Title IX and the weakening of due process

As I wrote last week, I think the only thing that the Trump administration has done that has improved our country is to issue, through the much-despised Betsy DeVos, new guidelines for adjudicating accusations of sexual assault and misconduct in American universities. (Do I really need to add here that I think DeVos’s appointment was abysmal?) The new guidelines, which allow for cross-examination of accusers and the accused, put in place objective “judges” of misconduct in colleges, and make all the evidence available to the accused, are things that are normal in criminal courts as part of due process, but were removed by the Obama administration in their reform of Title IX regulations.

Many people have objected to these changes, considering them to be rules put in place deliberately to favor the accused and weaken the rights of accusers. Those holding this view include, astoundingly, the American Civil Liberties Union, which for all other crimes fights for due process for the accused. (See here, here and here for other arguments that the new regulations are biased against “survivors”—which of course presumes that accusers are correct from the outset and thus no hearing need be held.)

Why, among all crimes adjudicated on campus, are sexual assault and harassment exceptions when it comes to due process? I think it’s for two reasons: these crimes affect mostly women, and tightening regulations about how to judge them could be seen—mistakenly, I think—as anti-women or even misogynistic. Further, unlike many crimes, sexual assault often leaves no tangible evidence that could lead to a “beyond a reasonable doubt” conclusion, frustrating many real victims who realize that their assailants can never be brought to account.

While I sympathize with these views, I think the standards of due process that are part of our justice system, and should be part of college tribunals, should be upheld, even if it leads to some people getting off because there’s not convincing evidence. That is, I think the established standards of law lead to a system that, although it allows some guilty people to walk free, is the fairest to all. (Note that the new regulations, though,  don’t mandate a “beyond reasonable doubt” standard for college conviction, but simply “clear and convincing evidence” for guilt—usually taken to mean a 75% instead of a 51% likelihood of assault.)

I was heartened to see at least one experienced criminal-defense attorney agree with me: Scott Greenfield, lawyer, writer, and frequently used legal expert in the media. I don’t know anything about his politics, but only what he says in this edifying (and longish) interview with Conor Friedersdorf at The Atlantic

I’ll give just two excerpts from a piece worth reading in its entirety. The first is about the unhealthy and hypocritical gutting of due process in cases that involve sexual assault, and only sexual assault:

Friedersdorf: What’s an example of a principle that you find yourself advocating for even as you perceive that American society is undervaluing it?

Greenfield: Let’s start with a big one, due process. Advocates for accusers in Title IX campus sexual-assault adjudications have vilified due process as allowing rapists to “get away with it.” This has been amplified as a result of the “Dear Colleague” letter by the Obama administration’s Department of Education Office of Civil Rights bureaucrats and Trump administration Education Secretary Betsy DeVos’s rescission of that letter. It is further complicated by the #MeToo movement.

The laundry list of basic procedural due-process rights—notice, opportunity to defend, cross-examination—have been ripped to shreds as unfair, traumatic weapons to victimize accusers. Of course, these are the same processes that are desperately at risk in non-sex-related criminal cases, where a similar cohort demands they be provided and honored. Why are they good for some accusers and horrible for others?

If cross-examination is an evil because it might “re-traumatize” the victim, is that not the same when the victim is in court for a robbery? If we’re to “believe the victim,” to functionally undermine the presumption of innocence and shift the onus onto the accused to prove they’re not guilty, how do we explain not believing the victim in any other criminal proceeding? And before anyone replies, “But we do,” no, criminal-defense lawyers don’t. No accusation is above challenge.

Either the concept of due process is an inherent virtue in our system or it isn’t. It doesn’t morph from wonderful to horrible based upon the nature of the accusation, or which side is preferred at any moment. As the concept is vilified, procedural fairness is increasingly seen as some technical trick to favor the accused rather than giving the accused a fair opportunity to defend himself. And lest there be any doubt, not only is it an inherent virtue in all proceedings, but without it we’re left with an inquisition. Then again, when it comes to proceedings like Title IX sex policing, that’s pretty much what’s desired by the accusers, even though it’s in fundamental conflict with core premises of our jurisprudence.

