher the stakes, the higher the standard of proof required.

A high standard of proof ensures that people aren't wrongly imprisoned or, in the most dire circumstances, executed. One shouldn't receive the death penalty just because jurors thought it was "more probable than not" that the defendant committed a crime.

Yet, after the OCR issued this letter, many colleges rushed to change their student handbooks to lower the standard of proof for sexual crimes. To be sure, sexual assault is a horrible crime. It is a complete violation of a person's mental and physical dignity, and it makes sense that our nation's universities would go to great lengths to combat such behavior.

But sexual assault is a criminal offense, and a felony to boot. It is a serious crime that should be reported to the police, not dealt with by campus judiciary systems with a low standard of proof. Lowering the burden of proof in these cases puts more college students at risk of being wrongly found guilty and having their reputations permanently damaged. How many innocents does OCR want to see mistakenly expelled as rapists in the name of getting tough on crime?

Real accusations require real evidence, and it is grossly unfair for students nationwide not to be afforded the rights they deserve simply because they want a college education.

Ms. Bell is a rising senior at Seton Hall University and a former intern at the Foundation for Individual Rights in Education

Source: http://m.philly.com/phillycom/db_/contentdetail.htm?contentguid=1F1DDGAp&full=true#display