Friday, March 15, 2013

At the University of Michigan, data is in on the school's first year using the 'preponderance of the evidence' standard for sexual assault: for most claims, the school did not disbelieve the accused

For a long time, many rape survivors' advocates have unjustly trivialized the victimization of the wrongly accused by insisting there aren't enough of them to worry about. These advocates deftly discount exonerations and jury verdicts of "not guilty" in rape cases by pointing to the high standard of proof, "beyond a reasonable doubt," and saying -- correctly -- that it doesn't prove that a rape didn't occur.

But now, they will have a more difficult time invoking the standard of proof when a college student is cleared of sexual assault in college disciplinary hearings in light of the Department of Education's instruction that schools adjudicate sexual assault cases by using the lowest possible standard in our jurisprudence -- a preponderance of the evidence. This standard means that a school must find guilt if the evidence is even 50.001% tilted in favor of the accuser's story.

It is too early to say that the University of Michigan is a microcosm of the way American universities handle alleged sexual assault cases under the preponderance of the evidence standard, but in the first year that the school used the lower standard, there are some very interesting findings.

Of the 38 sexual assault violations reported to the school last year, six students were found responsible and seven students were cleared of wrongdoing. In 19 cases, officials didn't have enough information to move forward. Source.

At the University of Michigan last year, even with a preponderance of the evidence standard, fewer than 19 percent of reported claims could be proven.

Let us briefly analyze. First, let us look at the 19 cases that the school couldn't move forward on -- this was the majority of cases. It is probably fair to say that in most cases, the decision to not pursue these cases was not due to their "he said/she said" nature because the purpose of lowering the standard of proof was to allow schools to adjudicate "he said, she said" claims without worrying about obtaining corroborating evidence to buttress a disputed claim against a male student. It is fair to say that these claims generally didn't qualify as sexual assaults for a variety of reasons, including possibly false reporting, but without more information, it would be reckless to posit a definitive conclusion. It would, however, be grossly unjust to the community of the wrongly accused to assume that these claims were actual instances of sexual misconduct.

Set aside the nineteen reported claims that the school summarily dismissed due to insurmountable infirmities, of the claims that were actually adjudicated under the new "preponderance of the evidence" standard -- where, essentially, if the school believes the accused, the accused is cleared, and if it believes the accuser, the accused is punished -- the school found for the accused 54% of the time.

Rape survivor's advocates will have a more difficult time chalking up this result to the standard of proof. Even removing the 19 cases that were quickly disposed of with no charges, for most of the claims, the school did not disbelieve the accused.

It would be a mistake to assume that these seven claims where student were cleared were false reports -- we just don't know. For these seven cases, the school might have found the accuser's evidence equally compelling to the accused's.

What's ironic is this: the data that is used to prove that rape is rampant and to support efforts to minimize false rape claims largely comes from surveys that don't bother to actually test the claims by examining the evidence. This University of Michigan data is another example that, where the evidence is tested -- even using the low preponderance of the evidence standard -- there are relatively few claims that can be proven.

We know there are false claims, and we know there are actual sexual assaults, but mostly, there are claims where no one can say whether it was one or the other. For claims that are reported, it is fair to say that very few can be proven, even with a preponderance of the evidence standard.

The community of the wrongly accused needs to be at the forefront in condemning sexual assault, but we also need to insist that the persons who dominate the public discourse on this subject stop assuming that exonerations and the gray claims that no one can say were rape or false claims, were, in fact, actual rapes, because that's simply dishonest, and they do it all the time.