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How Title IX Sexual Assault Injustice Operates

Calculating how preponderance of the evidence falsely 'convicts' the innocent on campus.

SexualAssaultJoshuaRaineyDreamstimeJoshua Rainey/DreamstimeIn his Commentaries on the Laws of England, William Blackstone declared, "It is better that ten guilty persons escape, than that one innocent suffer." In an 1785 letter, Benjamin Franklin was even more exacting: "That it is better 100 guilty Persons should escape, than that one innocent Person should suffer, is a Maxim that has been long and generally approv'd, never that I know of controverted."

In 2011, the U.S. Department of Education took a different position.

That was the year the department's Office of Civil Rights sent a "dear colleague" letter reinterpreting Title IX of the Education Amendments Act of 1972. That section reads: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." The OCR's letter declared that sexual assault is "a form of sex discrimination prohibited by Title IX." (Sexual violence is a great deal more than discrimination, of course, but set that aside for the moment.) Afraid of losing their federal funding, colleges then set about devising grievance procedures to address complaints of sexual harassment and sexual assault on their campuses.

The problem: The OCR decreed that these Title IX tribunals must eschew "the 'clear and convincing' standard"—that is, that they cannot refuse to punish people unless "it is highly probable or reasonably certain that the sexual harassment or violence occurred." Such procedures, the office explained, "are inconsistent with the standard of proof established for violations of the civil rights laws." Instead the tribunals should embrace the weaker "preponderance of the evidence" standard, in which "it is more likely than not that sexual harassment or violence occurred."

Without wading into the weeds of specific cases (I refer readers to the excellent and thorough reporting of my Reason colleague Robby Soave), it is apparent that applying a lower standard of proof means that it is easier to punish those guilty of sexual violence. Conversely, it also means that more innocent people will be falsely found guilty of offenses they did not commit.

So how high a risk of false conviction do the innocent face under the OCR's Title IX guidance standards? John Villasenor, a professor of public policy at the University of California, Los Angeles, set out to answer that in a study that uses probability theory to model false Title IX convictions under the preponderance of the evidence standard. What he found should take all fair-minded Americans aback.

Villasenor begins by examining how legal scholars assess the stringency of burden of proof when it comes to determining the guilt or innocence of defendants. For example, surveys of judges, jurors, and college students find that when it comes to determining guilt beyond a reasonable doubt, they converge on a 90 percent probability as the threshold for finding that a defendant has committed the infraction as being fair. For

the preponderance of the evidence standard, the figure is 50 percent. The lower standard of proof doesn't merely make it more likely that someone will be convicted; it provides prosecutors a greater incentive to risk bringing a case.

Villasenor outlines an example in which 100 people are accused of wrongdoing. He supposes that 84 are guilty and 16 are innocent. Now suppose that the tribunal convicts 76 of the guilty while letting eight guilty individuals go, and that it acquits 12 of the innocent while convicting four. The overall probability of conviction is 80 percent (76 guilty + 4 innocent), and by definition the probability of being innocent is 16 percent. But since four innocent defendants are convicted, there is a 25 percent probability (4 out of 16) that an innocent person will be found guilty.

Villasenor aims to be very conservative in his estimations, so he decides to use a four percent threshold that an innocent defendant would be wrongly convicted under the beyond-a-reasonable-doubt standard. (He draws that number from a 2014 study that estimated at least 4 percent of death-sentenced defendants in the U.S. would likely be exonerated.) To be even more cautious, Villasenor does additional probability calculations using a 1 percent threshold that an innocent person would be convicted under the reasonable-doubt standard.

If there is a four percent probability that a tribunal using a reasonable-doubt threshold of 90 percent will return a guilty verdict in a case, what happens when that tribunal shifts to a preponderance-of-the-evidence threshold of 50 percent? "When the preponderance of the evidence standard is used to judge an innocent defendant, a guilty verdict would be returned with probability 33 percent," finds Villasenor. What happens if the reasonable doubt threshold is tightened to an implausibly stringent 1 percent? Even in that case, an innocent person would face "a 19 percent probability of being found guilty under a preponderance of the evidence standard."

Villasenor tests his conclusions using various probability models. Using even the most conservative assumptions, he concludes, "an innocent person facing a 4 percent probability of being found guilty under the beyond a reasonable doubt standard would face a 20 percent probability of being found guilty under a preponderance of the evidence standard."

