Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system—but his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to answer the charge.) Yet Warner remained banned from campus until last month, when he was finally reinstated after the indefatigable FIRE—the Foundation for Individual Rights in Education—interceded to publicize his plight.
Now, some in Washington are pushing for measures that would create more such travesties.
Warner was found guilty under a "preponderance of the evidence" standard of proof—the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense. Traditionally, most colleges have adjudicated charges of misconduct against students under the higher standard of "clear and convincing evidence"—less stringent than "beyond a reasonable doubt," but nonetheless requiring an extremely strong probability of guilt.
A few months ago, the Office for Civil Rights of the Department of Education undertook to change that. On April 4, the OCR sent out a letter to colleges and universities on the proper handling of sexual assault and sexual harassment reports. One of its key recommendations was to adopt the "preponderance of the evidence" standard in judging such complaints.
While these guidelines supposedly reflect federal standards for Title IX sex discrimination cases, former Education Department attorney Hans Bader has argued that they are actually based on a basic misunderstanding of federal law. In Title IX cases, the "preponderance of the evidence" rule applies to an institution accused of violating the plaintiff's rights—not to another individual accused of an offense.
Last month, it seemed likely that schools which failed to adhere to the OCR's new regulations would be strong-armed into obedience by federal law. The Senate draft bill reauthorizing the Violence Against Woman Act, sponsored by Sen. Patrick Leahy (D-Vt.), would have required all schools that receive federal money to follow the OCR's guidance in disciplinary proceedings. What's more, this version of VAWA expanded the OCR's recommendations so that the "preponderance of the evidence" standard must apply not only to complaints of sexual assault but also of domestic or dating violence and stalking. Non-compliant institutions stood to lose all federal funding, including their students' eligibility for tuition assistance.
Fortunately, the backlash was swift, and not limited—as during the passage of the original VAWA in 1994—to a handful of marginal men's rights activists. The strongest objections came from FIRE, which denounced Leahy's move as potentially depriving college students of due process. On November 11, the Burlington Free Press reported that Leahy was scrapping the provision requiring colleges to use the lower standard of proof in cases related to sexual and domestic violence from the VAWA reauthorization bill.
Nonetheless, the new Department of Education guidelines remain in force (the OCR never even replied to FIRE's letter criticizing them). And, while these regulations carry no penalty for non-compliance, they will undoubtedly continue to exert pressure on colleges to disciplinary codes. A number of schools, including major universities such as Stanford and Yale, have already amended their procedural rules in response to the OCR letter. A comment from Stanford Dean of Student Life Christine Griffith strongly suggested that concerns about violations of students' rights were not misplaced. If some were worried that the changes in the burden of proof might be unfavorable to the accused, Griffith told The Stanford Daily, it was "an opportunity for people to be saying to themselves, 'I need to be really educated about these issues because I don't want to find myself in this circumstance.'" In other words, it's up to potential defendants to be extra careful to avoid any ambiguous situation that might lead to a rape charge.
Of course, these "convictions" are before campus disciplinary panels, not in criminal court. Yet they are still likely to have grave consequences. A student found guilty of sexual assault in such a hearing faces not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.
Sexual violence on campuses is a real problem that, until fairly recently, was usually treated with not-so-benign neglect. Yet Washington's push to force colleges into taking a more aggressive stance is based on a highly inflated notion of an "epidemic" of campus rape. The OCR letter cited the recent Campus Sexual Assault study, commissioned by the National Institute of Justice, as evidence that one in five female students experience rape or attempted rape while in college. Yet the vast majority of the incidents in the study were related to "incapacitation" by alcohol or drugs rather than physical force—and "incapacitation" was defined so broadly as to include impaired judgment. Not surprisingly, most of the women labeled as sexual assault victims did not see themselves as such, did not feel traumatized, and did not report the alleged offense because they did not consider it serious enough.
Unfortunately, much of the feminist "war on rape" has conflated sexual assault with muddled, often alcohol-fueled, sexual encounters that involve miscommunication, perhaps bad behavior, but no criminal coercion. As a result, the drunken hookups all too common on today's campuses can lead to devastating charges and penalties. (The accusations against Caleb Warner reportedly stemmed from such an encounter as well.) Should colleges promote responsible sexual conduct? Of course—but not by irresponsibly misusing charges of rape or trampling the presumption of innocence.
Cathy Young is a contributing editor at Reason magazine and a columnist at RealClearPolitics. A version of this article originally appeared at RealClearPolitics.