"Under Title IX, a woman is entitled to equal access to everything on a college campus. That includes being safe."

July 20, 2011 12:13 PM

In response to campus advocates and new directives from the U.S. Department of Education's Office for Civil Rights, Stanford University has lowered the evidence standard for cases of sexual misconduct from "beyond a reasonable doubt" to a "preponderance of the evidence". This move, which applied immediately and took effect during then on-going proceedings, was met with praise from students("If the new Standard of Proof bothers you, there’s an easy solution: don’t sexually assault people"), but has proved controversial among civil liberties organizations ("a shocking disregard for fair procedures on campus"), academic scholars ("a declaration of martial law against men...and a betrayal of the Title IX equity law"), and alumni ("The President’s recent decision is all the proof I need to know that the University shows little respect for the rights of students").

Stanford has also issued a statement saying that they have concluded that this is the only legally acceptable standard.

Many have suggested that these changes have a connection to Vice President Joe Biden's longstanding fight against sexual violence and abuse.

posted by Chipmazing (123 comments total)

Also worth noting, the preponderance of the evidence standard is the one used in most U.S. civil trials.
posted by craven_morhead at 12:22 PM on July 20, 2011 [9 favorites]

fwiw, the author of the "academic scholars" link, Christina Hoff Sommers, is a pretty vocal modern feminist critic. Including The War Against Boys: How Misguided Feminism Is Harming Our Young Men. She may, or may not have a valid argument, but is hardly a neutral commentator. (many consider her a libertarian and socially conservative)
posted by edgeways at 12:22 PM on July 20, 2011 [12 favorites]

"If the new Standard of Proof bothers you, there’s an easy solution: don’t sexually assault people"
What is begging the question, Alex?
posted by Holy Zarquon's Singing Fish at 12:22 PM on July 20, 2011 [17 favorites]

Campus justice systems as a whole are a bizarre lot.. They aren't criminal proceedings, so you don't face jail time during such a trial .. But all the things we trumpet about the US justice system (right to counsel, 5th amendment protections, innocent until proven guilty, quality of evidence submitted, right to face your accuser, etc) don't necessarily apply to a campus proceeding.

Add in the jurors/judges may be students, and, well, you've got a big cluster.
posted by k5.user at 12:23 PM on July 20, 2011 [1 favorite]

A case where this has led to a Kafkaesque result:

In a stark demonstration of the failure of campus judicial procedures, the University of North Dakota (UND) has found a student guilty of sexual assault despite the fact that local police refused to charge him with a crime and instead charged his accuser for lying about the incident. Former student Caleb Warner has been banned by UND from stepping foot on any state public campus for three years. Meanwhile, his accuser has been wanted by the Grand Forks Sheriff's Department for more than a year on the charge of making a false report to law enforcement.
posted by sbutler at 12:24 PM on July 20, 2011 [25 favorites]

Just to be clear, the evidence standard varies a great deal in a lot of different disciplinary and tort-based proceedings. It is only consistently "beyond a reasonable doubt" in criminal proceedings, which these are not. If you objected that strongly to the use of this evidentiary standard, you could always demand to be charged criminally.
posted by mek at 12:24 PM on July 20, 2011 [3 favorites]

(and the last paragraph of the FPP should really have something to back up the assertion made)
posted by edgeways at 12:25 PM on July 20, 2011

What is the standard of proof in non-sexual misconduct cases?

"If the new Standard of Proof bothers you, there’s an easy solution: don’t sexually assault people"

Uh, yeah, that's bullshit. I'm not saying it DOES bother me(I need more information), but that's just "if you're doing nothing wrong, you've got nothing to worry about."
posted by Bulgaroktonos at 12:27 PM on July 20, 2011 [13 favorites]

If you objected that strongly to the use of this evidentiary standard, you could always demand to be charged criminally.

No, you couldn't. Stanford can't charge you criminally. And see sbutler's comment for an example of someone not being charged by the police and still disciplined.
posted by Jahaza at 12:28 PM on July 20, 2011 [2 favorites]

A case where this has led to a Kafkaesque result:

To play devil's advocate, there is a clear example of bias both in your account and the linked account. It's just as possible the police are wrong and the campus justice system made the correct decision.
posted by mek at 12:28 PM on July 20, 2011 [8 favorites]

you could always demand to be charged criminally

Can you really? I'm not aware of a procedure for making such a demand. Nor does it seem that a private institution (or even a public school) would be obliged to take (or refrain from taking) any adverse action on the basis of an acquittal in a criminal matter.
posted by spacewrench at 12:29 PM on July 20, 2011 [1 favorite]

Meanwhile in this case, woman has evidence - two confessions from the assailant - but district attorney won't prosecute because she has bipolar I.
posted by echolalia67 at 12:30 PM on July 20, 2011 [6 favorites]

to be fair, most of the pull-quotes used are bullshit. "a shocking disregard.." (I'm kind of sick of this particular overused phrase in general), "all the proof I need to know that the University shows little respect for the rights of students" and my fav, "a declaration of martial law against men". I really don't think people think before they express opinions anymore.
posted by edgeways at 12:31 PM on July 20, 2011 [2 favorites]

ALSO: The school will "open the appeals process to alleged victims", which seems to mean (it's not explained) that it's now possible to appeal a not-guilty verdict.

Uh.
posted by Holy Zarquon's Singing Fish at 12:34 PM on July 20, 2011

Also worth noting, the preponderance of the evidence standard is the one used in most U.S. civil trials.

Yeah, this. I'm pretty unfazed by the change in evidentiary standards. Stanford doesn't hold criminal trials. Stanford doesn't levy criminal penalties.
posted by Sticherbeast at 12:34 PM on July 20, 2011 [9 favorites]

ALSO: The school will "open the appeals process to alleged victims", which seems to mean (it's not explained) that it's now possible to appeal a not-guilty verdict.

Uh.

So what? You can do this in real court, too.
posted by Sticherbeast at 12:35 PM on July 20, 2011

So what? You can do this in real court, too.

...in civil matters, which is what I meant.
posted by Sticherbeast at 12:35 PM on July 20, 2011 [1 favorite]

Yeah, this isn't terrible for Stanford, considering that they aren't a criminal court, but one would hope that, having access to some of the world's greatest legal scholars, they could have worked on coming up with a solution which wasn't so awful in its precedent.
posted by Navelgazer at 12:37 PM on July 20, 2011

Edgeways, it often seems that even handed commentary wouldn't play well with their audience, imho. While a balanced discussion about this is very doable, and perhaps necessary - the title IX implications, the power of campus tribunals, the origins of policy, etc. etc. - balance doesn't play well outside of places like...here. A declaration of martial law against men gets you linked to, discussed and invited to speak. The article is hyperbolic and her book The War Against Boys is inane in many parts, but while I don't agree with her opinion on a personal level, it was the most well-written piece in opposition from that point of view, which is generating a lot of the discussion around this policy change.

We're also likely to keep having this conversation as many major universities are forced to/do follow suit.
posted by Chipmazing at 12:40 PM on July 20, 2011 [1 favorite]

Something else worth noting is that this is the same evidentiary standard used in other civil rights cases within the Title IX remit. In that context, it makes a lot more sense to not have sexual misconduct held to a higher standard of evidence than commiserate offenses, especially given that sexual misconduct cases are often characterized by more conflicting evidence than other civil rights cases, i.e. he-said-she-sad.
posted by klangklangston at 12:43 PM on July 20, 2011 [7 favorites]

The problem I have with this is that it looks like(I'm not sure) that there is now a different standard of evidence in sexual misconduct cases. At least one of the links says that "Honor Code and Fundamental Standard cases" use beyond a reasonable doubt.

The justification for having a lower standard for one class of offense seems to be "these cases are hard to prove" which is not a legitimate justification. That's putting your finger on the scale and changing the rules to determine the outcome. The justification for having different standards of evidence in civil and criminal trials is because we care less if someone who is wrongly found civilly liable than if they are found criminally liable. It's about the consequences, not about the number of people who are found liable.

I'm also not sure why the jump is made from beyond a reasonable doubt to perponderance of the evidence, bypassing clear and convincing evidence completely. That would seem to be the appropriate standard for something that carries, in the context of the university, very serious consequences, but not jail time.
posted by Bulgaroktonos at 12:47 PM on July 20, 2011 [7 favorites]

Whups. He-said-she-said. Freudian typo?
posted by klangklangston at 12:47 PM on July 20, 2011 [2 favorites]

From the students link:

If you carry the world view that false sexual assault allegations are commonplace, then don’t do anything that would make a woman want to file one against you. They don’t just come out of the blue. Think about cutting down on sex with blackout strangers. Maybe reduce the number of sexist insults you use whenever you get in an argument with a romantic attachment.

I didn't think I would ever see someone re-purpose the "she asked for it" rhetorical device as a way to excuse false sexual assault allegations.
posted by burnmp3s at 12:48 PM on July 20, 2011 [19 favorites]

klangklangston: that only makes sense (and barely there) if these were actually Title IX cases, which they aren't. (If I am wrong about that, somebody please correct me.) As this is a matter of scholastic discipline, sure, whatever. Do what you need to to make things safer, and hope those measures help. But as an actual policy argument, this doesn't hold up. You don't create a special class of crime where the defendant is no longer innocent until proven guilty, simply because of the likely nature of testimony involved.
posted by Navelgazer at 12:51 PM on July 20, 2011 [1 favorite]

You don't create a special class of crime where the defendant is no longer innocent until proven guilty, simply because of the likely nature of testimony involved.

Are "no longer innocent until proven guilty" and "requiring only preponderance of the evidence" equivalent things?
posted by kmz at 12:56 PM on July 20, 2011 [1 favorite]

You don't create a special class of crime where the defendant is no longer innocent until proven guilty

These aren't criminal proceedings, so this is definitely not what is happening here.
posted by mek at 12:56 PM on July 20, 2011 [5 favorites]

So is he/she balance + anything suggestive preponderance of evidence? Is this going to effectively require thorough credibility slut-shaming from defendants?
posted by a robot made out of meat at 12:59 PM on July 20, 2011

but has proved controversial among civil liberties organizations ("a shocking disregard for fair procedures on campus"


This is a link to an organization from called FIRE - Foundation For Individual Rights in Education. From their Mission page:

This project carefully monitors the issue of thought reform on campus. College orientation sessions have become vehicles for ideological indoctrination as freshmen are herded into mandatory diversity seminars, put through embarrassing orientation exercises, and forced to submit to administrative dogma on matters of private conscience. Faculty are increasingly assessed by vague, subjective criteria such as "commitment to diversity." Through this project, FIRE demonstrates the danger of imposing official viewpoints and the importance of the individual's right to decline attending such programs.