(He adds later) . . . the college-educated left is a mess of contradictions. A coalition that only recently counted redemption for violent felons as a top priority, and favored laws forbidding employers from asking about bygone crimes on job applications, now advocates for zero-tolerance policies to punish behavior from years in the past and—for example—isn’t necessarily willing to grant that Louis C.K. should ever work again.

But, you might object, the weakened due process is in colleges, not in courts, and why shouldn’t colleges use different standards of guilt than do courts of law? Greenfield explains:

Friedersdorf: The most common retort seeks to distinguish criminal proceedings, where the accused faces incarceration, from ostensibly lower-stakes situations, like campus disciplinary hearings where expulsion from one institution is the maximum penalty; workplace complaints, where the stakes end at termination; and name-and-shame efforts, like that story about a bad date with Aziz Ansari, where social stigma and public embarrassment are the main consequences. What’s your counterargument for applying due-process norms beyond criminal proceedings? And how far does the logic extend? Whenever there is official punishment meted out by any institution? What about public allegations of sexual misconduct with no institution or formal penalty attached?

Greenfield: First, let’s separate “official punishment” from social stigmatization. To say Title IX is limited to expulsion, in itself, trivializes the impact. Expulsion from college is a huge punishment to a kid. But that’s not the extent of it by a long shot. He loses years of studying, preparing to get into a decent college. He loses tuition paid for the years preceding expulsion, or carries the debt load into an empty future, plus the opportunity cost of going to three and a half years of college and leaving without a degree.

And he’s tainted for life, as he’s constrained to explain his expulsion, like any sex offender. Except his “guilt” and punishment were derived without the basic safeguards for a valid verdict. This is by no means trivial.

In certain ways, social condemnation has become something even worse, the mere accusation being all that’s required for a mob of unduly passionate people to crush a career. There’s no opportunity to defend and no means to challenge an accusation. While the “punishment” isn’t levied by government, and is therefore beyond any required involvement of such niceties as due process, the net result can be as destructive given the current tide of blind acceptance and capitulation.

While due process is properly thought of as technical legal rules, it didn’t come out of nowhere; it came from the values society decided were worthy and necessary to craft a system of decision making before anyone would be condemned and punished. So although due process doesn’t technically apply, the values underlying due process are still as worthy and necessary as ever. It’s not because the rules require it, but because we, as a society, should value such things as fundamental fairness, opportunity to defend, the presumption of innocence, a neutral fact finder, and the burden of proof, at whatever level it should be, on the accuser.

I sense that by favoring the new and fairer standards, I might be accused of weakening the rights of “survivors” or even buttressing what they call “rape culture” in America. I reject that charge while still recognizing that sexual assault is a horrible crime that can traumatize people for their entire lives. My point here, and Greenfield’s, is that there’s no good reason to use different standards when judging, say, murder or assault on the one hand (crimes often difficult to “prove”) versus sexual assault on the other. And, like Greenfield, I think the same rights that obtain in court—namely the right to be confronted with your accuser, to have everyone cross-examined (note: the new rules do not decree that an accuser be examined by the accused, only by a representative or lawyer), and to have all evidence, exculpatory or not, available to everyone—should hold in college hearings.

I still see a place for a college tribunal separate from a legal one, but would always urge (but not mandate) that people who have been assaulted in violation of the law go to the police. If you don’t do that, then, despite the potential trauma of reporting and going to court, or of not having anyone charged by the prosecutor, it’s guaranteed that a perpetrator will go free to commit further crimes.

As for the 75% instead of “beyond a reasonable doubt” likelihood now recommended for colleges, I don’t have strong feelings about it, and can see some cases in which those standards might be better in colleges than in court. My thinking on that is still evolving.

