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Standards of Proof for Campus Sexual Misconduct Cases

Year: 2019
Type: preprint
Abstract: This paper is a contribution to the interdisciplinary volume, Adjudicating Campus Sexual Misconduct and Assault: Controversies and Challenges (Cognella Series on Family and Gender-Based Violence. Claire M. Renzetti & Diane R. Follingstad, eds., 2020). The chapter, Standards of Proof for Campus Sexual Misconduct Cases, addresses the continuing controversy over what standard of proof educational institutions should use in resolving allegations of sexual assault. After surveying recent developments under Title IX, in which the Trump Administration has proposed new rules to replace Obama-era guidance favoring the preponderance of the evidence standard, the chapter examines the competing understandings of sexual assault – as either a crime or a civil rights matter – that underlie the Administrations’ divergent approaches. From there, the chapter traces the evolution of Title IX’s legal framework from recognition of sexual assault as a form of sex discrimination to the Obama Administration’s more detailed guidance on the regulatory requirement of a fair and equitable process for handling such complaints. The chapter then considers and ultimately rejects arguments in favor of the new proposed rule changes, which would set strict limits on the use of the preponderance standard for such cases while granting broad leeway to use a higher clear and convincing evidence standard, even if not used for any other student disciplinary matter besides sexual misconduct. The chapter discusses the likely impact of such a rule change on institutional practice, concluding that switching from a preponderance to a clear and convincing evidence standard in such cases would have the unfortunate effect of messaging skepticism toward sexual assault complainants and discouraging reporting.
Language: English
Subfield: Gender Studies
Open Access status: green
OpenAlex ID: W3007497181
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Cited by: 2
Related to: 10