Unh, uh.

Do you have any anti positions from groups/people that aren't conservative as hell?

Because so far, based on the people that oppose it, I'm all for it.
posted by nooneyouknow at 12:59 PM on July 20, 2011 [18 favorites]

If you carry the world view that false sexual assault allegations are commonplace, then don’t do anything that would make a woman want to file one against you.

I could get behind this change to the burden of proof if it actually had a chance to cut down on undergraduate hookups or caused young men to treat women more respectfully and not objectify them, etc. But we're talking about college kids and sex here. Unfortunately it's just going to get a few extra guys tossed into the 'you raped me!' trash-heap--and on their academic record, at that--because they were too excited to realize they were too close to the line of consent/lack of consent with some poor girl.

The old burden of proof kept the balance of risk pretty equal: screw around when the rules weren't clear and women, you might get raped, and men, you might get accused of rape. Now it's shifted pretty favorably to favor women. This is a lose-lose: I think this will not prevent gray area cases/rapes and will only cause more men trouble after the fact who didn't behave rationally and consider the consequences when in those gray areas.
posted by resurrexit at 1:02 PM on July 20, 2011 [1 favorite]

Edgeways, it often seems that even handed commentary wouldn't play well with their audience, imho. While a balanced discussion about this is very doable, and perhaps necessary - the title IX implications, the power of campus tribunals, the origins of policy, etc. etc. - balance doesn't play well outside of places like...here.

So... the assertion is that balance goes well here, but not elsewhere. Then perhaps when addressing it here a balance of sources is better? As written it sounds like only the students praise the change while civil liberties groups, academics and alumni dislike it (especially as you pluralized each group). If the desire was to show different opinions on the matter a pro/con from each group may be a better.

I hope this doesn't come across as too confrontational or nit picky, I'm just curious how controversial it really is outside of the "usual suspects" who are prone to such idiotic verbiage
posted by edgeways at 1:04 PM on July 20, 2011

Meanwhile in this case, woman has evidence - two confessions from the assailant - but district attorney won't prosecute because she has bipolar I.

...according to the woman. The DA's office flatly denies it. There's far too little information in the story to be able to draw a meaningful conclusion about what happened; some of the worst journalism I've ever seen.
posted by anigbrowl at 1:07 PM on July 20, 2011

These aren't criminal proceedings, so this is definitely not what is happening here.

I think the point is that if you're trying to figure out if someone is guilty of a particular act that doesn't produce a lot of reliable evidence, the solution is not to make the burden of proof less for that particular act. Especially from the defense standpoint, it seems like a bad deal. There's not much the defendant can do to present evidence that they didn't do it, and on top of that the prosecution doesn't even have to prove that they did it, just present enough evidence to make it seem more likely that they did it than they didn't do it. It's going to increase the amount of people found guilty by the court, but doesn't do anything to address the fact that it is very difficult to determine someone's guilt of those particular acts in the first place.

It's an extreme case, but look at the one from this previous FPP. Without the evidence proving he was innocent, it would have been very hard for him to show that he couldn't have done it, but it also would have been difficult for the prosecution to hang their entire case on testimony from the victim and still prove it beyond a reasonable doubt without any kind of indisputable evidence. If you drop it down to to preponderance of the evidence, then as long as it's more probable that the victim was telling the truth than the victim was lying, that's basically enough to be found guilty.
posted by burnmp3s at 1:08 PM on July 20, 2011 [2 favorites]

Do you have any anti positions from groups/people that aren't conservative as hell?

For what it's worth, this is not really true. Here is the board of FIRE. It would take a remarkable definition of 'conservative as hell' to encompass people like Harvey Silverglate, the vice-chairman of the organization.
posted by dsfan at 1:08 PM on July 20, 2011 [1 favorite]

screw around when the rules weren't clear and women, you might get raped, and men, you might get accused of rape.

And these are equal?
posted by wayland at 1:09 PM on July 20, 2011 [6 favorites]

Unfortunately it's just going to get a few extra guys tossed into the 'you raped me!' trash-heap--and on their academic record, at that--because they were too excited to realize they were too close to the line of consent/lack of consent with some poor girl.

Yes, pity the poor guys who accidentally rape. One couldn't just expect the woman to be awake and actually consenting, that would shift the balance so much.
posted by jeather at 1:09 PM on July 20, 2011 [16 favorites]

"klangklangston: that only makes sense (and barely there) if these were actually Title IX cases, which they aren't. (If I am wrong about that, somebody please correct me.) As this is a matter of scholastic discipline, sure, whatever. Do what you need to to make things safer, and hope those measures help. But as an actual policy argument, this doesn't hold up. You don't create a special class of crime where the defendant is no longer innocent until proven guilty, simply because of the likely nature of testimony involved."

Sorry, I wasn't clear. Currently, the Department of Education's Office for Civil Rights sets broad evidentiary policy for student judicial processes, and has as a baseline the preponderance of evidence standard, e.g. if there is a case in which a student is being discriminated against on the basis of race, that student only needs to show a preponderance of evidence to win. Sexual misconduct is the only class that was held to a higher evidentiary standard; now that is no longer true, as sexual misconduct — having always been a violation of Title IX, which affects school funding — has been realigned to be congruent with the evidentiary standards of other infractions in its class.

So, this isn't a special class, it's the removal of a special class. Treating it as a special class is as specious as claiming that gays want special rights instead of equal rights. Arguing that this changes a defendant's right to be considered innocent until proven guilty is a total canard, as that's a cliche that applies primarily to criminal cases, and further, the defendant would still be considered innocent until proven guilty, they just wouldn't have to be proven guilty beyond a reasonable doubt.
posted by klangklangston at 1:09 PM on July 20, 2011 [21 favorites]

When accusations of rape start flying around, you need some kind of inquisition into the event. Getting raped is horrible, I would imagine, and the rapist ought to be brought to trial. If it was sexual assault or harassment it still needs to be addressed and the accused given a trial, etc, though the guy would certainly appreciate the word 'rape' being removed in favor of what actually happened.

Also, is the victim blaming that happens in national media as prevalent in college papers? I can imagine the high-school feel of social circles getting in the way of proper reporting.
posted by Slackermagee at 1:14 PM on July 20, 2011

"The old burden of proof kept the balance of risk pretty equal: screw around when the rules weren't clear and women, you might get raped, and men, you might get accused of rape. Now it's shifted pretty favorably to favor women. This is a lose-lose: I think this will not prevent gray area cases/rapes and will only cause more men trouble after the fact who didn't behave rationally and consider the consequences when in those gray areas."

That's a pretty weird view of balanced, and one I might suggest displays a bit of privilege in its construction. Getting raped is probably a bit worse than being accused of rape, especially since that accusation had to be backed by evidence beyond a reasonable doubt.

If one is worried, more communication with the partner generally clears things up on the "consent" issue. Or, as a facetious suggestion, you can always just tape it.
posted by klangklangston at 1:15 PM on July 20, 2011

And these are equal?

Not equal at all; one is a personal consequence of risky behavior, one is a legal consequence of vile, illegal behavior. But now I think the balance is shifted too far, that's all.

Yes, pity the poor guys who accidentally rape. One couldn't just expect the woman to be awake and actually consenting, that would shift the balance so much.

I should have clarified that I'm talking about the gray area cases where kids have been drinking too much (am I wrong to assume this accounts for the overwhelming majority of college-age--that's what we're talking about here--sexual assault situations? ...maybe I am).
posted by resurrexit at 1:16 PM on July 20, 2011

It would take a remarkable definition of 'conservative as hell'

As far as I can see, "conservative as hell" is a lot fairer than "civil liberties organization," as this post tendentiously calls it. If FIRE wants people to treat it like a "civil liberties organization," then it needs to stop acting like a right-wing advocacy group that occasionally uses a left civil liberties case (e.g. Ward Churchill) as a smokescreen to put some ideological breathing room between itself and hard-right groups like ACTA or NAS. It's pretty clear, though, that FIRE's real bread-and-butter issues are opposition to campus hate-speech codes and sexual harrassment rules, and that it's driven far more by the desire to wage anti-"PC" Kulturkampf than by any serious civil-liberties stance.
posted by RogerB at 1:16 PM on July 20, 2011 [1 favorite]

that only makes sense (and barely there) if these were actually Title IX cases, which they aren't. (If I am wrong about that, somebody please correct me.)

The position of the OCR seems to be that they, in fact, are. Or are close enough to mandate this policy change. And that's where a lot of the clash lies, cutting through hyperbospeak.

Do you have any anti positions from groups/people that aren't conservative as hell?

Those damn conservatives, shoving Ward Churchill, some socialist's atheist poetry and PETA down our throats! Civil libertarians are far different than conservatives.

Edgeways, not confrontational at all. I tend to trust FIRE, because their Bill of Rights absolutism isn't liberal or conservative. As with most issues, I trust the students over the alumni. And the OCR, the University and Biden all support the measure as well. Reaction often gets the most focus though, because they grabbed the megaphone first. I tried to provide as much of the well-written spectrum as possible here.
posted by Chipmazing at 1:18 PM on July 20, 2011

Bill of Rights absolutism isn't liberal or conservative

wha
posted by beefetish at 1:20 PM on July 20, 2011

Not equal at all; one is a personal consequence of risky behavior, one is a legal consequence of vile, illegal behavior.

I'm glad we agree that rape is vile and illegal, and that placing oneself in situations where consent is dubious or difficult to establish is risky and irresponsible.
posted by mek at 1:20 PM on July 20, 2011 [2 favorites]

I should have clarified that I'm talking about the gray area cases where kids have been drinking too much

I somehow am unconvinced that being drunk excuses you from any crimes you commit when drunk. But I do not think that most sexual assaults on campus are those when both people involved are completely drunk, which are grey area cases.
posted by jeather at 1:22 PM on July 20, 2011 [2 favorites]

klangklangston, thanks for pointing out that the previous standard was the inconsistent one. And I wonder why that was.
posted by Danila at 1:23 PM on July 20, 2011 [2 favorites]

It's pretty clear, though, that FIRE's real bread-and-butter issues are opposition to campus hate-speech codes and sexual harrassment rules

I don't think FIRE is oppose to sexual harassment rules. They're just opposed to ones that only require a preponderance of the evidence.

And when have civil liberties organizations not been against hate speech codes. Last time I looked, the ACLU still defended Westboro Baptist.
posted by sbutler at 1:27 PM on July 20, 2011 [1 favorite]

Yes, they're not criminal proceedings so they're not creating a separate class of crime. But the letter from the Department of Education lays out the reasoning.