62 Comments

  1. BJ
    Posted November 27, 2018 at 11:11 am | Permalink

    “Note that the new regulations, though, don’t mandate a beyond reasonable doubt’ standard for college conviction, but simply ‘clear and convincing evidence’ for guilt—usually taken to mean a 75% instead of a 51% likelihood of assault”

    I think your very last paragraph suggests that you’re aware of the following, but my understanding of the new guidelines is that they allow colleges to start using a “clear and convincing” standard, but do not require them to do so. I believe colleges are still allowed to use the lower “preponderance of evidence” standard if they wish. I’m not certain on this and, if anyone has an explanation, I’d appreciate reading it.

    • Posted November 27, 2018 at 11:14 am | Permalink

      I think that is right, but they are also not allowed to use a lower standard of proof than they use in other types of misconduct, such as plagiarism.

    • Posted November 27, 2018 at 11:29 am | Permalink

      Yes, I believe I said that in my previous post on this. There seems to be a choice offered, and of course most colleges will stick with the old standard if they do have a choice.

    • Harrison
      Posted November 27, 2018 at 12:07 pm | Permalink

      Courts have consistently ruled against colleges using the lower standards of evidence in lawsuits brought on by kids who were railroaded by this system. I had some sympathy for the colleges even as they were doing this because the choice given to them by Obama era OCR policy was “lose your federal funding now or lose money in court later.” I think only the schools that are ideologically wedded to “believe the accuser” will stick with the old standard and keep being punished for it.

      • BJ
        Posted November 27, 2018 at 4:11 pm | Permalink

        Well, it doesn’t have to be the school that’s wedded to it. In all of the cases I’ve read about, the people who ran these processes were from educational and administrative departments that tend to be heavily social justice-oriented. Assuming the schools continue to allow such people to run these kangaroo courts (and there would probably be an outcry/protests on many campuses if they tried to change the personnel to more neutral people), the beliefs of those running the process won’t change.

    • Adam M.
      Posted November 27, 2018 at 1:12 pm | Permalink

      They have to use the same standard for everyone, including staff and faculty. Since they likely wouldn’t want to subject themselves to the arbitrariness of a 51% rule for disciplinary proceedings, it’s expected that they will in practice be compelled to move to the 75% rule.

  2. Posted November 27, 2018 at 11:12 am | Permalink

    As for the 75% instead of “beyond a reasonable doubt” likelihood …

    Which means, of course, that for every three people justly found guilty, one innocent person would be unjustly found guilty.

    Would anyone be happy with those odds if it were their son who had been accused?

    • Posted November 28, 2018 at 4:00 am | Permalink

      No.

      This 75% thing is nonsense. The standard is “clear and convincing evidence for guilt”. How do you get from there to 75%? Show me the calculations.

      Does anybody in one of these hearings assign probabilities to the different points of evidence and then do a Bayesian analysis to find out if there is a better than 75% chance of guilt? No they don’t. If they did, it would be cause for concern (because a rate of 1 in 4 convictions being false is unacceptable), but they don’t.

  3. Posted November 27, 2018 at 11:32 am | Permalink

    As I’ve said recently in other comments here, I really don’t see the need for a separate college system of justice. It seems as if the college world has found the real world lacking in many ways and has constructed a parallel system embodying their own set of values. They don’t really like free speech, adjudication in the courts, and jail as punishment. Sociologists will have a field day with this, if they aren’t already.

    • A C Harper
      Posted November 27, 2018 at 11:50 am | Permalink

      I think you can make an argument that colleges can run a disciplinary system, just like employers, to deal with unacceptable behaviour particular to an organisation.

      The difference is that you wouldn’t expect a commercial organisation to act when the general criminal law applies.

      There again the armed forces normally have quite broad standards of what is unacceptable behaviour.

      The whole thing is a mess. Like others have said *some* people are too fixated on obtaining their ‘ends’ to worry about details like the due process ‘means’.

      • Posted November 27, 2018 at 11:57 am | Permalink

        Sure, I didn’t say that colleges don’t need any systems. As you say, the problem is when their systems parallel those in the real world and seek to do a “better job”, though I suspect they don’t frame it this way amongst themselves.

