Thursday, February 14, 2013

American Association of University Professors stands up for the rights of the innocent in its new report on sexual assault

The American Association of University Professors (AAUP) has released its first report on the topic of campus sexual assault. It was spearheaded by the AAUP's Committee on Women in the Academic Profession, Subcommittee on Sexual Assault on Campus, and it makes clear that the AAUP does not support the Department of Education's mandate that schools use a "preponderance of the evidence" standard -- the lowest in our jurisprudence -- for college disciplinary proceedings involving sexual assault.

In words that should be applauded by everyone concerned about protecting the innocent from unjust punishment, on page 14 of the report, the AAUP writes:
In an effort to improve the likelihood of bringing perpetrators to justice, the Office of Civil Rights has proposed lowering the standard of proof in disciplinary proceedings involving sexual assault. Advocating a “preponderance-of-the-evidence” standard over the prevailing standard of “clear and convincing evidence,” the OCR argues that this shift would help level the
playing field for victims of sexual violence.

The proposal has in general been favorably received by women’s advocacy groups and sexual-assault support agencies, but opposed by many organizations representing both progressive and conservative values. The AAUP advocates the continued use of “clear and convincing evidence” in both student and faculty discipline cases as a necessary safeguard of due process and shared governance.

Words matter, and the AAUP's wording is chilling: the higher "clear and convincing evidence" standard isn't just preferable, it is "necessary" in order to insure that students are afforded the due process they are entitled.

The AAUP previously protested the Department of Education's mandate that schools use the lower "preponderance of the evidence" standard in faculty dismissal proceedings (see here and here), and now it has made clear that students deserve the same due process protections owed to faculty.

It is well to remember that the only reason the higher "clear and convincing evidence" standard is used, as opposed to the "preponderance of the evidence" standard, is to protect the innocent from being unjustly punished. By mandating that the standard of proof be lowered, the Department of Education believes that more rapists will be punished, but it didn't bother even to consider the trade-off:  the use of the lower standard puts innocent young men at greater risk of being punished for sexual offenses they did not commit. The implication is that this risk is worth it, in light of the goal of protecting women on campus by nabbing more rapists. This turns on its head our jurisprudence's long-standing belief that it is much more important to protect the innocent than to convict the guilty. See here. Under the new "preponderance of the evidence" standard, a disciplinary board might have serious doubts about a young man's guilt, but nevertheless must find him guilty if it believes the accuser's evidence is even slightly more persuasive than the accused's.

An innocent student has a substantial interest in not being wrongly expelled from college. Cornell's Prof. Cynthia Bowman said this: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma. To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” She added that procedures proposed at her school in response to the Department of Education's mandate were "Orwellian.” Cornell's Prof. Kevin Clermont noted that “not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque.”

The fact that sexual assault generally is difficult to prove because of the absence of evidence beyond the word of the accuser is not a valid reason to make it easier to punish the accused. The absence of physical evidence to prove sexual assault should caution schools to use even greater care to insure that the innocent aren't punished with the guilty. Due to the politicized nature of the public discourse on this topic, concern for the innocent has been largely ignored.

The AAUP's report strikes an important blow for the innocent, and the AAUP is to be commended.