1) Sexual violence is a form of sexual harassment.
2) Sexual harassment is a form of discrimination under Title IX.
3) The legal standard of evidence for Title IX cases is preponderance of evidence.

From a legal point of view, the university is potentially liable if they set a higher standard for disciplining sexual harassment than they would face in the courts.

It's also important to remember that the university is empowered to deny service in other non-criminal cases such as cheating, plagiarism, misuse of campus resources, and serving alcohol on campus. The primary difference here is that the university, like every other business in the United States, is legally obligated to take sexual harassment seriously. Unlike most businesses in the United States, Stanford has an anonymous and confidential process for determining disciplinary action.
posted by KirkJobSluder at 1:28 PM on July 20, 2011 [5 favorites]

klang, thanks for clarifying. I don't understand at all why sexual assault would be the only misconduct held to a higher standard by the school, but that makes this make a lot more sense (and make any real sense from a Title IX perspective.)

As for the "creating a new class," I was speaking directly to the constant argument that I hear come up for this policy in terms of criminal law (it would almost certainly be struck down if it were implemented anywhere, but I hear the argument come up more often than you'd think.) Sorry that I wasn't clearer.
posted by Navelgazer at 1:29 PM on July 20, 2011

I don't think FIRE is oppose to sexual harassment rules. They're just opposed to ones that only require a preponderance of the evidence.

Which is the entire American legal system, since sexual harassment is a civil liability tort.
posted by KirkJobSluder at 1:29 PM on July 20, 2011 [2 favorites]

klang, could you link to where you're getting this information regarding the different standards? I know the perponderance of the evidence would be the standard in a civil case of race discrimination, but everything I was finding made it sound like beyond a reasonable doubt is the standard in all other Stanford student disciplinary hearings, so in that sense it is creating a special standard for that offense.
posted by Bulgaroktonos at 1:30 PM on July 20, 2011

Sorry, I wasn't clear. Currently, the Department of Education's Office for Civil Rights sets broad evidentiary policy for student judicial processes, and has as a baseline the preponderance of evidence standard, e.g. if there is a case in which a student is being discriminated against on the basis of race, that student only needs to show a preponderance of evidence to win. Sexual misconduct is the only class that was held to a higher evidentiary standard; now that is no longer true, as sexual misconduct — having always been a violation of Title IX, which affects school funding — has been realigned to be congruent with the evidentiary standards of other infractions in its class.

I have not dug into this topic in detail, but it strikes me that civil rights infringements and discrimination cases often revolve around the institution vs. the individual. For example, if students are discriminated against in academic matters, access to campus facilities or the like, the discrimination is only possible because the faculty or administrative staff hold power over the student. But if one student encounters another in the middle of the campus and utters some ethnic slur, the target of that might well be offended but has not necessarily experienced an infringement of civil rights because the offending student has no particular jurisdiction or authority over the other.

If the new standard were being applied to cases of sexual misconduct where faculty members or other employees of the institution were leveraging a position of privilege to engage in sexual activities with reluctant students or more junior employees, then I wouldn't really see any issue here. But if one student accuses another of what is effectively a criminal act (even if the proceedings within the university are not conducted as criminal trials), then the elements of institutional discrimination or misuse of institutional privilege are absent, and the two students are essentially on a level playing field. This is a question of tort rather than civil rights infringement, and it doesn't seem appropriate to apply a standard for regulating institutional behavior to disputes about the behavior of an individual.

The 'preponderance of the evidence' standard would seem more appropriate in cases where a victim of sexual assault was suing the university for failing to provide adequate protections such as campus security, or medical staff trained to evaluate, report and treat episodes of sexual assault, or equivalent institutional shortcomings that left the victims of such crimes at a disadvantage relative to the victims of other crimes, such as theft or simple assault.
posted by anigbrowl at 1:36 PM on July 20, 2011 [5 favorites]

I've always been tickled by the fact that the word tendentious is usually used tendentiously. Meta-language, yo.
posted by Chipmazing at 1:39 PM on July 20, 2011

It is NOT only men who harass. The female director of Residence Life at the first college I attended was doing so to me and other women students my last semester there.

The man who was the college president at the time told me some years later that she was "let go for performance".
posted by brujita at 1:42 PM on July 20, 2011 [1 favorite]

anigbrowl, if I'm understanding klang's information, the "institutional" issue here is that the standard was reasonable doubt for this misconduct, and preponderance of the evidence for all other misconducts. As such, activities which disproportionately cause injury to women on campus were being adjudicated on a different standard than those that didn't. Thus, it becomes a Title IX issue, because women weren't receiving the same level of protection as the student body as a whole. So Stanford determined that in order to continue receiving federal funding, it needed to bring the standard for sexual misconduct in line with all other misconducts. It's actually pretty uncontroversial when framed this way.
posted by Navelgazer at 1:45 PM on July 20, 2011

If you carry the world view that false sexual assault allegations are commonplace, then don’t do anything that would make a woman want to file one against you. They don’t just come out of the blue. Think about cutting down on sex with blackout strangers. Maybe reduce the number of sexist insults you use whenever you get in an argument with a romantic attachment.

burnmp3s already pointed this out, but I think it's worth reiterating. nooneyouknow, if you support this based on the people who oppose it, does that mean you agree with people who certainly seem to argue that women should use false rape accusations in retribution for sexist insults.
posted by Candleman at 1:46 PM on July 20, 2011 [1 favorite]

"1) Sexual violence is a form of sexual harassment.
2) Sexual harassment is a form of discrimination under Title IX.
3) The legal standard of evidence for Title IX cases is preponderance of evidence."

#1 is a pretty ignorant statement and I just don't see how you can consider violence to be the same thing as discrimination or harassment. It's violence. If you want to try someone for discrimination you don't start lowering the evidentiary standards for violence. You try them for discrimination.
posted by ged at 1:47 PM on July 20, 2011 [1 favorite]

anigbrowl, if I'm understanding klang's information, the "institutional" issue here is that the standard was reasonable doubt for this misconduct, and preponderance of the evidence for all other misconducts.

The thing is, klangklangston might have said this, but I don't think it's true. The Student Judicial Charter, which governs disciplinary proceedings other than sexual misconduct, includes the right to be proven guilty beyond a reasonable doubt as one of the right of the accused. So, I think now, if I'm accused of plagarism, I have to be proven guilty beyond a reasonable doubt, but not if I'm accused of rape, which is an inconsistent standard.
posted by Bulgaroktonos at 1:50 PM on July 20, 2011 [1 favorite]

A case where this has led to a Kafkaesque result:

To play devil's advocate, there is a clear example of bias both in your account and the linked account. It's just as possible the police are wrong and the campus justice system made the correct decision.

mek, to play devil's advocate, this would still be a Kafkaesque result.
posted by IAmBroom at 1:52 PM on July 20, 2011 [1 favorite]

anigbrowl: Both employers and educational institutions are obligated to have disciplinary procedures for sexual harassment. If those disciplinary procedures fail, then it becomes a civil rights action between the victim and the institution.

Also, the disciplinary action involved here is between the student and the university. Student violates the honor code, the university decides if that student should continue to receive privileges and services. See the Brandon Davies case as an example of a university with a stricter honor code regarding sexual behavior.

ged: Certainly, but we're not talking about criminal law. We're talking about 1) violations of the Standford Honor Code and 2) sexual harassment under Title IX. See Oncacle as a precedent.
posted by KirkJobSluder at 1:54 PM on July 20, 2011 [1 favorite]

The thing is, klangklangston might have said this, but I don't think it's true.

klangklangston clearly wrote that the DOE's Office of Civil Rights uses preponderance of evidence across the board.
posted by KirkJobSluder at 1:57 PM on July 20, 2011

To add on to what I just said, I also looked up the Student Disciplinary Code for the last institution where I was a student, and it set a clear and convincing evidence standard generally, but had a notice indicating that to comply with Title IX, in all sexual misconduct or harrassment cases the standard would be perponderance of the evidence.

I think, but am not sure, that's what's going on here is that Title IX(at least as the Department of Education understands it) requires the lower standard in sexual harassment cases, since Title IX doesn't cover say, plagarism, that standard remains where the university sets it, which tends to be higher.
posted by Bulgaroktonos at 1:58 PM on July 20, 2011 [2 favorites]

"If the new Standard of Proof bothers you, there’s an easy solution: don’t sexually assault people"

I support harsh punishments for sexual assault, but this is very poor logic.
posted by Avenger at 1:58 PM on July 20, 2011 [2 favorites]

As an example, if you read through the (dry and boring) policy guidance from the OCR regarding racial harassment, a preponderance standard is what they use (essentially — it's three tests based on allegation, defense, rebuttal).

And as a side note, that policy guidance also makes it clear that racial harassment requires affirmative action, including school codes of conduct (under which school judiciaries fall). I haven't read the disability or age ones yet, but this is all under the massive Civil Rights Act, with race and national origin falling under Title VI.
posted by klangklangston at 2:08 PM on July 20, 2011

"#1 is a pretty ignorant statement and I just don't see how you can consider violence to be the same thing as discrimination or harassment. It's violence. If you want to try someone for discrimination you don't start lowering the evidentiary standards for violence. You try them for discrimination."

All poodles are dogs, but not all dogs are poodles. Sexual violence is a subset of sexual harassment, even if it could reasonably be described as the most severe or dangerous.
posted by klangklangston at 2:11 PM on July 20, 2011 [3 favorites]

Looks like Cornell has a "preponderance of evidence" standard (first paragraph of p. 23.) I don't pay a whole lot of attention to internal Cornell drama, but we don't seem to be drowning in unjust allegations of sexual harassment.
posted by Coventry at 2:11 PM on July 20, 2011 [1 favorite]

As an example, if you read through the (dry and boring) policy guidance from the OCR regarding racial harassment, a preponderance standard is what they use (essentially — it's three tests based on allegation, defense, rebuttal).

Thanks for that, I get what you're saying now; it looked (to me) like you were claiming that the OCR required all student disciplinary proceedings except sexual harassment allegations to be judged on preponderance, since that's obviously not true(schools are free to set their own standards for things like plagarism), I was confused.

Instead, it looks like there are two standards, preponderance(for all stuff OCR cares about) and whatever the school wants(for everything else), which I don't really like, but isn't horrible.
posted by Bulgaroktonos at 2:15 PM on July 20, 2011 [1 favorite]

The significance of Onacle is that the SCotUS didn't even question whether the alleged sexual assault cleared the "reasonable person" hurdle of defining sexual harassment.