        The armed forces are a good example of a parallel system but they do have some justification in thinking their world is not the same as the civilian one. They seem to do a better job of keeping their system parallel to the civilian world’s system, though they fall down badly in some areas such as sex crimes. It would probably do them well to eliminate the parts of their system that parallel the civilian one.

        • Randall Schenck
          Posted November 27, 2018 at 12:18 pm | Permalink

          Paul, part of the reason that the military does a terrible job with sexual assaults and sexual harassment it they do not get it out of the chain of command. This is a disaster, but the congress has to change it and they won’t, so far.

          • Posted November 27, 2018 at 1:33 pm | Permalink

            Sure but perhaps they should just put it through the US criminal justice system. I am sure that the abusers know they have a certain amount of protection in the military. They shouldn’t have it, IMHO. I know there would be complications with overseas deployment but I am confident they could be worked out.

            • Randall Schenck
              Posted November 27, 2018 at 1:58 pm | Permalink

              Maybe but I don’t see the criminal justice system in the civilian world as much better. If the military cannot see the light and get the authority away (out) of the chain of command it would not be any better. Imagine in the workplace if you have a sexual assault and your only place to go is to your boss or his boss. Often the assaulter could be your boss. And the chain of command is going to come after the accuser for giving it a blemish on the record.

      • Posted November 27, 2018 at 3:19 pm | Permalink

        That is not an argument, that is a necessity. A college has to have a process to discipline or expel students whose conduct is not in conformity with the college requirements of behavior.

    • Posted November 27, 2018 at 3:17 pm | Permalink

      Colleges have to have a process to determine whether to expel or discipline a student or not. That should not be mistaken for a system of justice that replaces or substitutes for the criminal justice or civil justice systems which are entirely different processes to serve entirely different functions.

      • Posted November 27, 2018 at 3:26 pm | Permalink

        Colleges can have a policy as to what to do with a student who is convicted by the civilian criminal justice system. If the student goes to jail, I don’t see any reason for the college to treat it differently than when a student leaves for any other reason. As for infractions that the criminal justice system doesn’t care about, such as falling below a minimum grade average, there’s no problem with the college handling it. I think the goal should be to get rid of the overlap between justice systems. Things get a lot simpler.

  4. BJ
    Posted November 27, 2018 at 11:33 am | Permalink

    I would recommend people read the rest of that article too. The whole conversation is fantastic, ranging from criminal justice reform to how we should think about and strive for systems that are most likely to produce the best outcomes, even if they sometimes produce outcomes that immediately offend our sensibilities. And much more. Greenfield and Friedersdorf have an excellent rapport.

  5. Posted November 27, 2018 at 11:39 am | Permalink

    My biggest beef is independent of the “always believe” stuff (which I am still working through). I oppose the idea of different justice systems for university campuses.

    • darrelle
      Posted November 27, 2018 at 1:16 pm | Permalink

      I agree. It seems perfectly understandable to me that universities need to have methods and means in place to deal with misconduct similar to the way businesses do. But when a crime has been committed regular law enforcement is the proper organization to handle it.

      It makes sense that universities need policies to determine if and what their response should be to a student or staff that has been accused of a crime that involves the university in some way, but the crime needs to be dealt with from start to finish by regular law enforcement. For example, if a student is accused of rape on campus I think a university is warranted in requiring the accused student to comply with certain measures to safeguard the victim from further contact pending the outcome of the case. But the case should be pursued by regular law enforcement and the university should not be able to expel the accused student until and unless the regular justice system renders a conviction.

    • Posted November 27, 2018 at 2:50 pm | Permalink

      I agree a college invistigation is no substitute for a criminal invistigation by law enforcement. But the college has a right to conduct whatever invistigation or process it chooses.

