Monday, September 19, 2011

College nixes "preponderance of evidence" standard for non-sex offenses

Pipe Dream, Binghamton University's student-run newspaper, published an editorial last week applauding the fact that the Office of Student Conduct will not be reducing the the standard of proof in all cases of alleged student misconduct to "a preponderance of the evidence," as previously announced.

The school will, instead, use the "clear and convincing" evidence standard for all cases where sexual violence is not alleged.  According to the editorial: "The office will follow through in making preponderance of the evidence the basis for cases of sexual violence, in accordance with Title IX guidelines — an unavoidable move. But in all other cases, the Student Conduct Board will need to possess 'clear and convincing evidence' to convict."

Student leaders protested, and administrators listened -- for non-sexual offenses.  Good for them. But Binghamton, like all institutions of higher learning, is stuck with "preponderance of the evidence" standard for claims involving alleged sexual violence.

Common sense tells us that the vast majority of claims that will be decided under the "clear and convincing" standard are less serious, and less difficult to sort out, than most claims of sexual assault. And that is precisely why sexual assault claims should be adjudicated using a higher standard of proof than claims of lesser wrongdoing.

The more severe the punishment that can be administered, and the greater the stigma that flows from an adjudication of guilt, the higher the standard of proof should be.

Moreover, critics of the "clear and convincing" standard of proof for sex offenses insist that the absence of hard evidence in many sex cases justifies a lower standard standard of proof. They have it backwards: the absence of hard evidence to prove any offense is a sound reason to be more wary about punishing persons accused of it, not a valid justification to make it easier to convict the innocent along with the guilty.

Binghamton University got it exactly right, and the Department of Education has it backwards. It's time to turn back the clock to before April 4, 2011 and let colleges set their own standards of proof for all offenses.