Note, here's the Stanford Fundamental Standard.
posted by KirkJobSluder at 2:24 PM on July 20, 2011

Here's how I read opposition to this change in rule:

There is an unspoken, underlying belief that college is where you go to have promiscuous sex and get laid by a bunch of people. The belief that having lots of sex in college is part of the norm.Therefore, if kids are just having sex for fun, then this preponderance of evidence thing will make it seem like if a girl lies that she was raped by a guy as some sort of revenge, then he will be punished for doing what college kids do.

Now then, I sound pretty puritanical here. I actually believe that you can fuck whomever you want, whenever you want, so long as it is clearly consensual. How clear? I don't know, but, for the most part, if there's a chance the person is going to be upset and report you for rape afterwards, then it wasn't clear enough.

Use common sense. If things are cloudy, think twice. Is she so drunk she has trouble driving? Think twice. Does she say "no" at any point in time? THINK TWICE. Is she saying NOTHING at all and does not seem very much into it? Fucking think twice, already. Are you putting your penis somewhere that she was not expecting it? It's not funny or sexy. Think twice.

There is this straw woman that exists in the minds of everybody who 100% consented to sex, asked for it, practically forced herself on the dude, but later decided that she wanted to exact revenge on the guy so accuses him of rape. Does this woman exist? I have never met her. I'm sure I will hear stories.

And here is where I start sounding really puritanical: sex should not only be consensual, but mutually respectful. Meaning, it should be a respectful act. If you are doing it because you are selfishly trying to please only yourself and you don't care what the other person is thinking, then you are doing it wrong. And don't be surprised if you get accused of doing something wrong when you do this in college.
posted by jabberjaw at 2:29 PM on July 20, 2011 [14 favorites]

Is she so drunk she has trouble driving? Think twice. Does she say "no" at any point in time? THINK TWICE. Is she saying NOTHING at all and does not seem very much into it? Fucking think twice, already. Are you putting your penis somewhere that she was not expecting it? It's not funny or sexy. Think twice.

Actually all those circumstances should be: don't think about doing anything but stopping immediately.
posted by kmz at 2:38 PM on July 20, 2011 [2 favorites]

Something which is not a criminal trial will no longer use the standards which are usually restricted to criminal trials.

In other words, the school will only be able to kick you out for raping someone if they have the amount of evidence used in the civil trial which found OJ Simpson "guilty," rather than the criminal trial which found OJ Simpson innocent.

I'm cool with that.
posted by edheil at 2:43 PM on July 20, 2011

I could get behind this change to the burden of proof if it actually had a chance to cut down on undergraduate hookups or caused young men to treat women more respectfully and not objectify them, etc. But we're talking about college kids and sex here. Unfortunately it's just going to get a few extra guys tossed into the 'you raped me!' trash-heap--and on their academic record, at that--because they were too excited to realize they were too close to the line of consent/lack of consent with some poor girl.

But hookups are not the problem, if they're consensual. College kids are adults, and it's not my business, or yours, who they have sex with or how often, provided everyone involved is consenting.

And I also will call out this "She told me yes and then said I raped her!" straw-woman. I'm not saying it's never happened, and it's not impossible, but I never heard of it happening, though I've heard lots of people swear it happened to a friend. But then lots of people also swear they know the old lady who put her poodle in the microwave.

To be honest, the most likely scenario for the false-rape accusation is in an environment where it's considered shameful for women to have and enjoy sex or to face punishment for doing so. Otherwise, they really don't have a motive to go after the guy they just slept with. It's not like filing a rape accusation is a Fun Time for Ladies, you know. You don't do it on your way to the tanning salon for shits and grins.
posted by emjaybee at 2:51 PM on July 20, 2011 [5 favorites]

There is this straw woman that exists in the minds of everybody who 100% consented to sex, asked for it, practically forced herself on the dude, but later decided that she wanted to exact revenge on the guy so accuses him of rape. Does this woman exist? I have never met her. I'm sure I will hear stories.

The previous FPP I linked to above involved a guy who was proven to be miles away when the alleged rape was supposed to have happened. I have no idea what percentage of rape cases are completely made up, probably an extremely low number, but the concept of someone making up rape charges is not a myth. Other than that I agree with you that clear consent (and I would argue enthusiastic consent) should be the expected standard in random college hookups. That is more advice about how to avoid sexual assault itself though, not advice about how to avoid a situation where "a girl lies that she was raped by a guy as some sort of revenge."
posted by burnmp3s at 2:52 PM on July 20, 2011

I find that this discussion dovetails nicely with an essay by Amanda Marcotte on the topic of sex being viewed as a transaction between buyers and sellers.

I realize that we're discussing rape, so the critical question is in fact "consent", not "enthusiastic participation", but the idea of sex as transactional, the idea that it's a matter of negotiation and some men cross the line by overly aggressively negotiating still seems to be a deep part of the problem.

Here's the thing: consent to sex should be the absolute, rock bottom, minimum people go for. Speaking personally I can't imagine having sex with a woman if the best that could be said of the encounter was that she consented. What sort of lousy sex is that? I don't want consent, I want bedbreaking, floorboard pounding, enthusiasm in my partner!

Which is a problem, because sex is still mostly viewed as something men get out of women, rather than something that men and women do together because they like it.

As for the specific issue at hand, I'm not seeing a problem. The school is not a court of law, it can not impose criminal penalties, why should it hold itself to higher standards than civil courts do?

I'll further point out that rape is not a crime with universally female victims, nor universally male perpetrators. While men are less frequently the victims of rape, they are hardly immune to the crime, and I'd like to hope that the loosening evidential standards might encourage more victims of sexual assault, both men and women, to come forward.
posted by sotonohito at 2:53 PM on July 20, 2011 [16 favorites]

As for the specific issue at hand, I'm not seeing a problem. The school is not a court of law, it can not impose criminal penalties, why should it hold itself to higher standards than civil courts do?

The argument I would make is that while it doesn't impose criminal penalities, it impose penalties that are more serious than the monetary awards that are (typically) at issue in civil cases; if you told me I had to pay someone a large sum of money, there are things I could do to get that done, but you can't be unexpelled. That's why earlier I said that I thought clear and convincing evidence seemed appropriate; if I were in charge of a university and didn't have to deal with OCR rules, that's where I'd put it.
posted by Bulgaroktonos at 3:04 PM on July 20, 2011 [1 favorite]

Can the "judicial" process of university systems really offer anything close to "beyond a reasonable doubt" or even "clear and convincing" within the constraints of a process that's usually anonymous, confidential, and lacking many of the investigatory powers of due process, even for civil trials?

Ultimately what we're talking about here is a committee looking over competing claims with the ultimate penalty being expulsion, and appeal to another committee.
posted by KirkJobSluder at 3:04 PM on July 20, 2011 [3 favorites]

The previous FPP I linked to above involved a guy who was proven to be miles away when the alleged rape was supposed to have happened. I have no idea what percentage of rape cases are completely made up, probably an extremely low number, but the concept of someone making up rape charges is not a myth.

It does happen, but usually in a greater context - eg. a custody battle. After a random hookup, not so much.
posted by mek at 3:07 PM on July 20, 2011

As for the specific issue at hand, I'm not seeing a problem. The school is not a court of law, it can not impose criminal penalties, why should it hold itself to higher standards than civil courts do?

My understanding is that many if not most of the schools involved don't want to hold themselves to the 'preponderance' standard, generally viewing 'clear and convincing' as more appropriate. The issue isn't whether it should 'hold itself' to this standard, but what it should be forced to do by the government in exchange for accepting funds.
posted by dsfan at 3:08 PM on July 20, 2011 [1 favorite]

Oh, one other thing. The comparison with civil trials is inapt in an important way. If I'm the defendant in a civil matter, I'm entitled to discovery and cross-examination of witnesses. The OCR letter, on the other hand, "strongly discourages schools from allowing the parties personally to question or cross-examine each other" during proceedings. So, despite the consequences being likely more severe than a civil matter, as Bulgaroktonos said, the accused actually has significantly less rights.
posted by dsfan at 3:13 PM on July 20, 2011 [2 favorites]

The idea of an accusation of rape being dealt with by a student judiciary in the first place is what blows my mind. Do they also handle murder? Rape accusations should be handled in a court of law, period.
posted by jfuller at 3:28 PM on July 20, 2011 [6 favorites]

How are the consequences more severe than in a civil matter? Students do not have a right to continued enrollment. And in having a (usually) confidential and anonymous grievance procedure, universities go above and beyond what I can expect from the local convenience store, which has a rogues gallery of security cam footage of customers suspected of passing bad checks, short-change cons, and walkouts.

jfuller: Rape accusations should be handled in a court of law, period.

The law is perfectly clear that educational institutions and employers are obligated to respond to complaints of violence and/or harassment. Should they fail to do so, they can be held liable.
posted by KirkJobSluder at 3:41 PM on July 20, 2011

So presumably there have been a number of sexual assaults which resulted in no conviction (do you use the word conviction here?) because of the high standard of evidence required and lowering the standard will result in more convictions. And also the old standard of evidence was high enough that it was deterring reports of sexual assaults.

Seeing as Stanford's apparently late to the game on this ("It brings Stanford into line with the vast majority of universities that use the lower standard for sexual assault cases, an issue on which Stanford has been an outlier for years"), I would guess that this change has increased the reporting of sexual assault and the rate of successful trials at other institutions? I'm looking through the links, but haven't found anything yet.

Are there some concrete examples of what this might actually mean when dealing with such a case? I'm hearing people talk about how with sexual assault it often comes down to "he said/she said", but in my limited understanding of "preponderance of evidence" I don't really see how that would change much.
posted by ODiV at 3:42 PM on July 20, 2011 [1 favorite]

The idea of an accusation of rape being dealt with by a student judiciary in the first place is what blows my mind. Do they also handle murder? Rape accusations should be handled in a court of law, period.

They can be handled both places; the court determines if you're guilty(and thus subject to criminal punishment) the student judiciary determines if you get kicked out of school, which the criminal court can't really do.

Actually as an aside, I had a co-worker who was involved in a student rape case once; it could have involved three total court-type proceedings: the criminal case, the student disciplinary proceeding, and the victim's application for a restraining order(based on the rape and other conduct).
posted by Bulgaroktonos at 3:44 PM on July 20, 2011

anigbrowl: Both employers and educational institutions are obligated to have disciplinary procedures for sexual harassment. If those disciplinary procedures fail, then it becomes a civil rights action between the victim and the institution.

Quite; what I am not certain about is whether Title IX really mandates 'preponderance of the evidence' as the maximum burden of proof applicable in campus judicial evaluations of intra-student sexual misconduct.