  6. J Cook
    Posted November 27, 2018 at 11:44 am | Permalink

    Education. Students entering college should have an orientation about sexual assault or harassment. Including what happens in society to those who are accused of a sexual crime guilty or not. As Greenfield says “tainted for life”. It might be difficult the get that through a thick headed 18 year old but worth the effort. “Tainted for life”.

  7. Randall Schenck
    Posted November 27, 2018 at 12:09 pm | Permalink

    My comments are pretty much the same as before. I see no reason why sexual assaults or rape accusations would be mingled with sexual harassment as this is not done any place else in our country that I know of. Our legal system does not consider most sexual harassment as criminal.

    Anyway, for some reason these are all lumped together in the schools. And in these schools we are going to have Tribunals where civilian, non-attorneys are going to hold judgement on sexual assault and sexual harassment accusations.

    Ask yourself if it is okay with you – if your kid is sexually assaulted on campus if you would consider this tribunal to settle your case.

    I would also say, for sexual harassment, this tribunal method is not the proper method to obtain good results.

    • Posted November 27, 2018 at 2:47 pm | Permalink

      I have my doubts about any process being a place to get good results. Including civil and criminal trials.

      • Randall Schenck
        Posted November 27, 2018 at 3:42 pm | Permalink

        I understand your thought but just think about this. If a person comes in with a sexual harassment problem it is nearly always a business of – this is what he is doing toward me. It is very often a he said she said and no evidence. You do not solve these things sitting around a table with a group of people taking statements. You send a trained person out to do a proper investigation and collect evidence. Maybe the investigator questions 20 or 30 people before he is done. He also questions the accuser in detail. Most of the time the investigator will end up with either, evidence that this was a one time thing or he finds 5 other people that this person is also harassing or has in the past. You do not get this stuff from a Tribunal.

        • Posted November 27, 2018 at 4:01 pm | Permalink

          I understand your point. I was e pressing my opinion that courts are not perfect either. But I agree they are better than tribunals.

      • Ken Kukec
        Posted November 27, 2018 at 3:50 pm | Permalink

        Is there another system you would swap ours for? Or specific reforms you’d suggest for ours?

        • Posted November 27, 2018 at 3:56 pm | Permalink

          Did not say there was a better system.

        • BJ
          Posted November 27, 2018 at 4:14 pm | Permalink

          As Churchill said, “No one pretends that our adversarial judicial model is perfect or all-wise. Indeed, it has been said that it is the worst form of justice system except all those other forms that have been tried from time to time.”

          • Ken Kukec
            Posted November 27, 2018 at 4:37 pm | Permalink

            We could always give “trial by ordeal” or compurgation another shot. 🙂

            • BJ
              Posted November 27, 2018 at 5:46 pm | Permalink

              If we want the most fun system, we should be doing trial by combat.

            • Posted November 28, 2018 at 3:51 am | Permalink

              I dont often discover a new word–and like to thnak you for the opportunity. “Compurgation” aka “Believing what the guy with friends has to say” aka “The process whereby Supreme Court Justices get confirmed”. Thanks for that.

        • Randall Schenck
          Posted November 27, 2018 at 4:39 pm | Permalink

          I understand the due process and all that. I just think some pretty good lawyers would see the flaws in handling criminal cases in the school environment.

          So I have to ask Ken. If you had a daughter in college and she is involved in a sexual assault, would you want to school handling it?

          • Ken Kukec
            Posted November 27, 2018 at 6:27 pm | Permalink

            I would want her to go to the police, and to have it prosecuted by the criminal justice system. But I’d also want the perpetrator restrained from being anywhere near her on campus, while the case was pending (and to have him expelled from school, were he found guilty).

            That’s my answer both as a lawyer and a father (though I don’t have a daughter — one of life’s disappointments; I think I’d understand women better if I did — that I’d have learned as much from a daughter as I did from my mother and sister and aunts and grandmothers, and be a better man for it).