The OCR's defenders argue that campus tribunals cannot fairly be compared to criminal courts of law. Well, yes: Besides the relaxed burden of proof, they also dispense with many of the basic aspects of due process, such as a right to counsel and a right to question the accuser. Villasenor thus concludes that "innocent defendants in Title IX proceedings may be even more exposed to guilty verdicts than the approach used here suggests."

During her Senate confirmation hearing, Democratic committee members pressed Betsy DeVos to uphold the Obama administration's Title IX guidance if she became secretary of education. She responded that such a pledge was "premature." DeVos added, "If confirmed, I look forward to understanding the past actions and current situation better, and to ensuring that the intent of the law is actually carried out in a way that recognizes both...the rights of the victims, as well as those who are accused."

Sexual assault is wrong and absolutely should be punished. Victims' rights advocates are clearly right when they argue that the lower burden of proof makes it easier to punish the guilty. But at what cost to the innocent?

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  • Citizen X - #6||

    What he found should take all fair-minded Americans aback.

    All eleven or so of us!

  • John||

    Ron,

    It is actually even worse than you portray. It is not just the likelihood of an innocent person being convicted in such a tribunal, it is also the type of innocent person who is likely to be convicted under such a standard. The thing that the beyond a reasonable doubt standard does more than anything is taking the burden off the defendant to prove their innocence. In a tribunal with a beyond a reasonable doubt standard, the defendant isn't required to present any evidence of their innocence. It helps if they do, but they do not have to. They can win by just poking holes and creating doubts in the government's case.

  • John||

    People usually don't give much thought to why such a system is good. They just assume it is. It is good for a lot of reasons but one of the most important and least considered is that by taking the burden of proving their innocence away from a defendant it makes it less likely that a jury convicting a defendant based on how likable or socially acceptable they are. It is a well-known fact that respectable looking well spoken and intelligent defendants are acquitted much more often than unintelligent and less socially adept ones are regardless of the quality of the evidence against them. Juries are human and have a bad habit of judging people by their appearance and impression they give. The beyond a reasonable doubt standard is really the only restraint on that tendency. Go to a preponderance of the evidence standard and you place the burden of proof to some degree on the defendant and pretty much every case will be decided by such factors.

  • Nuwanda||

    Well said.

    It goes deeper to the very idea of not just truth (which is subjective) but to reality, the provable facts.

    The burden can never be on the accused since any accusation or assertion is possible. The growth of administrative law (regulations made by bureaucracies but never actually codified) has led to the breakdown of this principle. In many jurisdictions the burden has been moved to the accused. Tax law is one such area. You've got a nice car in your garage that your income does not appear to support and the state may prosecute you on that fact. You are required to prove how you paid for it. You right of silence is in effect denied. You can now see why the cash economy is being marginalised.

    People usually don't give much thought to why such a system is good. They just assume it is. It is good for a lot of reasons but one of the most important and least considered is that by taking the burden of proving their innocence away from a defendant it makes it less likely that a jury convicting a defendant based on how likable or socially acceptable they are.
  • InTheKnow||

    Exactly. In this case the male was Hispanic with language based learning disabilities that were not accommodated throughout the process. The female was white. Who do you think presented themselves with greater credibility?

  • Bill||

    Particularly when the defendant is not allowed to know what the charges are, have counsel, or address the accuser, even in writing. So, it is very difficult to "poke holes" in the other sides arguments.

  • Enjoy Every Sandwich||

    But at what cost to the innocent?

    As any good progressive knows, nobody born with a penis is innocent unless they're gay or transgender.

  • John||

    Or Muslim.

  • Brandybuck||

    "born with a penis" == "cis-penis"

  • Diane Reynolds (Paul.)||

    So the turquoise ribbon is for sexual assault?

  • ||

    It's teal and I hope to God they adopt the deer as their mascot.

  • Thrawnuru||

    This association seems complicated. Can you explain it briefly? Just give me a TL;DR version

  • Mr. Dyslexic||

    +1 Bambi

  • Free Society||

    GET OFF ROBBY'S TURF

  • American Memer||

    this was also roughly my thought upon seeing the byline

  • DCR1||

    Injustice is everyone's turf to speak out against

  • gah87||

    And ending a sentence with two prepositions is something to be proud of within.