For context, here are the Department of Education guidelines on Title IX as it applies to educational institutions. This is also available in pdf form at the right of the page (and which I will use for citing page numbers, footnotes from here on). The letter focuses specifically on cases of intra-student (n.10) sexual harrassment (p.3) and includes gender harrassment (n.9) which can include harassing conduct of a non-sexual nature that is nonetheless gender-based...an interesting issue in itself, but one which might prove a distraction here.

It seems Stanford's lawyers are relying on this passage from page 11:

Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.

Note that this addresses the grievance procedure to determine whether a complainant's allegation of a hostile environment exists, not the disciplinary procedure against the alleged perpetrator. Where an investigation determines that an actual crime has occurred, the institution is required to report that to the police. But as far as remedies for the existence of a hostile environment go, they are focused on the mitigation of the danger to the complainant, rather than punishment of the alleged perpetrator (such as expulsion). Suggested remedies (on p 16-17) include:

providing an escort to ensure that the complainant can move safely between classes and activities;
• ensuring that the complainant and alleged perpetrator do not attend the same classes;
• moving the complainant or alleged perpetrator to a different residence hall or, in the case of an elementary or secondary school student, to another school within the district;
• providing counseling services;
• providing medical services;
• providing academic support services, such as tutoring;
• arranging for the complainant to re-take a course or withdraw from a class without penalty, including ensuring that any changes do not adversely affect the complainant’s academic record; and
• reviewing any disciplinary actions taken against the complainant to see if there is a causal connection between the harassment and the misconduct that may have resulted in the complainant being disciplined.
Now, you might argue that expulsion is the least of the penalties someone should face if an investigation finds a high probability that an episode of sexual violence occurred in which that person is alleged to be the perpetrator.

But per notes 5 & 38, a forcible sex offense as defined by the Clery act includes 'any sexual act directed against another person forcibly or against that person’s will, or not forcibly or against the person’s will where the person is incapable of giving consent.' (emphasis added) Per page 1, there is a presumption that any drug and alcohol use render individuals incapabale of giving consent & per page 15, 'OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations [ie drug/alcohol use] will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence.' And per page 3 'Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX.' The questions of scope a severity necessary to create a hostile environment are further explored on page 3 and in note 10. Not only that, but (per page 4) the unwanted sexual activity need not take place on the school campus, and the complaint need not even be brought by a student, but may be lodged by a parent or third party who feels that a hostile environment exists at the school whether or not the supposed victim thinks so.

The problem here, in my view, is that the definition of sexual harassment has been broadened to the point of making compliance virtually impossible, at least insofar as it relates to intra-student sexual activity, the specific subject of this letter. Under these guidelines, if student A consumes alcohol or drugs and later makes out with student B. who grabs student A's butt - let's say this makeout session is widely witnessed, to remove questions of credibility - then student A can claim to be the victim of a forcible sex act carried out by student B. Student A has consumed alcohol and is thus incapable of giving consent, while student B has engaged in intimate touching by squeezing student A's butt - regardless of who proposed or initiated the making out, and regardless of whether student B has consumed drugs or alcohol. Absent a breathalyzer and possibly a signed consent form, it's virtually impossible for student B to gainsay allegations of misconduct by student A, and in order to ensure that student A is not subjected to a hostile educational environment (and thus, loss of federal funding), the institution is required to do everything it can to keep the two apart. Naturally, expulsion of student B becomes the simplest method for achieving that, even though student B's conduct may not rise to the threshold of criminal activity at all; unfortunate for student B, but failure to do so places the educational institution's funding at risk, and thus its mission, so student B is likely to be expelled so as not to disenfranchise the student body as a whole.

This is a real problem. Not because I support rape or sexual harassment in any fashion, but because (as bulgaroktonos points out), the burden of proof against an alleged perpetrator of such harassment is so inconsistent. Whereas a charge of theft or nonsexual violence (eg a punch in the nose) would require proof beyond a reasonable doubt in order to expel a perpetrator or place the person on academic probation, any student who has a drink or a toke is effectively in a liability-free zone which allows for a retroactive determination of of whether a forcible sexual assault took place.

Coupled with the well-established thin skull rule of tort liability, it would not matter at all whether student B knows that student A has consumed any alcohol or drug which impairs the ability to give consent, or whether student B is aware that student A is a student at the same educational institution, or even whether student A is in fact delighted to be the recipient of student B's sexual advances, but student A's parent/friend/classmate - who we'll call party C - disapproves of student B's sexual activity with student A and claims on student A's behalf that student B committed a forcible sexual act against student A due to student A's impaired ability to grant consent, and that absent by the institution, party C considers a hostile educational environment to exist. The scope for abuse by those with authoritarian or jealous motives is obvious, the standard for determination of fault is low, and the incentives for higher ed institutions to comply with the same standards applied to k-12 schools (despite the widely different situation of the students) are so high as to create a perverse incentive against allowing any kind of sexual contact whatsoever to occur between students. This is, in effect, a legal chastity belt that can be affixed to any attendee or visitor to an educational institution for the duration of their academic involvement.

posted by anigbrowl at 4:09 PM on July 20, 2011 [4 favorites]

I could get behind this change to the burden of proof if it actually had a chance to cut down on undergraduate hookups or caused young men to treat women more respectfully and not objectify them, etc. But we're talking about college kids and sex here. Unfortunately it's just going to get a few extra guys tossed into the 'you raped me!' trash-heap--and on their academic record, at that--because they were too excited to realize they were too close to the line of consent/lack of consent with some poor girl...

And I also will call out this "She told me yes and then said I raped her!" straw-woman. I'm not saying it's never happened, and it's not impossible, but I never heard of it happening, though I've heard lots of people swear it happened to a friend. But then lots of people also swear they know the old lady who put her poodle in the microwave.

To be honest, the most likely scenario for the false-rape accusation is in an environment where it's considered shameful for women to have and enjoy sex or to face punishment for doing so. Otherwise, they really don't have a motive to go after the guy they just slept with. It's not like filing a rape accusation is a Fun Time for Ladies, you know. You don't do it on your way to the tanning salon for shits and grins...

The previous FPP I linked to above involved a guy who was proven to be miles away when the alleged rape was supposed to have happened. I have no idea what percentage of rape cases are completely made up, probably an extremely low number, but the concept of someone making up rape charges is not a myth...

It does happen, but usually in a greater context - eg. a custody battle. After a random hookup, not so much...

There seem to be a lot of claims flying around. I'm not familiar with this subject, can someone provide some real examples plz?

I think this thread would benefit from people making a concerned effort to provide examples in which people (not necessarily men) were falsely accused, or falsely convicted of, sexual violence . Preferably cases in which a lower standard of evidence precipitated such accusations. Even better would be an analysis of sexual violence statistics. Otherwise people are going back and forth on opinions and anecdotes and claims.

I'm not all that knowledgeable about such cases, its late here, and I'm low on data credit. Is someone else up to the task?
posted by justalisteningman at 4:34 PM on July 20, 2011

anigbrowl: As far as I know, the standard for defining sexual harassment is still the "reasonable person in the position of the plaintiff" standard, with a preponderance of evidence standard overall. This was explicitly addressed in the decision of Onacle which pointed out that butt-slapping at a men's football game probably wouldn't be harassment in context, but the actions alleged in Onacle certainly was. The hypothetical argument about legal incapacity strikes me as both ridiculous and unrealistic, as defendants have successfully been acquitted even with video evidence that the victim was unconscious in the act. It doesn't even come within the ballpark of a preponderance of evidence standard.

If it did, the university has a range of possibilities to handle the range of sexual misconduct/harassment from drunken butt-fondling or (to use an authentic example) a horde of pledges drunkenly cat-calling a sorority in the wee hours of the morning, to claims of forcible sexual assault.

Meanwhile, we have the example of Brigham Young expelling a students for violating a religious code of conduct regarding pre-marital sex.
posted by KirkJobSluder at 4:40 PM on July 20, 2011

She may, or may not have a valid argument, but is hardly a neutral commentator.

She is also, not being a part of the academy, not an "academic scholar". (She's a fellow of the American Enterprise Institute.)
posted by kenko at 4:42 PM on July 20, 2011 [2 favorites]

The problem is that there are no statistics which are widely agreed upon. Studies that claim a very low incidence of false claims are accused of feminist bias, studies that find a higher incidence (or a lower ratio of allegations to convictions) are accused of being tainted by rape culture in which victims are discriminated against. If there were methods of objectively determining the validity of a rape or sexual assault allegation that would be great, but a large number of cases come down to a dispute about whether or not consent was granted. Not only is it possible for parties to lie in such a situation, it's possible for both parties to tell the truth as they believe it and still disagree about what happened.
posted by anigbrowl at 4:43 PM on July 20, 2011 [1 favorite]

Sommers apparently likes to complain about the marginalization and small number of conservative scholars in the academy, which makes one wonder why she left her tenured position in the academy.
posted by kenko at 4:51 PM on July 20, 2011

Kirkjobsluder, I don't mind you suggesting that my hypothetical is ridiculous or unrealistic, but if you do you should explain where. Invoking an outcome in a criminal trial (where a reasonable doubt standard was used) to wave away the possibility of a different outcome using the much lower preponderance standard is disingenuous. I have cited the specific guidelines used by the OCR at every stage, and I don't think it's asking too much for you to point out the specific shortcomings you see in my argument.
posted by anigbrowl at 4:56 PM on July 20, 2011

Ontario is the only place I know of that keeps stats on false sexual assault claims. It's 5-6% of all sexual assault claims here, though controlling for certain variables increases or decreases the likelihood of it being false (kids lie about being abused more often than adults; people who claim to have been raped by total strangers lie more often than people who claim to have been raped by people they are acquainted with).
posted by Pseudoephedrine at 5:05 PM on July 20, 2011

> The law is perfectly clear that educational institutions and employers are obligated to
> respond to complaints of violence and/or harassment. Should they fail to do so, they can
> be held liable.
> posted by KirkJobSluder at 3:41 PM on July 20

Under what compulsion? Do you mean sued and held liable the way apartment owners could be held liable if sued for failing to provide a safe dwelling? Or do you mean under Title IX, threat being loss of federal funds? Or some other sort of liability I have overlooked? "Held liable" doesn't seem exactly the right phrase for being sanctioned under Title IX.
posted by jfuller at 5:57 PM on July 20, 2011

The case of Beckett Brennan: The government sent out guidelines on how college judicial review boards should handle incidents of campus sex assault. Beckett Brennan says a university board bungled her case, spurring her to come forward to say she was sexually assaulted by three of the school's athletes.

