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Opinion: Raise the standard of evidence in campus sexual assault cases

Former DeKalb County District Attorney J. Tom Morgan is an attorney in Decatur and a professor of criminal law at Western Carolina University. In a column today, Morgan discusses the federal role in campus sexual assaults under Title IX, which prohibits discrimination based on sex in education programs and activities receiving federal financial assistance.

Under the Obama White House, the U.S. Department of Education pushed colleges to respond aggressively to allegations of sexual assault, leading to charges the rights of the accused were being trampled.

Last week, U.S. Secretary of Education Betsy DeVos met with students, parents, schools, advocacy groups and experts behind closed doors to learn about their experiences. Her daylong meetings included victims of sexual assault and students who, according to ED, “have been falsely accused and disciplined under Title IX.” DeVos is investigating whether directives from ED’s Office of Civil Rights have led to protracted and unfair investigations.

Following her meetings, DeVos said she wants to balance the rights of accusers and the accused. But women’s groups worry a retreat might be underway that would return campuses to the era when college administrators discouraged victims from pursuing charges by suggesting they were partly to blame.

Adding to those fears was a statement to The New York Times by the top civil rights official at ED, Candice E. Jackson, that many accusations don’t hold up. “Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right,’” said Ms. Jackson, who quickly stepped back from the comment and apologized for it.

Colleges deal with many sexual assault cases through their own judicial process. Such tribunals require a lower burden of proof, which has raised concerns, including those Morgan writes about today.

The issue arose this year in the Georgia General Assembly, where state Rep. Earl Ehrhart, R-Powder Springs, sponsored a bill to address what he said were false accusations that were still investigated and even punished by Georgia college officials. “I want to treat these crimes with the seriousness they deserve, ” Ehrhart told the AJC. “But I am not going to sacrifice due process to get there.” Sexual assault victims rallied against the bill, which failed.

With that background, here is Morgan’s column.

By J. Tom Morgan

The U.S. Department of Education is considering whether to change the burden of proof in what is commonly referred to as Title IX campus sexual assault cases from “preponderance of the evidence” to “clear and convincing evidence.”

J. Tom Morgan

Prior to 2011, college campuses were able to decide which burden of proof to use and many campuses required the clear and convincing evidence standard in deciding whether to find a person guilty of sexual assault. However, the department issued an edict in 2011 that all campuses must adhere to the much lower standard of proof, preponderance of the evidence, in determining guilt for sexual assault. Preponderance of the evidence standard is the lowest standard of proof in legal proceedings.

Beyond a reasonable doubt is the highest standard and is what is required in criminal convictions. Clear and convincing evidence standard of proof is greater than the preponderance of the evidence standard, but lower than that required in criminal cases.

The standard of proof is important is because of the devastating consequences for a student who is found guilty of sexual assault by a college tribunal. When a student is found guilty of sexual assault, the student will be expelled and the expulsion will remain with the student for the remainder of his or her life. Entry into another college is almost impossible with an expulsion, and prospective employers will also demand a copy of all college transcripts which will include the expulsion for sexual assault.

I have represented several students in Title IX hearings. While almost all the accusations of sexual assault are against male students, I was also involved in a same-sex alleged sexual assault involving two women. When the standard of proof is so weak as the preponderance of the evidence, all that appears necessary for a finding of guilt is an accusation by the accused.

In one case, both parties were too intoxicated to remember whether or not they had sex. The only evidence of possible sexual contact was they woke up together unclothed. The alleged victim said that she did not know whether they had sex, but if they did have sex she did not consent to it. The hearing panel found this was sufficient to meet the preponderance of the evidence standard, and our client was expelled by a local university.

There is no question sexual assault is a reality on college campuses. Colleges and universities must do a better job of educating male and female students regarding sexual assault prevention. However, before a finding of guilt of sexual assault by a hearing panel, the evidence against the accused must meet a standard commiserate with the impact of the finding, and that standard is clear and convincing evidence.

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