What should the burden of proof be on campus sexual misconduct cases?

At UAA, cases that involve allegations of sexual misconduct are referred to the Title IX Coordinator in the Office of Equity and Compliance. The UAA policy must be changed to either “beyond a reasonable doubt” or “clear and convincing evidence” to punish a student accused of sexual misconduct.

Title IX and university investigations should be held to the same standard as other criminal investigations at the state and federal levels.

Sexual misconduct investigations conducted by the Title IX Coordinator in the Office of Equity and Compliance are not criminal proceedings. James Whitman is a professor at Yale Law School. In his book titled “What Are the Origins of ‘Reasonable Doubt?’” Whitman proclaims that in all areas within the United State’s study of law, a person cannot be convicted of a crime unless that person’s guilt is proven “beyond a reasonable doubt.” For a person accused of sexual misconduct, this can be a double-edged sword.

On one hand, the accused benefits from the fact that they are not being charged as a criminal. They will not stand trial or be punished by the law unless the alleged victim files criminal charges and the accused is convicted in a court of law. On the other hand, this means for the accused, they will not be protected by the same burden of proof that they would be in criminal court.

In Vol. 108, No. 8 of the Harvard Law Review, it is established that a Constitutional definition of “reasonable doubt” does not exist. There is a common law interpretation of “beyond reasonable doubt” set at a certainty between 98 and 99 percent.

John Villasenor conducted research on Title IX incidents across the country and wrote for Law, Probability and Risk (Volume 15, Issue 4) that “the quantitative results presented herein show that an innocent defendant faces a dramatically increased risk of conviction.”

What constitutes as proof of guilt is up to the discretion of the Title IX investigator.

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Easy prosecution would never be tolerated in a court of common law. The burden of proof used in UAA sexual misconduct investigations needs to be set at a maximum of “beyond a reasonable doubt” and, at a minimum, with clear and convincing evidence.

I concede the point the point that these accusations are not criminal trials; however, that does not mean a UAA student should be held to the standard of “more than likely” to be punished, while in court, they would hold that their guilt must be almost certain.

Josiah Nash is the UAA student ombudsman. His duties include representing students in conflicts as well as defending student rights.

“Holding a student’s future on 51 percent likelihood that they committed an offense seems incongruent with our American notion of justice,” Nash said. “As the penalties for these offenses do not include the deprivation of life, liberty, or property I can understand why the university does not use the criminal burden of proof… Something more appropriate though would be standard such as clear and convincing evidence. This standard is used in occasionally in civil cases and requires a 75 percent level of proof to levy charges against a respondent.”

When handling sexual misconduct accusations at UAA, it is important that the administration do everything in their power to protect the rights of all students involved.

Opinions expressed in The Northern Light do not necessarily reflect that of the newspaper, its staff or faculty advisor(s).