Unfortunate advertising alert: the video clip is "Sponsored by Viagra." Ahem.
posted by homunculus at 6:55 PM on July 20, 2011

Per page 1, there is a presumption that any drug and alcohol use render individuals incapabale of giving consent & per page 15, 'OCR recommends that schools inform students that the schools’ primary concern is student safety, that any other rules violations [ie drug/alcohol use] will be addressed separately from the sexual violence allegation, and that use of alcohol or drugs never makes the victim at fault for sexual violence.'

I don't think this is quite accurate. The first page of the Dear Colleague letter does not say (as far as I see) that any drug or alcohol use creates a presumption of incapacity. It says: Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.

So drug or alcohol use can render a person incapable of consent, but that doesn't mean it always is. It would be problematic to say that any alcohol consumption, even a sip, created a presumption of incapacity to consent, but I don't see that in the letter. Maybe that's what they mean--"can render a person incapable of consent" is compatible with "always renders a person incapable of consent"--but it isn't what they've said.

Given the difficulty of administering the one-sip standard and the existence of alternatives for determining how intoxicated is too intoxicated to consent, I think it's most likely that they are just trying to emphasize that "She said yes!" is not always enough to establish consent, and are not concerned (at least in this letter) with the associated linedrawing exercise.
posted by Marty Marx at 7:07 PM on July 20, 2011

There seem to be a lot of claims flying around. I'm not familiar with this subject, can someone provide some real examples plz?

I think this thread would benefit from people making a concerned effort to provide examples in which people (not necessarily men) were falsely accused, or falsely convicted of, sexual violence . Preferably cases in which a lower standard of evidence precipitated such accusations. Even better would be an analysis of sexual violence statistics.

You quoted my comment so I'll respond. I was talking about this case, the tl;dr version is that a man was accused of rape by his ex-wife, eventually proved that it was impossible for him to have committed the crime, and spent a long time repairing the damage (getting formally declared innocent, getting his job back, getting his parenting rights back, etc.). The reason I originally brought it up was as an example of how difficult it is for a defendant in one of these cases to provide evidence to refute the charges. I referred to it again when someone brought up the idea of a revenge seeking straw woman who falsely accused someone of rape and cast doubt on whether such a woman has ever existed.

Obviously, like suspects of any crimes, some people who are accused of sexual assault are actually innocent. According to this document, between the years of 1989 and 2003 120 people who had been previously convicted of rape were exonerated due to DNA evidence. That's probably a much lower number than the total number of people who were accused of a rape they did not commit, but it may be fairly low compared to the number of people who were accused of sexual assaults that they did commit.

I think when a person says they are a victim of sexual assault, everyone should believe them. It's much more likely that they are telling the truth than that they are lying or mistaken. Which is why I think lowering the burden of proof puts the accused person in a tough position, it's most likely that someone is guilty of sexual assault if they are merely accused of sexual assault. I don't know what the correct burden of proof is for these kinds of cases in this particular court system, but it certainly puts the people who are falsely accused in a much worse position to not require a high level of certainty when they usually don't have much evidence to support their side of the story other than refuting the accusation.
posted by burnmp3s at 7:13 PM on July 20, 2011

angibrowl: I explained where. Your hypothetical doesn't even rise to the level of "preponderance of evidence." But there are deeper problems starting with:

Per page 1, there is a presumption that any drug and alcohol use render individuals incapabale of giving consent... (emphasis added).

That's complete hogwash as page 1 says no such thing. What it says in context is: "Sexual violence, as that term is used in this letter, refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol." The argument that any drug use renders one incapable of consent is a strawman here.

Page 15 is a completely inoffensive qualifier that issues of drug or alcohol use need to be considered separately from sexual violence claims. Which is quite reasonable. If I mug you while you're walking home drunk, the possibility that you might be guilty of public intoxication doesn't change the accusation that I've stolen your wallet.

The definition of sexual harassment on page 3 points to Title IX, with the note that the courts also use Title VII precedents for determining sexual harassment. So again, you're to the "reasonable person" standard. The explanation points out that hostile environment sexual harassment cases are examined on two scales: the offensiveness of individual actions and frequency of the actions. So would a reasonable person consider a single drunken butt-pat at a party to be equivalent to sexual harassment? Probably not.

All of this is explained in the cited cases. The court in Jennings found that the actions of a soccer coach were not severe or pervasive enough even to send to a jury. Vance affirms that the burden is on the plaintiff to make the case for sexual harassment. I don't have time to read all the cited cases tonight but I see no evidence that sexual harassment is defined so broadly as to make compliance impossible.

Page 4 is specifically addressing off-campus sexual violence and harassment as possibly extending to on-campus violence and harassment.

The section on third-party reporting specifically refers to legal minors at K-12 schools, so in context the obvious third-party reporters are:
a) parents and guardians of minor children
b) teachers and medical personnel who are required by law to report suspected sexual abuse of a minor in most states.

but student A's parent/friend/classmate - who we'll call party C - disapproves of student B's sexual activity with student A and claims on student A's behalf that student B committed a forcible sexual act against student A due to student A's impaired ability to grant consent, and that absent by the institution, party C considers a hostile educational environment to exist.

Would a reasonable person conclude that B's behavior in context is severe and/or pervasive enough to constitute violence and/or harassment? That's the standard that's at play here, and there's nothing in the Dear Colleague letter that's in contradiction to any of the dozen court cases cited that establish that standard. Again, pointing to Jennings the court considered relevant testimony from other members of the soccer team that the actions of the coach were not perceived as harassment.

jfuller: Under Title VII or Title IX an institution can be sued for damages from discrimination for failing to act responsibly in preventing or disciplining sexual harassment.

burnmp3s: A big difference here is that disciplinary actions by a school are usually handled confidentially.
posted by KirkJobSluder at 7:18 PM on July 20, 2011 [1 favorite]

To be honest, the most likely scenario for the false-rape accusation is in an environment where it's considered shameful for women to have and enjoy sex or to face punishment for doing so. Otherwise, they really don't have a motive to go after the guy they just slept with. It's not like filing a rape accusation is a Fun Time for Ladies, you know. You don't do it on your way to the tanning salon for shits and grins.

But you are assuming the person is in a normal state of mind. The straw woman who files false rape charges isn't doing so because she didn't consent, or even isn't sure or doesn't remember, but that she is nuts or angry for some reason and wants to fuck someone up. Rare? Sure. Rare as hell maybe. But it still isn't acceptable to create a system that basically forces people to have to prove they didn't rape someone. It isn't acceptable to hang the "rapist" noose on someone because one claim is more probable than not.

Lowering the threshold for "conviction" doesn't solve anything. It doesn't un-rape anyone, and it won't enter the mind of the potential rapist. Because they aren't thinking about the consequences- they are consumed with whatever it is they get consumed with that allows them to believe that sexual assault is OK. I don't know what they are thinking, but a greater chance of getting kicked out of school for sure isn't it.
posted by gjc at 7:19 PM on July 20, 2011

gjc: The burden of proof is still on the person making the complaint. And since these processes are almost always confidential, no one is hanging anything on anyone.
posted by KirkJobSluder at 7:24 PM on July 20, 2011

I think when a person says they are a victim of sexual assault, everyone should believe them. It's much more likely that they are telling the truth than that they are lying or mistaken. Which is why I think lowering the burden of proof puts the accused person in a tough position, it's most likely that someone is guilty of sexual assault if they are merely accused of sexual assault. I don't know what the correct burden of proof is for these kinds of cases in this particular court system, but it certainly puts the people who are falsely accused in a much worse position to not require a high level of certainty when they usually don't have much evidence to support their side of the story other than refuting the accusation.

In a just society, protecting the innocent is more important than punishing the guilty.
posted by gjc at 7:24 PM on July 20, 2011 [2 favorites]

burnmp3s: A big difference here is that disciplinary actions by a school are usually handled confidentially.

I agree but I honestly don't see how that's relevant to anything I said.
posted by burnmp3s at 7:26 PM on July 20, 2011

burnmp3s: Why do you think that a process to determine whether a student violated an institutional code of ethics is equivalent to a criminal trial?
posted by KirkJobSluder at 7:29 PM on July 20, 2011

Because the ethics violation in question is a felony?
posted by Holy Zarquon's Singing Fish at 7:31 PM on July 20, 2011

As a former student honor board (i.e., school court) member, I can offer a wholly unsolicited opinion that the notion of trying crimes of violence in a quasi-judicial setting is probably a terrible idea.

Assault, rape, etc are crimes which ought to be professionally investigated and prosecuted. School courts should be limited to hearing cases where there is no violence, and in which either the school itself is a party (e.g., a student vandalized school property or cheated on a test), or else in which both student parties are not alleging violence and are agreeing to the court as a sort of non-criminal, non-civil mediation.

In cases of rape and other violence, the school's response should be to protect the alleged victim and call the police.
posted by slab_lizard at 7:31 PM on July 20, 2011 [2 favorites]

gjc: The burden of proof is still on the person making the complaint. And since these processes are almost always confidential, no one is hanging anything on anyone.

To belabor my metaphor, the noose does its job whether anyone *sees* it or not.

And the language of this particular burden of proof implies that the defense ought to provide some evidence to balance out the prosecution's evidence. Even if the accused puts on no defense at all, they can suffer the consequences merely if the accuser tells a 51% believable story. That's fine for a parking ticket, not for this.
posted by gjc at 7:37 PM on July 20, 2011 [1 favorite]

burnmp3s: Why do you think that a process to determine whether a student violated an institutional code of ethics is equivalent to a criminal trial?

I don't believe I've ever directly or indirectly suggested that they are equivalent. I have mostly been comparing the old burden of proof to the new burden of proof and talking about what I think that means for Stanford's system. The comment I assume you were referring to only mentioned criminal cases because someone else asked for specific examples "in which people (not necessarily men) were falsely accused, or falsely convicted of, sexual violence."
posted by burnmp3s at 7:43 PM on July 20, 2011

This is why I think it might be nice to have some examples of cases which satisfy one evidence standard but not the other. Otherwise I'm finding it hard to think of what the actual difference in practice might be aside from one of perception (which might be enough if it helps people feel comfortable reporting assault).
posted by ODiV at 7:44 PM on July 20, 2011

To illustrate what a low threshold 51% is, consider the birthday paradox. In any group of greater than 23 people, there is a greater than 50% chance two of them share a birthday. In a group of approx 250 people, there is a greater than 50% chance that two randomly chosen individuals have the same birthday.

In other words, it means they only have to be right slightly more than half the time. That is unacceptable.
posted by gjc at 7:45 PM on July 20, 2011

Holy Zarquon: Because the ethics violation in question is a felony?

Irrelevant. Doctors and lawyers who commit ethics violations can loose their licenses, athletes are suspended for the commission of felonies, and people from all walks of life loose their jobs.

slab_lizard: In cases of rape and other violence, the school's response should be to protect the alleged victim and call the police.