            • Posted November 27, 2018 at 6:37 pm | Permalink

              Why should a person be expelled from school after they’ve paid their debt to society? I can see that a student may lose their place at college if they have to go to jail for 5 years but I think the rules should be the same regardless of the reason for the student’s absence. I would also not want a convicted perpetrator to go anywhere near the victim but society has a mechanism for that. Perhaps the college can help with that by making sure that the offender can’t attend the same class as the victim but I can’t see much reason for the college to apply additional punishment. It smacks of safe zones.

              For the last few decades it seems that society has decided that the punishment meted out by the criminal justice system is somehow not enough punishment. They seek to punish the offender for the rest of their lives. This trend seems at odds with the idea that we should be helping offenders get back to leading normal lives or, putting it another way, treating criminal behavior as a sort of mental or social illness.

              • Ken Kukec
                Posted November 27, 2018 at 7:46 pm | Permalink

                If a student rapes a fellow student on university property, you don’t think the university has the authority to mete out any punishment? What if the perpetrator is prosecuted and merely put on probation, or given 30 days in the county jail?

                What if a student harasses a fellow student (in a manner that does not rise to the level of a criminal offense) on university property? Is the university similarly powerless to act?

                There are some types of cases, and some forms of sanctions, that the criminal justice system is not equipped to handle, but a university is (just as there are some types of cases and punishment that the criminal justice system is equipped to handle that a university is not). I don’t think these are mutually non-overlapping magisteria.

                Are you suggesting that a university be completely disempowered from looking out for its student’s best interests in any case that also implicates the criminal justice system?

  8. Ken Kukec
    Posted November 27, 2018 at 12:46 pm | Permalink

    … there’s no good reason to use different standards when judging, say, murder or assault on the one hand (crimes often difficult to “prove”) versus sexual assault on the other.

    The different approach to sex crimes arises, I think, as a throwback to our puritanical past, when a woman who was the victim of such crimes was seen somehow as “tainted.”

    Sex offenses differ from other crimes in that they involve acts that, under other circumstances, are imbued with a great sense of intimacy. And I understand the desire to offer special protections to the victims — such as, for example, the widespread practice of prohibiting the public disclosure of their names — but I fear that these practices merely perpetuate the circumstances that gave rise to the baseless, anachronistic stigma in the first place.

    • Randall Schenck
      Posted November 27, 2018 at 1:01 pm | Permalink

      On the other hand, with many sexual assault/rape cases, when it was the defense attorney’s turn at the accuser on the stand, the history of this accuser would be laid out for the jury to include every date, every action taken since puberty. The type of dress showed she was asking for it and on and on. How far the lawyer was allowed to go with this depended on the judge.

      • Ken Kukec
        Posted November 27, 2018 at 1:28 pm | Permalink

        True enough, but that’s going back quite a ways (to before my time in practice). “Rape shield laws” in place in most jurisdictions prohibit the introduction of any evidence regarding a victim’s prior consensual sexual activity with anyone other than the accused (except in very limited circumstances, such as to prove that a third party may have been the source of an injury or bodily fluid that’s claimed to have resulted from the charged crime).

    • andrewilliamson
      Posted November 27, 2018 at 3:48 pm | Permalink

      I’d argue it isn’t intimacy that’s the issue, but it’s just basic biological cost. And it goes back much farther back than our puritanical past.

      Sexual assault (and even aggressive harassment) represents a major biological threat to a woman: the potential to saddle her with a child for years, with no mate to support her during that period.

      It doesn’t matter that the physical consequences of rape may be less severe than a guy getting punched in the face. We generally agree that rape is the greater crime, because to our ancestors, it represented a far bigger threat.

      • Ken Kukec
        Posted November 27, 2018 at 3:58 pm | Permalink

        That’s might well be a valid reason for making sexual assault a more severe crime (compared to other other types of assault or battery offenses). It’s no reason to continue to attach a puritanical stigma or shame or secrecy requirement to it.

        • Posted November 28, 2018 at 4:43 pm | Permalink

          Not all elements of culture are rational. I often discuss with my students the stigma attached to lice or flea infestation – that those affected are regarded by many as “dirty”, though good hygene is never enough to prevent or cure infestation with these parasites.

