The higher standard of proof at Princeton, and everywhere that it is employed, is designed to do just one thing: make it difficult to punish the innocent for offenses they did not commit. The editorial's upshot -- that it is worth the risk of punishing some innocent students in order to nab more guilty ones -- turns on its head the long-settled consensus of civilized people that it is far more important to protect the innocent than to convict the guilty. This sentiment was most famously articulated by the celebrated English jurist William Blackstone, but its roots extend back at least to the Book of Genesis, when God was deciding what to do about the evil in Sodom and Gomorrah.
In language that is downright Orwellian, the editorial explains that because it is difficult to find students guilty of sexual assault, the rules need to be changed to make it easier to do this:
Sexual assault is unique among cases requiring on-campus discipline. The physical evidence in these cases rapidly deteriorates or is completely unavailable, and often the only witnesses are the victim and the guilty party. Such a dynamic makes it difficult to meet the current standard, since it is hard to accumulate enough evidence to meet the high burden of proof. . . . While the clear and persuasive standard may be appropriate in cases of theft, assault or drug use where there is often clear evidence and witnesses, such a standard is inappropriate in the case of sexual assault.The editorial has it backwards: the absence of corroborating evidence to establish guilt or innocence in "he said/she said" cases is scarcely a valid justification to make it easier to punish the presumptively innocent. Rather, it underscores the necessity of being ever more vigilant of the possibility of punishing an innocent person for something he or she did not do. The "clear and persuasive evidence" standard should not be scrapped; it should be fortified.
The editorial justifies its call to roll back the rights of the presumptively innocent by citing underreporting of sexual assault. The current standard of proof, it declares, "likely has the effect of discouraging students from pursuing claims of sexual assault in front of the Committee on Discipline because they feel that they will not be able to prove their cases."
This epiphany is posited with no supporting evidence beyond the editorial board's serene ipse dixit. The invocation of "underreporting" to support lowering the standard of proof is a snare and a delusion, and the editorial board would have better served its readers by actually examining the evidence before calling for the rights of some of its students to be rolled back based on a gut reaction.
For one, the editorial board could have looked to Scott Berkowitz, President & Founder of the Rape, Abuse, & Incest National Network (RAINN), undeniably an expert on the subject. His testimony about this subject in a Senate hearing in 2010 undercuts the editorial board's conclusion. Amanda Hess summarized it here:
More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. "A generation ago," the reasons were things like, "fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial."The editorial board also should have sought out the experience of other schools that have lowered their standards of proof. Last year, the University of Maryland lowered its standard of proof for sexual assault convictions from “clear and convincing evidence” to “preponderance of evidence.” Has this resulted in more reporting? “I was hoping that with changing the standard of evidence, that it would have an influence on sexual assault reporting, but it hasn’t really,” said resident student conduct manager Keira Martone. See here.
Today, "the perception of many victims has evolved." Now they don't report for these reasons: "they don't want their loved ones to know what happened; they're ashamed themselves; they just want to put it all behind them." Today, "fear and shame of how the police wil [sic] treat them" has moved down on the list of reasons victims provide for not officially reporting the crime.
The editorial board even undercuts its own argument about underreporting by asserting: "While over 40 assaults have been reported over the past few years, these accusations have resulted in only three punishments." This suggests that the problem isn't underreporting after all. (Beyond that, the editorial board doesn't bother to furnish any explanation as to why the 37 cases resulted in no punishment. The reader is supposed to take it as a given that justice was not served in these cases, an assumption that is without any supporting evidence.)
What does the editorial board say about the fact that innocent students are more likely to be punished if the school were to adopt the lower standard? In perhaps the most breathtaking assertion of the entire piece, the editorial board says that there is no necessity to be concerned about the innocent because even if they are found guilty, the disciplinary board may not punish them as harshly as the guilty.
This assertion bizarrely conflates the adjudication of guilt and the sentencing phases of a disciplinary proceeding. It is akin to telling an innocent man to take consolation in the fact that a corrupt judge who unjustly tried and convicted him has discretion to exercise leniency in meting out his punishment. Whatever this is, it is not justice.
The students of Princeton need to understand what the lowering of the standard of proof means for the innocent who are wrongly punished for something they did not do: "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,” said Prof. Cynthia Bowman of Cornell. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.” Even attorney Brett Sokolow, the most prominent sexual assault victim's advocate on American campuses, has expressed concern that "a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.” He, too, points out that the stakes are high for students expelled for sexual assault: expelled students no longer automatically have the option of just registering at another school. Nowadays, schools share information, which makes that problematic, so students who are expelled have a lot more at stake.
The American Association of University Professors (AAUP) recently released its first report on the topic of campus sexual assault, spearheaded by the AAUP's Committee on Women in the Academic Profession, Subcommittee on Sexual Assault on Campus. It makes clear that the AAUP does not support the Department of Education's mandate that schools use a "preponderance of the evidence" standard for college disciplinary proceedings involving sexual assault. The higher "clear and convincing evidence" standard isn't just preferable, it is "necessary" to insure that students are afforded the due process they are entitled, according to the AAUP.
It is a tenet of the Community of the Wrongly Accused that every civilized society must strive to eradicate heinous criminality by punishing offenders, but it also must insure that the innocent aren't punished with them. The latter concern too often is absent from the public discourse. What we need are more adult voices grappling with these issues in sincere, reasonable ways, not puerile incantations asserted to satisfy a public outcry to get tough on rapists. Mark A Godsey of the Innocence Project recently said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."
It is well to note that the position of the editorial is, by any measure, anti-progressive. Innumerable valiant progressives over the past century, many of them attorneys defending the wrongly accused, have sought at every turn to expand the due process rights of our citizens, and our history as a people can be written by tracing the expansion of these rights. We can't recall the last time when persons who identify as progressives cheered rolling back the due process rights of some of our citizens. Have the hanging trees of the Old South been transplanted to the shores of Lake Carnegie at Princeton?
To put into perspective how far from the mainstream this policy is, it is well to note that at the urging of FIRE and others, the Democrats in the U.S. Senate removed the higher standard advocated by the editorial board from an early version of the recently reenacted VAWA.
Finally, we applaud the dissent to the editorial penned by Zach Horton. As he eloquently puts it: "It is indeed lamentable that transient evidence may make [finding evidence of guilt] difficult. It would be more lamentable, however, to uproot the tradition of 'innocent until proven guilty' by allowing the accuser’s testimonial evidence to carry more weight than the word of the accused."