Ok, how does the school protect the victim when the accused party still is allowed to have close contact with the victim? But the fact remains that failing to respond to cases of sexual violence and or harassment opens the door to liability under Title VII and Title IX. If you object to this, (and the people behind the decisions are probably not who you think they are) change the SCotUS.

gjc: There's no noose. And again, the burden of evidence needed here is would a reasonable person consider the actions to be severe and/or pervasive enough to constitute sexual harassment. The notion that it's 51% is pure fantasy.
posted by KirkJobSluder at 7:51 PM on July 20, 2011

the burden of evidence needed here is would a reasonable person consider the actions to be severe and/or pervasive enough to constitute sexual harassment. The notion that it's 51% is pure fantasy.

I don't think this is describing things correctly. The elements are severe and pervasive harassment in the eyes of a reasonable person. The standard of proof is preponderance of the evidence.

For comparison, take any alleged crime in the ordinary criminal justice system. The elements of the crime remain the same throughout the process, but the burden of proof is substantially different for an arrest or indictment than for conviction. The elements of an offense (whether a civil matter like workplace harassment or a criminal act) are independent from the standard of proof required at some stage of the process.
posted by dsfan at 8:03 PM on July 20, 2011

And we're talking about institutions that automatically suspend enrollment over library fines. To attribute any higher standard to a university committee is wishful thinking.

The elements are severe and pervasive harassment in the eyes of a reasonable person.

In that case, the elements are violation of the code of student ethics, whatever they may be. At Brigham Young, that's admitting to pre-marital sex.
posted by KirkJobSluder at 8:07 PM on July 20, 2011

So drug or alcohol use can render a person incapable of consent, but that doesn't mean it always is. It would be problematic to say that any alcohol consumption, even a sip, created a presumption of incapacity to consent, but I don't see that in the letter. Maybe that's what they mean--"can render a person incapable of consent" is compatible with "always renders a person incapable of consent"--but it isn't what they've said.

This is the problem, though. We all know that a single sip of beer would not be enough to cloud a normal person's judgment, but we also know that the necessary amount of consumption varies widely depending on the individual in question, the drug in question and the form in which is was administered, the individual's degree of experience in consumption of said drug and so forth. Absent any more specific guidance, there are standard judicial procedures for deciding how to interpret an ambiguous phrase in a regulatory document, how much weight to accord it (versus a promulgated regulation, existing statute, and court precedent), and what standard of judicial interpretation should be employed when making such a determination. This is, of course, terribly nitpicky and technical, but so are a lot of the debates that come up in appellate cases. It's not at all clear who gets to decide exactly what a vague term should mean and what standard should be used to guide that decision-making.

Just above is a link to a case involving an alleged rape of a college basketball player, who said she had 6 vodkas at a party and was then waylaid and raped by acquaintances from the men's basketball team. One of these guys claimed not to be present at all, while 2 others claimed to have believed she had given consent. Even if they were telling the truth in this regard, it's quite questionable whether one could meaningfully give consent after having had 6 shots of vodka - that could be nothing special to one person, and way too much for someone else. It's not at all clear where consent and agency end when alcohol or drugs are involved, and how all participants should make such a determination.

gjc: The burden of proof is still on the person making the complaint. And since these processes are almost always confidential, no one is hanging anything on anyone.

Kirkjobsluder, This is incorrect under the DCL guidance. See page 14 and notes 36-39.

Your other objections above (in your previous post) are questionable. I treat of the drug/alcohol consumption question and lack of specific thresholds or standards above. Reference to third-party reporters is of particular interest to the parents or guardians of minor children but not limited to them.

So would a reasonable person consider a single drunken butt-pat at a party to be equivalent to sexual harassment? Probably not. [...] Would a reasonable person conclude that B's behavior in context is severe and/or pervasive enough to constitute violence and/or harassment?

But a lot of reasonable people do believe that any sexual contact constitutes harassment in the absence of consent, and likewise disagree over whether consent can be present in cases of even mild intoxication. It is not at all the obvious determination that you are suggesting it to be. The latter three cases cited in note 10 - Berry, Turner and McKinnis - all hold that a single incident of deliberate and unwelcome contact with intimate body parts is sufficient to constitute a hostile environment. A butt-groping may not seem like a big deal but the buttocks most certainly are an intimate body part; it would not under any circumstances be appropriate for someone to grope the butt of a fellow employee in a sexual manner, without consent, in the workplace.

Your reliance on Jennings and ignoring of the other cases, and of the sexual rather than convivial context that I chose for my example, is unconvincing to say the least. I specifically gave the example of one person groping another's butt during a makeout session, and the person being groped having consumed alcohol or drugs prior to that. This is quite different from your characterization of such an incident as a 'single drunken butt pat' and downplays what may seem like very significant violations of personal space or sexual propriety to the individual involved. The distinctions between different degrees of sexual activity are significant enough that the metaphor of 'getting to first/second/third/home base' has wide popular currency. Kissing someone and groping them are two very different things.
posted by anigbrowl at 8:09 PM on July 20, 2011 [1 favorite]

"In a just society, protecting the innocent is more important than punishing the guilty."

That's an incoherent statement.

In perfectly just society, "guilty" is meaningless, as no one infringes on the rights of others (or everyone acts according to their duty, or whatever).

In a society that's not perfectly just, the rights of the innocent conflict between enforcing the rule of law, adjudicating disputes and protecting the innocent from false accusations. But in each, it's protecting some of the rights of innocents against other rights of innocents (sometimes the same innocents).

"To illustrate what a low threshold 51% is, consider the birthday paradox. In any group of greater than 23 people, there is a greater than 50% chance two of them share a birthday. In a group of approx 250 people, there is a greater than 50% chance that two randomly chosen individuals have the same birthday.

In other words, it means they only have to be right slightly more than half the time. That is unacceptable."

This is a total non sequitor. Are you arguing that in any group of 23 people, it's a better than 50 percent chance that one has harassed another? Of course not. Another non sequitors would be how hard it is to hit .500 in baseball for a season. Preponderance of guilt isn't influenced by rate of coincidence.
posted by klangklangston at 8:23 PM on July 20, 2011

And we're talking about institutions that automatically suspend enrollment over library fines.

I'm not sure what the confusion is, but this still has absolutely nothing to do with the standard of proof, so I have no idea what you mean by 'higher standard.' Whether or not schools suspend for library fines, they can do so with a preponderance standard ('we think it's more likely than not you owe fines'), a clear and convincing standard ('looking at the evidence, a reasonable person would say you owe fines'), beyond reasonable doubt ('there's no other reasonable explanation but that you owe fines'), or something else that meets the (generally low) standard for due process.

To use your Brigham Young example, yes, they can punish for premarital sex. Since this isn't related to OCR, I am reasonably confident they could do so under any standard of proof. I simply cannot see the relevance to what standards or procedures schools should be required to use for OCR-related allegations.
posted by dsfan at 8:24 PM on July 20, 2011 [1 favorite]

"This is the problem, though. We all know that a single sip of beer would not be enough to cloud a normal person's judgment, but we also know that the necessary amount of consumption varies widely depending on the individual in question, the drug in question and the form in which is was administered, the individual's degree of experience in consumption of said drug and so forth. Absent any more specific guidance, there are standard judicial procedures for deciding how to interpret an ambiguous phrase in a regulatory document, how much weight to accord it (versus a promulgated regulation, existing statute, and court precedent), and what standard of judicial interpretation should be employed when making such a determination. This is, of course, terribly nitpicky and technical, but so are a lot of the debates that come up in appellate cases. It's not at all clear who gets to decide exactly what a vague term should mean and what standard should be used to guide that decision-making."

Why, if only there were a deliberative body to decide these matters of fact!

If someone found guilty in student judiciary of sexual misconduct truly feels that they were done wrongly, they have civil remedies outside of the student judiciary. Aside from that, this is a hypothetical in search of a case.
posted by klangklangston at 8:26 PM on July 20, 2011

I don't want consent, I want bedbreaking, floorboard pounding, enthusiasm in my partner!

Agreed, but many women are brought up to think that sex isn't something nice girls do, and that "slut" is the ultimate slur. Because of this, many of these women, even when enthusiastic, will try to hide it. And if the girl you're into turns out to be like this, well, that's not up to you. And if you learn your signals from these kind of people, if the partners in your life have taught you that they want you to push, that that's the role you should fill, and have blurred the line between resistance and enthusiasm, well, I could see how if you're not careful you could end up a date-rape waiting to happen.

I had the opposite problem - I was really into someone, had a big crush, etc, and I actually got a chance to kick-start a relationship, but I mistook a no-meaning-yes situation for a no-means-no situation, backed off, and I didn't find out until it was too late that she also wanted us to be something. I don't think she even realised what she did - I think she thinks I turned her down, when I would have done anything.

So my solution is to treat the cause instead of the symptoms, and nip it in the bud - war on this crazy idea that "slut" is a bad thing. Sluts are awesome. Anyone using promiscuity as a slur shall be either gently correctly, or laughed at. Responsible studs and studdettes are just good people to be around.
posted by anonymisc at 8:30 PM on July 20, 2011 [1 favorite]

Aside from that, this is a hypothetical in search of a case.

Yeah, I'm not really getting the big problem here. The burden of proof is still on the person bringing the complaint. "Beyond a reasonable doubt" is a pretty unreasonable standard when it only applies to sexual misconduct and nothing else. And this isn't a court of law. There is no proof that allegations of sexual misconduct are more likely to be false than the many types of allegations that were already held to the lower standard. There is a lot of evidence that sexual misconduct is severely under-reported, and I think overly high, inconsistent standards of proof have something to do with that.
posted by Danila at 8:38 PM on July 20, 2011

Why, if only there were a deliberative body to decide these matters of fact!

Excuse me for going all law nerd here, but: matters of fact are questions about whether or not particular events took place out in the world. The question I am examining here is a matter of law. A trial court determines matters of fact, and generally the court's judgments on such things stand absent a mistrial. But trial courts often make errors of law, and it is appellate courts which have to straighten such questions out.

And those questions are complicated.

If someone found guilty in student judiciary of sexual misconduct truly feels that they were done wrongly, they have civil remedies outside of the student judiciary. Aside from that, this is a hypothetical in search of a case.

But the question here is a different one: should the burden of proof on an educational institution for determining whether a hostile environment exists automatically apply to some disciplinary proceeding carried out by that institution, but not to others?

"Beyond a reasonable doubt" is a pretty unreasonable standard when it only applies to sexual misconduct and nothing else.