  • ||

    Besides the relaxed burden of proof, they also dispense with many of the basic aspects of due process, such as a right to counsel and a right to question the accuser. Villasenor thus concludes that "innocent defendants in Title IX proceedings may be even more exposed to guilty verdicts than the approach used here suggests."

    Gotta love scientists! Maybe more exposed! Maybe less! We'll never know!

    There's empirical proof that the lower standards lead to a general disregard for due process (including the abrogations mentioned as well as others) but there's a slim chance that all this whimsy coalesces into fairness and impartiality!

  • John||

    As I tried to explain above, though not very clearly, trials have a tendency to become personality contests. Juries look for reasons to believe people they like and not believe people they don't. When you place a high bar of proof, it greatly reduces the chances a jury will find someone guilty because of their personal feelings towards them. A reasonable jury can look at someone they don't like and think "I bet he did it", which is a conviction under a preponderance standard, and but still won't think "I know with reasonable certainty he did it", which is what it takes to convict someone beyond a reasonable doubt. Tribunals that have the preponderance standard, are just going to be beauty contests between the victim and the defendant.

  • ||

    As I tried to explain above, though not very clearly, trials have a tendency to become personality contests.

    It's a bit tastes great/less filling, but there's documented proof that it's worse than this. Abandoning the presumption of innocence for the preponderance of evidence doesn't lower the standard by skimming off the top, it does so by dropping out the bottom. Popularity contests at least offer the defendant a chance to comb his hair and put on a suit. Robby has documented cases where *employees* (of the female variety even) arguably have their Constitutional Rights violated* without ever knowing what crime they committed against whom. The situation is so fundamentally broken that a data scientist, trying to seem impartial, comes across (or should) as being criminally insane/negligent on the matter.

    *Nobody's owed a paycheck and the University may/may not be an agent of the state... yadda, yadda, yadda.

  • John||

    Some people are just weird even when they do comb their hair. And a preponderance of the evidence standard is going to be brutal on them. Such a standard lets the smart and attractive criminals off while hammering the outsiders and the socially inept.

  • gah87||

    But there is no jury in most of these cases. They are usually the equivalent of administrative hearings, and guilt or innocence is determined in advance of the hearing. To be accused is viewed as a big step toward being guilty, especially if the accused is from a class considered to be guilty in general, e.g., a male athlete or frat bro. Preponderance of evidence simply makes it easier for the administration to justify its accusation and defend against future civil suits.

  • Hail Rataxes||

    There's empirical proof that the lower standards lead to a general disregard for due process (including the abrogations mentioned as well as others) but there's a slim chance that all this whimsy coalesces into fairness and impartiality!

    Dude, you should really consider learning how to read at some point.

  • John||

    So should you, but it seems beyond you. There is nothing untrue about his statement. If you lower the standard of proof, juries tend to make decisions based on prejudice and superfluous reasons besides the evidence.

  • Hail Rataxes||

    There's nothing untrue about his statement that this post is about someone who thinks "there's a slim chance that all this whimsy coalesces into fairness and impartiality"?

    Why do you feel the need to lie so much?

  • Agile Cyborg||

    When victims are mystical human substrates representing the promulgation of towering ideals the rights of innocents are a handicap that burdens the greater process.

    How else are millions upon millions slaughtered in ideological fields while afterward the ideology continues on unabated though the ensuing decades still gathering swarms of adherents intent on its survival?

  • Brandybuck||

    How else are millions upon millions slaughtered in ideological fields while afterward the ideology continues on unabated though the ensuing decades still gathering swarms of adherents intent on its survival?


    We were talking about sexual assault. Stop changing the subject to abortion!

  • Citizen X - #6||

    I assumed he was referring to the foreskins so ruthlessly disposed of following circumcision procedures.

  • wareagle||

    Victims' rights advocates are clearly right when they argue that the lower burden of proof makes it easier to punish the guilty.

    And unwittingly (perhaps), those advocates have done more to harm actual victims than help them. These kangaroo court proceedings are not quite epidemic, but they're not that rare, either. Each case of a male student being expelled only to find out that either his female accuser lied or the process itself was bastardized by a zeal to convict only makes the sledding that much harder for genuine victims.

  • C. S. P. Schofield||

    It's worse. It seems to me that, in addition, the whole Trubunal kangaroo court mess guarantees that a GUILTY man will go free, should he be sent to trail. They will have bitched the evidence so thoroughly that giving him a fair trial will be impossible.

