The Cornell Daily Sun has written a thoughtful editorial discussing an uptick in sexual assault reporting on campus, and the fact that the school's Office of the Judicial Administrator has lowered the standard of proof in cases involving alleged sexual misconduct from "beyond a reasonable doubt" to "preponderance of the evidence." This revised policy is in response to the Department of Education's April 4, 2011 "Dear Colleague" letter.
The editorial correctly notes that lowering the standard of proof "has . . . made it easier for victims to win cases in the campus judicial process . . . ." That, in itself, is a benefit that should not be trivialized.
But the editorial doesn't ignore the fact that making it easier to punish offenders carries serious risks. Cornell's Codes and Judicial Committee, charged with reviewing changes to the Campus Code of Conduct, approved the lower standard of proof for sexual assaults only "hesitantly, noting that it would have preferred to keep the higher standard." The editorial correctly notes: "This lower burden of proof, while helping some victims get justice, may also have the negative consequence of falsely convicting some accused students."
"With this new policy," the editorial explains, "the benefits that come with punishing legitimate perpetrators may come with the increased risk of false conviction, especially when evidence for these types of crimes is largely based on 'he said, she said' testimony."
The thoughtful recognition of that risk is at the heart of this blog's mission. Too many commentators touting the "Dear Colleague" letter's "preponderance of the evidence" mandate fail to acknowledge the risk it creates.
Some commentators have posited that since it is difficult to prove rape in "he said, she said" sexual assault cases under a "clear and convincing" or "beyond a reasonable doubt" standard, then the obvious solution is to adopt a policy that will make it much easier to punish the accused. Those commentators have it exactly backwards: the absence of hard evidence to prove any offense is a sound reason to be wary about finding the presumptively innocent guilty of it, not a valid justification to make it easier to punish the innocent with the guilty.
The Daily Sun's editorial continues: "Instead of focusing the debate on arguments about the standard of proof for sexual assault in the Campus Code of Conduct, Cornell, as well as the federal government, should shift the focus toward preventing these crimes from occurring in the first place and increasing the amount of reporting when they do occur, both of which bring fewer risks than changing the burden of proof."
Preventing these crimes from occurring in the first place will also reduce both false claims and misconstrued claims. Prevention includes eduction--teaching the dangers of mixing alcohol and hook-ups, better communication, and the fact that, as Prof. Ann Bonomi of OSU said, "women tend to feel bad after having a random hook up," while men do not, due to society's "gender double standard" that men are expected to be more sexually forward than women.
Too often, the public discourse about sexual assault fosuses solely on punishing more offenders. The Daily Sun is to be commended for injecting into the public discourse the other half of that critical balance: insuring that the innocent aren't punished with the guilty.