We've been over this. It is in fact the other way around; 'reasonable doubt' now applies to all non-sexual misconduct, 'preponderance of the evidence' to sexual conduct - at least as far as Stanford is concerned..
posted by anigbrowl at 8:44 PM on July 20, 2011

"Excuse me for going all law nerd here, but: matters of fact are questions about whether or not particular events took place out in the world. The question I am examining here is a matter of law. A trial court determines matters of fact, and generally the court's judgments on such things stand absent a mistrial. But trial courts often make errors of law, and it is appellate courts which have to straighten such questions out. "

I'll take my rebuke while noting that this is still irrelevant — this is a private process using terms agreed upon by both parties. (The only part of all of this that I'd object to is using a new standard for cases currently before the student court.)

Do parties have an ability to enter into contracts that dictate their conduct, even in ways not directly involving both parties? Yes, generally. Students are certainly free to not attend schools whose ethical standpoints they don't agree with, or not to attend college at all.

But the federal involvement makes this a broader question — colleges certainly can dictate this as a standard of conduct, but should that be the national default?

That depends on how you count the cost of sexual harassment, especially in the context of civil rights and equality. Note that this isn't just assaults, but all sexual misconduct, including lesser harassments. I'd wager that those are much more prevalent than assaults — the risks are lower, for one thing. If that's true, it makes sense not to have to hold sexual harassment or misconduct to a reasonable doubt standard — if the general case we're dealing with isn't a forcible rape, but rather inappropriate remarks, requests, etc., then preponderance makes a lot more sense.

And even within the context of forcible assaults, the wrongly accused still has other remedies, including civil court (which also provides the school with an incentive to even dealing, knowing that there is potential liability on either side).

I tend to believe that there are more incidents of women being harassed than there are of men being falsely accused, and that the total costs are currently greater for women. As such, I find the arguments that rare catastrophic risk outweighs the benefits of a decrease in general harm that women suffer unconvincing. (Men and women used generally here; obviously women can be falsely accused and men harassed.)
posted by klangklangston at 9:23 PM on July 20, 2011

anigbrowl: It's not at all clear who gets to decide exactly what a vague term should mean and what standard should be used to guide that decision-making.

By your own admission then, the heart of your argument is bullshit. But I don't think the term or concept of incapacity to give consent is vague. Determining the facts of it are another matter, but that's a matter for the courts to decide. Setting the bar at any drink or drug use is an unreasonable interpretation. Sexual assault involving diminished capacity and coercion of authority are not new concepts, and generally have not opened the floodgates to mass reporting of sex while slightly buzzed.

Reference to third-party reporters is of particular interest to the parents or guardians of minor children but not limited to them.

Certainly, did I not say that certain parties are compelled by law to report suspected sexual abuse? There's nothing in the document to say that the institution must rely only on the reporting of third parties in reporting an accusation, or to say that a third-party opinion alone is sufficient to determine hostile environment.

The latter three cases cited in note 10 - Berry, Turner and McKinnis - all hold that a single incident of deliberate and unwelcome contact with intimate body parts is sufficient to constitute a hostile environment.

Sure, which is why the reasonable person standard demands a consideration of both severity and frequency. Again, this is a body of law that's not new, radical, or even liberal in this day and age. The notion that this letter breaks with that body of law while citing it strikes me as patently absurd.

A butt-groping may not seem like a big deal but the buttocks most certainly are an intimate body part; it would not under any circumstances be appropriate for someone to grope the butt of a fellow employee in a sexual manner, without consent, in the workplace.

Certainly, which is why context matters. Butt-groping in the workplace is out of the question. Butt-groping on the dance floor of a dorm party might be another thing altogether. Butt-groping on stage as part of a theatrical performance may or may not be an issue.
Butt-groping during a makeout session probably isn't sexual harassment or violence.

Your reliance on Jennings and ignoring of the other cases...

I didn't ignore the other cases. I highlighted Jennings because it specifically counters your claim that everything must be treated as sexual harassment under the DoE guidelines.

I specifically gave the example of one person groping another's butt during a makeout session, and the person being groped having consumed alcohol or drugs prior to that.

Probably not sexual harassment or violence unless:
1) The person is so tranquilized he's unable to give consent.
2) There's an issue of coercion by authority (which would be quid pro quo not hostile environment anyway.)
3) One person violates a no-butt-groping rule, with allowances made for how those rules are negotiated.
4) They're intentionally trying to piss off third parties like roomates.

But the question here is a different one: should the burden of proof on an educational institution for determining whether a hostile environment exists automatically apply to some disciplinary proceeding carried out by that institution, but not to others?

Well, I think it's an irrelevant question myself. A process for handling sexual harassment cases is mandated by Title VII and Title IX. The EEOC and DoE can look at the existing case law and point out that any lawsuit on this matter will be decided on a preponderance of evidence basis all the way to the Supreme Court.

The question in my mind is why are we even trying to apply standards of proof developed within a judicial due-process system to administrative processes? My objection to proof beyond a reasonable doubt is that I think it's false advertising, as most organizations can't establish that. I don't think they need to though.
posted by KirkJobSluder at 9:32 PM on July 20, 2011

Ahh thanks for clarifying, anigbrowl. I'd also missed that evidentiary standards are now lighter for sexual miss-conduct than all other student miss-conduct.

Just fyi, there isn't much complaining about the evidentiary standards in thefire.org link, mostly they focus upon the bias in training materials received by student jurors and how intoxication precludes consent.
posted by jeffburdges at 9:37 PM on July 20, 2011 [1 favorite]

KirkJobSluder writes "How are the consequences more severe than in a civil matter? Students do not have a right to continued enrollment."

Getting expelled, for sexual misconduct no less, is a extreme life altering event. Especially for those with a few years invested at an institute. It's going to be very hard to get accepted at other schools and it'll kill your grad school track. I'd much prefer to have my assets wiped out than get expelled from a doctoral program. The latter is something you'll essentially never recover from.
posted by Mitheral at 12:58 AM on July 21, 2011 [1 favorite]

By your own admission then, the heart of your argument is bullshit.

I'm not sure you understand my argument.

But I don't think the term or concept of incapacity to give consent is vague. Determining the facts of it are another matter, but that's a matter for the courts to decide. Setting the bar at any drink or drug use is an unreasonable interpretation. Sexual assault involving diminished capacity and coercion of authority are not new concepts, and generally have not opened the floodgates to mass reporting of sex while slightly buzzed.

But that's partly because such assertions wouldn't pass muster un the reasonable doubt standard employed in criminal trials. You have no clue how that would go in proceedings where a lower standard such as 'preponderance of the evidence' is employed; and based on your inability upthread to distinguish between elements and standards of proof I'm not inclined to trust your blanket assurances about how much alcohol or drug consumption would be required for a reasonable person to decide that the ability to grant consent was absent.

I never said that there would be an epidemic of assault reports as soon as someone had had a drink; I just alluded to the fact that someone who had consumed alcohol or drugs could have a diminished capacity to grant consent, and it was other people who questioned whether that analysis could be applied to someone who had just had a single sip. The fact is that we think we can tell from observing someone whether they are drunk or sober, but our ability to make such judgments reliably is not actually all that good. If A grants consent to B for sexual activity, but later claims to have been far too drunk to give consent, and metabolic evidence shows that A was indeed quite drunk, then B's claims of consensuality are seriously undermined.

(The latter three cases cited in note 10 - Berry, Turner and McKinnis - all hold that a single incident of deliberate and unwelcome contact with intimate body parts is sufficient to constitute a hostile environment.)
Sure, which is why the reasonable person standard demands a consideration of both severity and frequency.

The cited cases define the required scope for such a finding and show that it is quite a low threshold.

I didn't ignore the other cases. I highlighted Jennings because it specifically counters your claim that everything must be treated as sexual harassment under the DoE guidelines.

That is not the claim I am making, and I specifically referred to the issue of non-sexual harassment as an issue for another discussion in my original post on this subject.

(I specifically gave the example of one person groping another's butt during a makeout session, and the person being groped having consumed alcohol or drugs prior to that.)
Probably not sexual harassment or violence unless:
1) The person is so tranquilized he's unable to give consent.

Say, by their prior consumption of alcohol or drugs? You have just demonstrated my point - that it is almost trivially easy to show that the elements of a sexual harassment/violence allegation are present. If you meet a sexually attractive person, the attraction seems mutual, and sexual activity ensues, you don't know to what extent their judgment may be chemically impaired or how valid their expressions of consent are, whether implicit or explicit. In a criminal case, the prosecution has to show beyond a reasonable doubt that any sexual activity was non-consensual. In a case where the preponderance of the evidence standard applies, any knowledge on your part that a person had consumed some alcohol or drugs, or that they could have done so, may be sufficient to make the necessary showing.

I appreciate that you think this is pointless hair-splitting, but it is exactly this kind of vagueness which provides so much work for appellate lawyers. Consider, for example, this case examining California's infuriatingly vague 'some evidence' standard for whether or not a denial of parole must be upheld. The absence of specificty in the Clery act about the degree to which alcohol or drug consumption impairs consent

Well, I think it's an irrelevant question myself. A process for handling sexual harassment cases is mandated by Title VII and Title IX. My objection to proof beyond a reasonable doubt is that I think it's false advertising, as most organizations can't establish that. I don't think they need to though.

There's no question that an educational institution must have a grievance process that is compliant with those two titles, but the process for remedy of the grievance by mitigating the hostile environmental conditions, and that for disciplining the alleged perpetrator of an assault are two wholly different issues.

As has been pointed out already, Stanford already has a judicial charter defining the rights of both a complainants and complainees in misconduct cases, which is now being partially set aside by administrative fiat in pursuit of title IX compliance. Now, if you're saying that they ought not to have such a charter in the first place because they can't possibly do a fair job of administering it, then OK - but that's rather a big claim considering that Stanford has one of the best law schools in the country, while the DCL has little in the way of legal force and appears to rest on highly questionable statistical assertions.

The prior 'reasonable doubt' standard employed for disciplinary (not remedial) action by Stanford was far more defensible in legal terms than the new 'preponderance of the evidence' standard, and argue that their institutional liability has increased rather than decreased as a result of its adoption. I bet that a test case will arise within the next 3-4 years which will vindicate this point of view. This paper may help to explain why.
posted by anigbrowl at 2:55 AM on July 21, 2011

Mod note: comment removed - take "I'm just speaking in this racist voice to make some sort of point about racism/overgeneralizations" comments elsewhere
posted by jessamyn (staff) at 11:05 AM on July 21, 2011

> in pursuit of title IX compliance $$$
posted by jfuller at 4:36 PM on July 21, 2011