      • infiniteimprobabilit
        Posted November 27, 2018 at 4:49 pm | Permalink

        “We generally agree that rape is the greater crime, because to our ancestors, it represented a far bigger threat.”

        The only reason for that was the patriarchal system of inheritance – G*d forbid that the lord and master’s magic genes should not have been passed on to his (alleged) offspring.

        And of course the religiously-inspired phobia over abortion. Unwanted pregnancy is easily cured if caught early enough. I agree that the ‘potential to saddle her with a child for years’ is a massively destructive threat, whether it arose through rape or just by accident.

        I’m not sure how ‘aggressive harassment’ could get anyone pregnant though. Or why it should be any worse than an equivalent level of harassment directed at a male.

        cr

        • infiniteimprobabilit
          Posted November 27, 2018 at 4:51 pm | Permalink

          And of course, that attitude has often led in the past to phony rape charges, because no “nice” girl would ever willingly have sex before marriage etc etc…

          cr

    • Posted November 28, 2018 at 11:48 am | Permalink

      I have (timeless present) a friend who is a survivor of a particularly brutal sexual assault who says more or less exactly that. That is, treating sexual assault as something distinct from an assault of the same life-changingness just makes this *worse*.

      That said, she doesn’t talk about it with just anyone because people don’t understand her point with the above. She repeatedly (she said) would get complaints that she is trying to exonerate her assailant. On the contrary; she was actually thinking severe punishment, but not because it involved such and such parts but rather because it came that close to killing her.

  9. Ken Kukec
    Posted November 27, 2018 at 1:14 pm | Permalink

    I don’t know that I’ve ever heard the “75%” figure put on the standard for “clear and convincing” evidence before — but, then, I don’t have a lot of familiarity with it, since it’s much less common than the “beyond a reasonable doubt” standard used in criminal cases, or the “preponderance” standard applicable to to most civil claims (which is frequently quantified as “greater than 50%”).

    The standard jury instructions used in federal civil cases provide that clear and convincing evidence “means the evidence must persuade you that the claim or defense is highly probable or reasonably certain.” Were I called upon to argue that standard, I think I’d analogize it to what one would need before undergoing a serious medical procedure or before making a major financial investment. (In criminal cases, where the standard instruction on proof beyond a reasonable doubt defines it as “proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs,” I’ve analogized it to the certainty you’d require before following a medical diagnosis to have a limb removed.)

    • darrelle
      Posted November 27, 2018 at 1:29 pm | Permalink

      It is so hard to pseudo-quantify these various standards, let alone explain what they mean in a way that is useful for everyone. Taking your parenthetical for example, I can’t imagine myself ever being so convinced about anything that I would act without hesitation, especially in important matters of my own affairs. When I do act without hesitation it usually doesn’t involve conscious deliberation at all.

      This was much on my mind during my recent experience as a juror on a 1st degree murder case. How sure is sure enough when the stakes are so high? And yet other people seem so sure of their decisions in similarly high stakes situations. That’s scary to me.

      • Posted November 27, 2018 at 2:45 pm | Permalink

        That is a poor explanation of reasonable doubt. The words are perfectly clear and do not really need explaining. The purpose of the jury is to use the knowledge and experience of the jury to decide whether to convict, that includes their understanding of common English words and phrasing. That is the whole point.

        • darrelle
          Posted November 27, 2018 at 3:48 pm | Permalink

          Exactly what is a poor explanation? Why don’t you explain it Old Guy? I don’t think your assuredness is warranted. If you can’t see or admit to the subjectivity and or context dependency of the phrase “reasonable doubt” I’m not sure it would be worth having a conversation about this. I can assure you that lawyers and judges understand this.

          Of course perhaps you simply wanted to express your disdain for people that are not as assured as your are when tasked with applying the reasonable doubt standard as accurately and fairly as possible in very high stakes circumstances.