  • Brandybuck||

    The OCR's defenders argue that campus tribunals cannot fairly be compared to criminal courts of law.


    I have long said that by not trying rape as a crime you are asserting that rape is not a crime. The problem is not so much the level burden of proof as it is the lack of actual criminal proceedings. Treating rape as a collegiate administrative infraction trivializes the crime of rape.

  • Agile Cyborg||

    Treating rape as a collegiate administrative infraction trivializes the crime of rape.

    Only to a mind embracing logic. Reality is murky and consequential to these people- so it goes with their ambiguous approach to 'justice'.

  • John||

    The problem for colleges is the cases where there is a credible accusation of rape but not enough evidence to convict. Suppose you have a case where a female student makes a credible allegation of rape. You turn it over to the authorities, they charge the defendant and it goes the trial. The defendant is then acquitted. Remember, you can be factually guilty of something and still be legally innocent because the government could not prove it beyond a reasonable doubt.

    I think it is a fair question to ask what colleges are supposed to do in these situations. I can understand why a woman who believes she was raped and by the evidence probably was raped could have a real problem with the guy who raped her still going to the same college she goes to. And I can understand why the college would as well.

    The easy answer is to tell the woman "fuck you too bad he was acquitted". But, do you as a college really want a student on your campus that the evidence shows probably raped another student?

    I still side with saying too bad the acquitted or uncharged defendant stays in school. But I understand the other side to it. The standard for being thrown out of school is lower and should be lower than the standard for being thrown in jail. It is a tough problem.

  • damikesc||

    If you have a "credible" case that cannot be proved in court, it is not that credible.

    Her "belief" is immaterial. We cannot work with what somebody BELIEVES. As a college, it is not your job to decide that the courts were "wrong". Colleges are amazingly terrible at it.

    Why don't colleges just ban ALL alcohol on campus, ban co-ed dorms, and institute strict curfews of 7P so that the risk is gone?

    There should be no lower scale to be thrown out of school for a "crime" as it effectively ends your collegiate career (colleges are quite unwilling to take in students who were thrown out of college for rape/sexual assault) and impacts the rest of your life. If you're going to fuck over a student FOR LIFE, then there best be a damned good reason and it better be based on an airtight case.

  • John||

    If you have a "credible" case that cannot be proved in court, it is not that credible.

    That is just simply not true. If it were, there would be no difference between the preponderance and beyond a reasonable doubt standards. You can absolutely have a credible accusation of rape and think that the victim is likely telling the truth but for one reason or another have a reasonable doubt about that. In such a case, you must acquit the defendant.

    Rape is a specific intent crime. The mistake of fact is a real defense in rape cases and one that is used successfully. Suppose you have a case where a woman is drunk and says she passed out and the defendant raped her. The accused says that no the woman wasn't passed out and that she consented. Who do you believe? Even if you believe the victim and conclude that she was blacked out and drunk and din't consent, you still should acquit if you also believe that it is reasonably possible, though not likley, that she blacked out and the defendent is telling the truth and reasonably thought she consented.

  • damikesc||

    But you have zero evidence that what she said was accurate. A case where the woman says she was drunk and blacked out --- she needs to provide evidence beyond her word that he fucked her when she was incapacitated. Not just that he fucked her, but that she was unconscious. It's more likely that both were drunk.

    This isn't a "credible" case. It's pure "he said/she said", which isn't going to be credible. This falls into an idiotic decision was made which is not the same thing as a crime.

    If he is going to have the rest of his life fucked up, then yes, a conviction is required.

    Do colleges toss you out for plagiarism just because a professor said you did it? No, they tend to require evidence. But rape should be held to a lower standard?

  • John||

    But you have zero evidence that what she said was accurate.

    Not true. You have her testimony. That is evidence. There is nothing that requires corroborating evidence of a witness. You as a juror can believe what the person says and convict based on it. Moreover, you could have lots of corroborating evidence that what she says is true. You could have evidence that she was at the scene, that she was drinking heavily, that she was at one point in the evening passed out and so forth. All of that makes her testimony more credible. Just because you don't have corroborating evidence of the crucial fact doesn't mean that she is lying or that you can't believe her or that the circumstances surrounding the event cannot cause you to believe her testimony.

    This isn't a "credible" case. It's pure "he said/she said", which isn't going to be credible.

