Setting a Realistic Standard of Proof in Sexual-Misconduct Cases

Article here. Excerpt:

'In April of last year, the U.S. Department of Education's Office for Civil Rights made clear its stance that when colleges assess Title IX-related complaints on their campuses, including those involving sexual violence, they should follow the "preponderance of the evidence" standard. In other words, the accused should be found guilty if it is more than 50 percent likely that they committed the act. Those are welcome instructions.

In a recent commentary in The Chronicle, Joseph Cohn, legislative and policy director at the Foundation for Individual Rights in Education, argued that the low standard was unfair to the accused because the burden of proof should be higher in cases of sexual misconduct. We, however, support the use of the preponderance standard, for two main reasons: First, it protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money; and second, it is the only standard that is equally fair to men and women.
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Another reason the preponderance-of-evidence standard should be followed is that it is the only fair one. Title IX requires equitable treatment based on sex, both in substance and in procedure. Procedural equity cannot be satisfied by a standard of evidence that skews in favor of one party over another, as any higher or lower standard would.

Preponderance presumes a level playing field, one that is not advantageous to either party. But a higher standard, such as clear and convincing evidence, would make it less likely that those who commit sexual misconduct would be held accountable. Ponder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not. Men commit the vast majority of acts of sexual harassment and violence on campuses, and they should not have a systemic advantage that makes it easier for them to do so and avoid accountability.'