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Should College Campuses Be Required to Use the Same Standard of Guilt as a Criminal Court Would for Allegations of Sexual Assault?

Colleges in the last few years have made significant strides in their attempt at cracking down on sexual assault and rape on their campuses. The Department of Justice estimates that almost 1 out of 5 females on a college campus will be a victim of sexual assault or an attempted sexual assault during their time at a four-year institution. Colleges attempting to facilitate their own investigations of any reported sexual assault often try to set up an investigatory process whereby the school hears the two accounts of the event, any testimony from eyewitnesses, and then either dismisses the case or suspends/expels the assaulter. Due process in a collegiate investigation is a very different right than due process in our criminal justice system.

Differing Standards: “Preponderance of Evidence” vs. “Beyond a Reasonable Doubt”

However, many individuals who believe they are not given a fair shake at due process in the collegiate system are starting to push forward actions stating that the collegiate system’s due process should closely mirror that of the criminal justice system. Though a student will never be sent to jail by the collegiate system, he or she may be suspended or expelled based on a standard of proof that is much lower than the criminal justice system. In the collegiate system, the standard of proof is based on a “preponderance of the evidence” where the standard is a fairly low one; students are guilty if it is more likely than not that the sexual assault occurred than it did not occur. In the criminal justice system, the standard of proof requires “beyond a reasonable doubt”. This standard asserts that a reasonable trier of fact would find that it is beyond a reasonable doubt that the criminal defendant in fact committed the offense.

Reasoning Behind the Use of Lowered Standards in College Investigations of Sexual Assault

Starting in 2011, though several collegiate institutions had a higher threshold than “preponderance of the evidence”, the Department of Education threatened colleges with violating Title IX and possibly losing federal funding unless collegiate hearings for sexual misconduct would be tried at a lower standard. One student asserted that his college’s threshold did not permit him to cross-examine the investigator, turn over evidence of text messages to show consent and a prior relationship with his partner, among other due process violations that occurred. Being tied to the expulsion from his college for sexual misconduct has had a negative impact on his ability to move past the expulsion, and he filed suit under the pseudonym John Doe against the Department of Education for their due process disparities.

The Effect of Doe v. Lhamon on Collegiate Investigation Standards

In Doe v. Lhamon, “John Doe” had a sexual encounter with “Jane Roe” back in 2013. Roe brought her case to the university, stating that she was unable to consent to the sexual activity due to alcohol consumption. Though the university’s standards held that investigations and findings should be held to a “clear and convincing” standard, the Department of Education’s threat to withhold funding led to the university ultimately maintaining a “preponderance of the evidence” standard.

Though college campuses are looking to overcorrect a long history of sexual assault/rape culture in their institutions, many believe that because the defendant students are being threatened with civil damages, such as being expelled from their school or banned from participating in the school activities, the standard that they should be measured by should be based on the civil standard of “clear and convincing evidence.”

Experienced Criminal Defense Attorney in Fort Lauderdale

If you or a loved one have been arrested for an offense relating to sexual assault, the criminal justice system will judge your case based on the “beyond a reasonable doubt” standard. To better understand what that standard means, it is important to speak with an experienced defense attorney like Kevin J. Kulik who can guide advocate on your behalf. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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