    That is not true. You are assuming that anything short of physical proof means her testimony is not credible. What if all of the circumstantial evidence I describe above confirm her account. You just don't have actual evidence she didn't consent beyond her word. She is telling the truth about everything else. She has no reason to lie. That makes her testimony credible. It may not, however, make it compelling beyond a reasonable doubt. You are confusing credible with beyond a reasonable doubt.

  • damikesc||

    You have his testimony saying the opposite. Her word has no more credibility than his. So, again, her accusation lacks credibility.

    You can have people say "Yeah, I saw her drinking". They could even say "at one point in the evening, we think she was passed out". That isn't proof that she was passed out when they were fucking. Hell, if they saw her passed out during the evening, unless another witness says "I saw him hauling her unconscious body around" (as blacked out folks do not move around very well on their own), then it is interesting minutiae without any relevance to the charge.

    There is this belief that her claim is credible, but I don't find ANY claims credible. I find a case credible. Is it difficult to fathom that she was incorrect?

  • Acosmist||

    damikesc doesn't have the first clue what relevant evidence is.

  • Ragoftag||

    You need to read some more on these cases. Many don't even fall on the 'he said/she said line. Several have been decided without even interviewing the male. And cross examination of 'she' is considered 'threatening' to her. Same with counter claims. One girl didn't even complain, others did the guy in over her objections.

    The 'good' thing, if such can be claimed, is that the schools are getting nailed in the courts when the men sue. I guess the Duke Lacrosse case has ruined the myth of 'she never lies'.

  • Diane Merriam||

    Many (not most, by any means, but a significant number of) women have reason to lie, and I'm saying that as a woman. On the other hand, proof of rape, unless you go to the hospital and/or tell others almost immediately or the rapist brags about it to others, it's a *really* hard accusation to prove *beyond a reasonable doubt*.

    There's also a broad middle line between consent and not. The woman who thinks that if she doesn't, she'll be outcast. The one who's afraid if she doesn't she might get hurt even if no actual or even implied threats have been made. And the large group who gives in quickly and feels guilty because she didn't fight "hard enough," whatever that standard may be. The latter two are even more prevalent in child molestation cases.

  • John||

    You don't know what happened. But since it is possible that she blacked out and wasn't really unconscious and her actions made the defendant reasonably think that she was consenting, you have reasonable doubt. Meanwhile, the victim doesn't' remember any of that and thinks of herself as being raped. And the accused may be lying his ass off. That doesn't matter. What matters is that his testimony was just credible enough to create a reasonable doubt. Her accusation remains very credible and likely true.

  • damikesc||

    The odds of him lying his ass off are the same as the odds of her lying her ass off.

    Feel free to differentiate, in the hypothetical, between a claim that is "likely true" (that she was blacked out drunk and FEELS she was raped) and one where the woman was not drunk, regrets the sex, and decides to lash out later.

    You won't be able to do so because the level of evidence of the claims are identical.

    She is the one accusing him of rape. It is all on her to prove it.

  • Bubba Jones||

    The preponderance of the evidence standard puts an undue burden on the guy who isn't a schmuck.

    Both kids are drunk. Next morning, she convinces herself she was raped.

    He admits that maybe he isn't sure he got consent, because they were drunk and it was loud and his memory is fuzzy.

    But she is traumatized, so she doesn't face a cross examination where she might reveal she isn't 100% sure.

    Boom.

  • Bubba Jones||

    How often is this guy still in school by the time the trial is over?

  • Marshal||

    I think it is a fair question to ask what colleges are supposed to do in these situations.

    When someone is found not guilty of murder and some people still suspect they were guilty what do we do about it? Nothing.

  • John||

    So when a cop is found not guilty of murder, he should keep his job?

  • Rational Exuberance||

    I think it is a fair question to ask what colleges are supposed to do in these situations.

    Private colleges can do whatever they want to.

    Public colleges should do nothing, since they ought to be open to all citizens and tax payers.

  • damikesc||

    If private schools accept any federal monies, nope. Citadel learned that lesson.

  • Marshal||

    Afraid of losing their federal funding, colleges then set about devising grievance procedures to address complaints of sexual harassment and sexual assault on their campuses.

    This is not true. Colleges eagerly seized on this obviously non-authoritative pronouncement to devise the procedures they wanted but could not justify without triggering an unacceptable level of opprobrium.

