The Department of Education’s withdrawal of the 2011 “Dear Colleague” letter earlier this week will bring about a shift in policy surrounding sexual assault on college campuses nationwide. As new guidelines are put in place over the coming months, Georgetown University has the opportunity to dictate its policy largely at its own discretion. In doing so, the university should uphold the tenets of the letter that will support survivors — most notably the lower evidentiary standard put forth for sexual assault cases — while rejecting other guidelines in the letter that infringe upon students’ rights to due process.

The “Dear Colleague” letter, issued by the Department of Education under former President Barack Obama, established new standards for colleges and universities adjudicating cases of sexual assault. Perhaps the most notable of the guidelines lowered the burden of proof in these cases: The letter dictated that universities should use a “preponderance of evidence” standard — also known as the “more likely than not” standard — to evaluate sexual assault complaints and determine disciplinary action; previously, these cases used the higher “clear and convincing” evidence standard, which is used in criminal cases and for other disciplinary infractions at Georgetown.

The recent rescission of the “Dear Colleague” letter and its impending guidelines will likely de-emphasize survivor-centered policies. If Georgetown were to reverse the standard, it would signal to sexual assault survivors that the university does not prioritize them, particularly as Department of Education policy shifts away from protecting survivors.

The importance of maintaining the lower burden of proof can be seen in the numbers: The Federal Bureau of Investigations estimates that between 2 and 10 percent of sexual assault reports are false allegations. Conversely, only 12.5 percent of incidents of rape were reported to any official, according to a 2015 study by the Bureau of Justice Statistics; the vast majority of rapes go entirely unreported. While it is undoubtedly important to ensure due process in these proceedings to prevent wrongful convictions, the statistics show that, in terms of real-life consequences, it is more important to protect and advocate for sexual assault survivors.

As such, the university ought to use its discretion to uphold the lower evidentiary standard put forth by the “Dear Colleague” letter, thus reaffirming its commitment to sexual assault survivors. While the Department of Education plans to release new guidelines in the coming months, the interim guidance gives schools the option to continue using the “preponderance of evidence” standard. Georgetown should do so.

Policy surrounding sexual assault on college campuses must be considered carefully due to the severity of the issue and the already underreported status of such crimes. While due process rights are important principles to which we should commit ourselves, the tangible consequences that reverting the standard would have on sexual assault survivors must be our priority, and therefore should in this case trump our due process values.

A reversion back to the “clear and convincing evidence” standard would not happen in isolation. University campuses are already rife with cultural and societal stigmas surrounding sexual assault, and reverting the burden of proof would only reinforce the difficulties facing survivors by implying doubts about their stories’ credibility. Reversing the standard of evidence would not be perceived as a simple administrative change, but rather would likely have detrimental effects on survivors, including a probable decrease in the reporting rate.

The proper adjudication of sexual assault cases is vital to our community, and many of the guidelines proposed in the “Dear Colleague” letter are, to their credit, laudable in their efforts to ensure this. For example, the appointment of a Title IX coordinator and the requirement for schools to respond to reported cases of sexual assault are both positive steps in ensuring justice for survivors of sexual assault.

However, despite its numerous benefits, many of the guidelines in the “Dear Colleague” letter are detrimental to the due process rights of the accused. The withdrawal of these guidelines should encourage Georgetown to re-evaluate its own procedures, to simultaneously support survivors while ensuring due process.

The original letter’s guidelines stripped defendants in the sexual assault adjudication process of rights that would be afforded to them in an actual trial. For example, one provision of the “Dear Colleague” letter “strongly discourages” cross-examination, an essential part of the judicial process.
The letter also requires universities to allow accusers the ability to appeal not-guilty verdicts, essentially a form of double jeopardy. Moreover, it permits the university to levy disciplinary measures on defendants — including restrictions about where on campus they can go or what activities they can attend — before the conclusion of any adjudication process and sometimes even after the student has been found innocent.

These guidelines violate the standards of due process that these adjudication proceedings merit. As such, these harms done to the defendants should be redressed. Though the university should not revert the evidentiary standards, it ought to work to both clearly enumerate and properly uphold other due process rights for accused students, including protection from punitive measures before the conclusion of adjudication. In this way, we can work to reaffirm the importance of all students’ right to due process while also upholding our commitment to survivor-centered policies.

Correcting the adjudication process where possible is particularly important as universities are increasingly losing cases filed against them by disciplined students at an alarming rate. Earlier this month, a piece in The Atlantic by Emily Yoffe discussed issues with universities’ sexual assault policies. It notes that, in the last several years, around 170 suits have been filed against universities by accused students alleging unfair treatment in sexual assault adjudication processes. Around 60 of these cases resulted in findings favorable to the students.

The American judicial system is predicated on the idea that the burden of proof lies with the plaintiff, and the benefit of the doubt with the defendant. Though universities are not mandated to live up to this standard, they should look to this standard in cases as serious as sexual assault, as it is in everyone’s best interest that these cases are adjudicated carefully. The change in the burden of proof from “clear and convincing evidence” to “preponderance of evidence” threatens the accused student’s right to due process by allowing for the possibility of a guilty ruling despite significant doubts.

Several legal groups have, over the last several years, expressed serious concerns about the lowered standard of evidence, as Yoffe’s piece discusses. The American College of Trial Lawyers, for example, issued a similar statement in April calling for the use of the “clear and convincing evidence standard” and arguing that, “under the current system everyone loses: accused students are deprived of fundamental fairness [and] complainants’ experiences are unintentionally eroded and undermined.”

Proponents often defend the lower evidentiary standard by arguing that the “preponderance of evidence” standard is typically applied in civil cases. Yet this defense neglects the severity of punishment that can be given in these cases, including expulsion. As this editorial board argued just last week, “The U.S. judicial system, in contrast [to the university], imposes higher levels of scrutiny for more severe punishments with the understanding that it is illogical to lower the burden of proof for those vulnerable to harsher penalties.”

Effectively, the implementation of lower evidentiary standards by the Obama-era Department of Education set a dangerous precedent of eroding due process, as do many of the guidelines of the “Dear Colleague” letter. Yet to revert the burden of proof back to “clear and convincing evidence” would be a mistake, as it would undoubtedly signal to survivors that justice for them is not a priority and as such could pose a severe threat to already low reporting rates of sexual assault.

Now that universities have implemented the “preponderance of evidence” standard, Georgetown and its peer institutions must stick to it, rather than risk the consequences that survivors would face from a return to the “clear and convincing evidence” standard. Though the lower evidentiary standards are an affront to our firm belief in due process, reverting the standard would ultimately be more detrimental in real life, in particular to survivors of sexual assault.

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2 Comments

  1. Jack the Bullfrog says:

    Oooooooookay.

    ” Moreover, it permits the university to levy disciplinary measures on defendants — including restrictions about where on campus they can go or what activities they can attend — before the conclusion of any adjudication process and sometimes even after the student has been found innocent.”

    Georgetown writes its policy. One of these policies, which you bastardize for your argument, is a “No-Contact” Form. A person can submit one against another student to the Office of Student Conduct, no questions asked. Then, if that student or the subject of the form engages with the other in any way, they risk expulsion. Again – it swings both ways. Survivors often use this mechanism immediately after reporting to protect themselves against retaliation by the perpetrator. Both the filer and filee engage in a give and take with the Office of Student Conduct over where each party can go on campus and what organizations they can participate in. This instrument, while used in many sexual violence cases, is independent of the actual Title IX proceedings.

    I strongly encourage you, as the Editorial Board, to reduce your number of publications in favor of producing more developed opinions. Your crass simplifications of Dear Colleague and DeVos’s designs are dangerous additions to the campus conversation.

  2. The Immovable Rock says:

    One of the beliefs rooted behind the “beyond a reasonable doubt” standard in criminal cases is that it is better to let 10 guilty men free than imprison 1 innocent man. One of my fathers worst moments in life was when he found out he had put an innocent man in jail. Thankfully, it was only a few months.

    we are not talking about sending people to jail, but expulsion is a serious punishment with wide-ranging consequences.

    In your article, you mention that you are committed to due process and don’t necessarily agree with the Obama-era regulations but still do not want to change the evidentiary standard back up to clear and convincing because it would seriously harm efforts under way to increase reporting rates and victims’ ability to deal with sexual assault
    .
    You say the facts back your case, but I would say if you are truly committed to due process, when you see that possibly 10% of cases are false reports, that should be serious cause for concern.

    I find it somewhat disconcerting that the school has to prove a higher burden of evidence for something as small as an alcohol violation then it does for an incredibly serious offense that is absolutely despicable and has huge consequences.

    Obviously no one is pro-sexual assault, we need to provide every resource to victims, and it would be ten-steps in the wrong direction if we started questioning the validity of reports, but when we are dealing with serious charges and serious consequences, the university needs to make sure they get everything right. This will actually help victims of sexual assault, because it will legitimize the adjudication process, and help prevent long drawn out appeals processes and possible civil suits which could possibly be very damaging to the psyche of a sexual assault survivor.

    I am in favor of levying the most severe punishment possible against perpetrators, we just need to make sure when we levy these punishments, we are doing it against those who are actually guilty.

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