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?
And from the comments:
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.