7 things you should know about evidence in campus rape proceedings

Today, our favorite rape denialist Emily Yoffe wrote a really troubling article on campus gender-based violence adjudication, full of ethical, legal, and factual errors. There’s too much to address in one article (I’ll get to the rest in a few pieces), but one of her most damaging misrepresentations is around how much evidence is required in these disciplinary proceedings. 

It’s not, as Yoffe claims, a violation of “men’s civil rights” — but instead the standard for civil rights litigation. Forgive me for getting all lawyerly on you to share seven things you should know:

1. The Department of Education requires that schools determine culpability for gender-based violence based on the “preponderance of the evidence.” That means that if most of the evidence points in one direction or the other, that’s the decision the college should make.
2. Critics like Yoffe think this is too low a standard, comparing it to the standard used in criminal courts (“beyond a reasonable doubt”) or that used in civil litigation with huge monetary fines (“clear and convincing”).
3. The preponderance standard isn’t some loopy idea used only in campus adjudication. It’s also the standard civil courts use for almost all decisions, required for adjudication under the Prison Rape Elimination Act, etc.
4. One reason criminal courts use a higher standard of proof than civil courts (and universities) is that the stakes are much higher. Procedural protections run along a spectrum proportional to the severity of the possible punishment. The result of a criminal trial can be incarceration or even death, so we need evidence that ensures belief “beyond a reasonable doubt.” Getting kicked out of school sucks, but it’s not the same as imprisonment.
5. Another reason for different standards in different legal settings is that adjudication of civil rights claims — as oppose to criminal claims — puts the accuser and the accused on an equal evidentiary playing field. The alleged victim, not the alleged perpetrator, still has to prove the case. But because the statute is about equality, we take both parties’ continue education equally seriously, so we don’t tip the evidentiary scales too far in favor of the accused.
6. Contrary to what Yoffe writes, the preponderance of the evidence isn’t the lowest standard possible. That would be “substantial” evidence, which is the basement standard of review courts have found constitutionally required for public universities. That means Title IX requires a higher standard for gender-based violence adjudication on campus than is constitutionally required for all other disciplinary procedures. Due process advocates should hold up Title IX as an aspiration for all campus adjudication, not a threat to procedural justice.
7. The Department of Education didn’t “lower” the standard to the preponderance, as Yoffe claims. Yes, some schools used “clear and convincing evidence,” which is higher, but some didn’t.