  • damikesc||

    And this is provable because when the "regulations" are retired, they will not be changing their procedures without significant legal action against them. They weren't dragged against their will to do this any more than universities for at least 60 years have been pulled, against their will, to the Left.

  • TimothyLane||

    If the odds of a conviction are 50-50, they might as well just flip a coin. This would probably be fairer than trusting a tribunal set up by a college at the behest of government bureaucrats, especially those in the service of Obama. For leftists, the purpose of the justice system is no individual justice based on the facts of a case, but collective justice based on the relative victim status of the groups the people involved belong to. Thus, the purpose of a trial for an alleged sexual assault by a man against a womanis to convict the former regardless of the evidence.

  • MarkLastname||

    This actually would make good ground for a controlled experiment: have some 'undercover' students file fake reports on various campuses with different types of stories (he'll, you could even make fake 'evidence' such as witnesses or video evidence of feigned harassment for a positive control) then submit the reports through the actual process and see what the conviction rates are given the extent (or lack) of evidence.

    Of course no college would agree to play along and put fake students on their rolls for the experiment, lest they inconveniently find that there's a 75% conviction rate for clearly innocent men. Still an interesting thought though.

  • Nuwanda||

    Off topic, but can anyone tell me if there's an option to get email reminders when a comment is left on a thread? I can't see any such option.

  • Rational Exuberance||

    Sexual assault is wrong and absolutely should be punished.

    Sexual assault should be handled by police and the courts, under existing legal standards. It should not be handled by educators or university administrators, who lack the training, motivation, and resources to handle such criminal offenses.

  • block30||

    This, absolutely this.

  • MarkLastname||

    Buick Regal? Really?

  • ||

    the rights of the victims complainants

    FIFY

  • Slocum||

    But, of course, there are no 'juries of peers' in campus tribunals. The cases are decided by officials who are professionally predisposed to find accused males guilty and who have strong personal and institutional incentives to generate as many convictions as possible (in order to demonstrate that their institution is taking sexual assault 'seriously'). The idea that the accused have even a 50.1% chance of being exonerated is silly. Even where there is clear and convincing evidence of innocence (e.g. friendly text messages from the accuser), the evidence is disallowed and convictions are handed down.

  • block30||

    Yes. This was my experience in the military. There is huge pressure to show that sexual assault, harassment, whatever is taken seriously. I was gone after for something I wasn't even in the right country to have supposedly committed a crime, but then the allegations changed to fit their narrative. This shit is real.

  • Principal Spittle||

    This phenomenon is an extension of trends in criminal justice. Sex crimes carry such emotional impact, juries are easily swayed by the horror of the crime. Presenting the accused with the maximum sentence possible, prosecutors ask the defendants to plea based on the preponderance of evidence.

    Blacks accused of rape have good reason to fear white juries. Men (all defendants of this type) have good reason to fear female jurors. Anyone previously convicted of a sex crime probably should not talk to strangers.

  • RichS63||

    I'm sorry but I missed the part where colleges were empowered to set up their own kangaroo court proceedings. Sexual assault is a crime. It is punished by the state. The basic concept of it is better to see a guilty man go free than an innocent convicted fell by the wayside before I was born. Anyone who claims the presumption of innocence exists is out of their mind. The standard of preponderance of the evidence means one can make any claim they wish and it is evaluated to be true or not. It is the standard used in traffic court and results on guilty verdicts far more than 50% of the time. How many women claim to be assaulted when they haven't been in every day life. I can provide no definitive answer but it is far too many. Now place those claims in the almost zero scrutiny of a campus hearing. Common sense tells us what the results will be before we even bother to look. How many people have had their lives effectively destroyed by these clown courts who deny those accused their most basic Constitutional rights? Colleges don't allow free speech if it is offensive. What chance does anyone falsely accused have in such an environment? Almost none.

  • Chris_Halkides||

    People who don't believe that there will be more wrongful findings of culpability are engaging in magical thinking, as Professor Villasenor showed. I attempted to make this point in a qualitative way with a self-appointed "survivor" advocate some time ago, but it did not go well. This individual trotted out the argument that only 2% of rape accusations were false; therefore, actual guilty verdicts were better than 90% certain of being correct. There are a number of problems with this argument, not the least of which that it is an empirical fact that some findings of culpability would be decided differently at the clear-and-convincing standard (some adjudicators have said exactly that).

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