          • Posted November 27, 2018 at 3:58 pm | Permalink

            I explained it in my comment.
            In your comment you said you did not like the explanation. Neither do I.

            • Ken Kukec
              Posted November 27, 2018 at 4:17 pm | Permalink

              I’m sure the courts are all ears, OG, if you have a better way to explain it. The term is hardly self-explanatory; requests for further explication of the meaning of “reasonable doubt” are among the most frequent messages jurors send to judges during deliberations.

              Many jurors struggle with it, just as Darrelle did. Indeed, I consider that struggle to be one sign of a juror’s conscientiousness. Like Darrelle, I’m leery of those who seem cocksure of what the term means and when it’s been satisfied.

              • infiniteimprobabilit
                Posted November 27, 2018 at 4:55 pm | Permalink

                Having served on several juries, (no murders but one rape), I shudder when a juror seems to be instantly absolutely certain of their opinion. I suspect it means they made up their mind before any evidence was even introduced.

                cr

              • Posted November 27, 2018 at 11:58 pm | Permalink

                Google James Whitman, the origins of reasonable doubt
                Yale press 2005

                I never did any criminal law so I have never thought much about reasonable doubt. He treats it very well.
                Based on his analyses Zi would say the closest thing in modern terms to the origin of the term would be to instruct jurors in terms of rendering the verdict with a clear conscience. That is my conclusion. He did not say that.
                I scaned and did not read it all but it is s good discussion of the issue.

          • Posted November 28, 2018 at 9:17 am | Permalink

            If you are interested in knowing more about the reasonable doubt rule there us a good law review article I recommend you read.

            Google:
            James Whitman The Origins of Reasonable Doubt.
            2005
            Yale University Press

  10. Posted November 27, 2018 at 2:23 pm | Permalink

    I don’t see a problem of having the courts handle the charges and also giving the colleges the rights to have their own invistigation and determination. And then there us also the option of the alleged victim to sue in a civil court for damages. These procedures are not and should not be mutually exclusive. And it is fine that there are different standards for convictions in each procedure.

    Often after a bit guilty verdict in a criminal trial an slkwgwd vuctim will sue fur damages in civil court and win. The standard of proof is lower.

    The same should be true for cilleges. They should be allowed their own procedure for deciding what to do with the issue regardless and apart from what happens in either criminal or civil court.

    There should be no requirement for the alleged victim to file in criminal or civil court for the cilldge to initiate its own process using its own standard to determine the outcome.

    The bill of tights does not apply to the privilege of attending college.

  11. Torbjörn Larsson
    Posted November 27, 2018 at 4:05 pm | Permalink

    I guess I don’t see the point, as I am not used to the US litigation system.

    Uncovered harassment at a work place seems to most often systematic. Sweden has a recent example of antisemitism at Karolinska Institute that was ongoing for years, and supported by silence (and even suspected antisemitism) from the union. How would the accusations accumulate without having some leeway and not immediately demand evidence on an individual case basis.

    And if they accumulate, it seems it is unlikely to be a conspiracy based on something like dislike. [I say “seems” since I don’t have statistics at hand.]

    Was it not outright stated that evidence of systematic – i.e. earlier or parallel accusations – was excluded from the process? Or even if not, it would be harder if looking at it as an individual evidence case. So I guess I feel more comfortable with the old system, which likely rarely judged guilty on innocents while better supported harassed to come forward despite push back and/or evidence problems.

    • Torbjörn Larsson
      Posted November 27, 2018 at 4:14 pm | Permalink

      I should also add on “seems” that – with or without statistic – there is a lot of bias problems here. So it would not be easy to find out which ways is the best. But the idea of due is a practical rule, and I think this is one of the cases – such as when looking at mass murder or genocide – where practice can be different for good balance between the interests of all.

    • Torbjörn Larsson
      Posted November 27, 2018 at 4:15 pm | Permalink

      “idea of due” – idea of due process.


Post a Comment

Required fields are marked *
*
*

%d bloggers like this: