Dear Colleague Coercion

On April 4, 2011, the Department of Education’s Office for Civil Rights released what became known as the “Dear Colleague” letter, urging colleges and universities to review their policies regarding the investigation and punishment of sexual violence. An environment made unsafe by sexual violence, the letter states, impairs students’ ability to learn, and constitutes an illegal violation of their right to an education free from discrimination. For that reason, sexual crimes including rape, sexual assault, battery, and coercion all fall within the purview of Title IX legislation: “If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”

For the most part, the letter offers a helpful, if somewhat superfluous, reminder of schools’ obligation to protect students who have been victims of sexual harassment, whether on or off campus. University employees are to be trained to deal sensitively with students who have been victimized. Administrators are to establish a set of grievance procedures where students can file complaints, and then investigate each one to determine whether sexual harassment has occurred. Much like a criminal court, both sides must be permitted to present evidence and witnesses in their favor, and must have the right to appeal. And if necessary, the school should take action to protect the victim from further harassment.

 But one of the letter’s recommendations has caused controversy. Right now, to convict a student of sexual assault on most college campuses a plaintiff must demonstrate “clear and convincing” evidence. The phrase is a legal expression meaning that there is a high likelihood that the accused is guilty—a fairly rigorous level of proof. Princeton’s Subcommittee on Sexual Misconduct employs similar language, requiring the presence of “clear and persuasive evidence” in order to win a case.

The letter, however, urges schools to move away from this standard and instead require a “preponderance of evidence”: the plaintiff must prove only that the accused was more likely than not to have committed the crime—in other words, a 51% probability that he or she is guilty. Last May, the Daily Princetonian’s editorial board called for the University to lower its standard of evidence in cases of sexual assault to match Title IX procedures. While the call for this move reflects very real concerns about rape and other forms of sexual violence going unreported on campus, trying to rectify this wrong by compromising the University’s system of purposeful neutrality would be to start down a dangerous road.

Certainly the recommendations set forth in the Dear Colleague letter mark an encouraging willingness to speak seriously about the reality of rape on college campuses. Last March the ‘Prince’ reported that, according to a survey conducted in 2008, over 15% of female undergraduates—only slightly lower than the national average of one in five—had experienced “non-consensual vaginal penetration” since arriving at Princeton. University-sponsored programs like “Unless There’s Consent,” and student-initiated campaigns like “Consent is Sexy,” seek to raise awareness and reduce blurred lines by emphasizing consent in every sexual encounter. A growing branch of feminism pushes back against the “rape culture,” the ingrained attitudes that trivialize date rape and blame it on the predominantly female victims.

Especially in a culture where alcohol regularly fuels casual hookups, the reality is that often the only evidence of sexual assault is one person’s word against another’s. In cases like these where evidence is scant, the editorial board argues, the change would encourage victims to speak up and make it more difficult for their attackers to go unpunished—certainly, taken by itself, an objective social good.

However, lowering the standard of evidence needed to convict would also signify a compromise of the University’s justice system, running the risk of convicting the innocent alongside the guilty. Though uncommon, it is not unheard of for an accusation to gain ground before being ultimately proved false: the case of the Duke Lacrosse players in 2006 comes to mind. While on the one hand watching your attacker go free is a terrible wrong, so is seeing your life and your reputation destroyed by a false accusation.

Until he is found guilty, the defendant in a sexual assault case is a student of the University no less than his accuser and deserves for the case brought against him to be rigorous. It is easy and even natural to reflexively jump for policy change in cases like this, when there is a horrific evil that needs correcting; it is less easy, but no less important, to hang back and consider the benefits and drawbacks of such a change, remembering that it is not just a statistic that is at stake, but real human futures, on both sides of every case.

While the University’s disciplinary system is not the same as a criminal court, it has traditionally functioned on the same principles as our American legal system: due process, impartial justice, innocent until proven guilty. Balancing the support and protection of victims of sexual assault against the rights of due process is no easy task, and it has no simple solution. It touches on a larger question that America faces as a culture, one whose impact lies far beyond the realm of college law: Are we, as a nation of self-governed people, seeking only the outcomes that we want, no matter what the risk? Or are we bound to the principle of justice through impartial procedure, no matter what the pain?

 

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