Last Friday, Education Secretary Betsy DeVos rescinded the Obama-era Title IX guidance (which took the form of a “Dear Colleague” letter) on campus sexual assault, because the Obama approach allegedly denied due process to students accused of rape. Not surprisingly, people on the right of the political spectrum reacted positively when DeVos announced the planned rescission. More surprising was the positive reaction by some progressives who shared the view that the Obama guidelines denied due process to accused rapists. Most prominently, a three–part series in The Atlantic outlined, using particular individuals’ stories, the various abuses that the author viewed either as inherent in the Obama guidelines or as a consequence of campus attempts to comply with those guidelines. In this column, I will defend two of the more commonly attacked features of campus policy, one of which was found in the guidelines and the other of which was adopted in some states attempting to comply with the guidelines. The two targets of attack were: the preponderance of the evidence standard and the affirmative consent requirement.
Before defending the two targets, let me just say that I understand that schools have made mistakes and have in some cases treated accused students terribly. In one of the individual cases outlined in The Atlantic, for example, a female student accused a male student of sexual assault despite the fact that nothing that she claims happened between the two of them amounts to an assault under any remotely plausible definition. Notwithstanding the lack of an assault, the school treated the accused student horribly, excluding him from various parts of campus during the investigation and ultimately causing him to suffer an emotional collapse. Stories like this and others should lead schools to listen carefully to a complaining student to make sure that an assault has truly been alleged. Schools should also make sure to treat accused students with respect during any investigation.
Beyond particular cases, there were also policy prescriptions in the Dear Colleague letter that may not have been ideal. For instance, the need to investigate when a third party complains about harassment or assault of someone else could lead to serious problems when the alleged victim denies being a victim but the investigation must nonetheless continue. One of the Atlantic articles discusses a case in which a young man was expelled after an investigation initiated by a third party, even though the alleged victim insisted that nothing violent or non-consensual had happened and that the supposed abuse was actually just the two of them playing around. Part of believing women should include not only believing them when they say they have been raped but also believing them when they say that they have not been abused.
If DeVos had intended only to put in place measures to prevent the sorts of miscarriage of justice discussed above, that would be laudable. But she plainly intended to go further, as she has now officially rescinded the guidelines rather than editing or modifying them. Let us therefore turn to two of the commonly attacked policies associated with the Obama guidelines.
Preponderance of the Evidence
The Dear Colleague letter itself instructed schools to adopt a preponderance of the evidence standard, saying that “[i]n addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints.” Critics have charged that this standard is too lenient in allowing a complaining student to prevail over the accused student with only slightly more than a 50/50 chance of being right. Because the consequences of losing such a case are grave and may involve expulsion as well as stigma that will likely travel well beyond the specific school, critics of the preponderance rule advocate a more demanding standard, like clear and convincing evidence, which is closer to the beyond-a-reasonable-doubt burden that prevails at a criminal trial.
At first glance, this sounds like a convincing argument. After all, if someone stands accused of a crime, doesn’t the “prosecution” have to prove its case by more than a mere preponderance of the evidence to win? The answer is yes, but the crime analogy is inapt. In non-criminal contexts, the standard of proof is almost always preponderance of the evidence, even when the conduct at issue is not only tortious but also criminal. This includes civil lawsuits for wrongful death. That is how O.J. Simpson, who was acquitted of murder under the beyond-a-reasonable-doubt standard, was found liable for wrongful death for the same murders under a preponderance test. This also includes civil lawsuits for sexual assault, which are arguably very much like the disputes between students over an alleged campus rape. In either type of civil lawsuit (for wrongful death or for sexual assault), the burden is preponderance of the evidence and the defendant who loses will carry a substantial stigma and may have a hard time finding work, in much the same way as a student expelled for sexual assault on a preponderance standard might have a hard time finding a school that will admit him (or her).
Of course, the fact that the civil justice system uses a preponderance standard for torts that also happen to be crimes does not itself mean this is a good idea. Maybe the standard should be different. Why make it about equally likely that we err on the side of the accuser as that we err on the side of the accused? Aren’t the stakes far greater for the accused?
In a word, no. In a civil case in court, the reason for allocating the risk of error almost equally between the parties is that each party stands to lose about the same amount as the other if she or he unjustly loses in court. If the plaintiff should have won but did not, then the plaintiff unjustly loses the money that he should have won from the defendant. This is equally true of the defendant if the defendant should have won but did not and thus unjustly loses the money she should have kept. Because the law favors the status quo, it gives the slight edge to the defendant by placing the burden of proof upon the plaintiff, but the burden is minimal, for the reason described.
In a campus rape accusation case, the issue is not money. The accuser is not looking to collect compensation from the accused for sexual assault (although she may be entitled to such compensation in a civil suit). Likewise, the harm experienced by the accused is not the loss of money. Still, both the accuser and the accused have something on the line: their reputation and standing in the community. If the accuser prevails, then the accused will probably be expelled from the school and will acquire a reputation as a rapist that will impede his efforts to be admitted to another school. But it is easy to miss the fact that the accuser’s reputation is on the line as well. If the authorities do not believe her, then she gets a reputation for being a false accuser, someone who lies about rape. Though she may not be expelled, she could very well find herself needing to leave not only out of shame but also because, if she was in fact sexually assaulted by the accused, it might be too painful and traumatic to have to encounter him repeatedly on campus. The stakes are therefore high for both the accuser and the accused, just as they might be in a civil case involving criminal conduct. A preponderance standard effectively recognizes this fact and allocates the burden of proof accordingly.
Another target of much criticism, including in The Atlantic, is the requirement that a student get affirmative consent from another student before sex is deemed consensual. The Dear Colleague letter did not expressly call for affirmative consent, but a number of states adopted it for their campuses. Critics charge that the affirmative consent scenario does not accurately capture the way that people have sex with one another in the real world and therefore should not be required of college students. Once again, however, it is useful to remember that a college proceeding for sexual assault is not the same thing as a criminal prosecution for rape. Rules in college can be more demanding than the rules imposed by the criminal law. This is only in part because the consequences of violating the rules are more serious in a criminal proceeding (where prison is a possibility) than in a campus proceeding (where incarceration is not a possibility). It is also because the goal of an educational institution is to educate the people in its care and not just to accept whatever attitudes and conduct they bring with them from the world outside the campus walls. Some people out in the world are racist, but that does not mean that the school must simply accept racism among its students. Likewise, sex out in the world can often be one-sided and coercive, where one party is virtually motionless while the other party proceeds with intercourse as though silence is consent. This reality does not mean that college campuses should welcome this conduct.
A school, unlike a criminal court, can attempt to shape the behavior of its students and accordingly punish racism and demand truly consensual sex. Does this mean “utopian sex” as some critics claim? No. It is hardly “utopian” to ask that if a person wants to have sex with another person, the other person must either say yes or behave physically in a way that indicates an interest in sex before the first person can have sex with him or her. Under a “no means no” approach, by contrast, a party may be lying motionless while the other party undresses him or her and then inserts himself into his or her body, and that is deemed consensual. It is commendable that some states are having their universities demand more. And ideally, most of the students will learn to engage in actually consensual sex—sex in which the other person is not simply a live-flesh blow-up doll to be used for masturbation—as part of their educational process. And those who refuse to learn this lesson are appropriately disciplined. One should not have to violate the criminal law of rape to be deemed unfit to be part of an academic community. Defining rape as the absence of consent, where consent is a verbal or physical action rather than a simple failure to say no, is neither utopian nor excessively demanding. Those who think it is may be revealing more than they would wish to about their own sexual lives.
In short, there was room for improvement in the Obama Dear Colleague letter and its implementation. Some campuses reacted to the letter in ways that were unfair to accused students and that could have used revision. For a fascinating essay acknowledging the need for improvement along with skepticism about some of the critiques, see this piece by fellow columnist Neil Buchanan. But Secretary DeVos has rescinded the policies contained in the letter, and that was a mistake. Two of the most attacked policies associated with the letter—the preponderance standard (found in the letter itself) and the affirmative consent standard (not found in the letter but adopted by some states for their campuses)—are actually sensible policies that are eminently defensible. They may sound draconian or utopian at first glance, but after careful study, it is clear that they are not. I am disappointed that Secretary DeVos has apparently failed to give careful study to the Dear Colleague letter and to the policies that she trashed. A closer examination would have been called for, if only to respond to the fair accusation that the groper-in-chief simply wants to protect fellow sexual predators.