Don’t lower burden of proof

A recent directive from the Department of Education mandates that all universities that receive federal funding must lower their standard of proof significantly in deciding cases of sexual assault. As The Chronicle’s independent editorial board correctly reported last week, a guilty verdict for sexual assault at Duke will now be based on “a preponderance of evidence,” rather than the current standard at most universities, which is “clear and convincing” evidence of guilt. Let us leave that decision aside—it is well reasoned and, more importantly, we’re legally bound to it.

What is more troubling (and has gone unreported) is that Duke is now considering extending that lowered standard of proof to all cases. Yes, to maintain a uniform judicial code, Duke may enable the Undergraduate Conduct Board to convict students in all situations based on a certainty of guilt somewhere between 51 to 75 percent. This is commonly summarized as the threshold where guilt is “more likely than not.” I can think of no greater injustice to the student disciplinary process and the rights of Duke students.

If it is extended to all cases, the “preponderance of evidence” rule will truncate due process and reduce the depth to which the Undergraduate Conduct Board must investigate cases. Quite simply, the student disciplinary process is too important to convict based on a 60 percent confidence level. As it stands, “clear and convincing” is already a lower standard than what is used in the court system, and students are not afforded a number of basic legal protections. A uniform reduction in the burden of proof is a reduction in the protections for our students.

The Department of Education’s directive was based on concerns over circumstances that are unique to sexual assault. It was certainly not intended to set the precedent for a nationwide standardizing of university judicial codes. And yet the rationale Duke administrators have given for the potential extension of this standard is just that—that we should maintain consistent judicial policies. But in practice, Duke already has a different judicial process for cases of sexual assault. Conduct Board members hearing those cases receive specific sexual assault training, and physical partitions are placed between complainants and the accused. Furthermore, the finding of responsibility for sexual assault must be unanimous if suspension or expulsion is being considered, while for most other cases all that is needed is a majority. There is no compelling reason to establish a standardized burden of proof when we already have an un-standardized judicial process.

A second and less discussed component of the directive gives complainants the right to appeal the UCB’s decision, just as the accused may do. Extending this privilege to all cases would be almost as destructive as lowering the burden of proof, except that it seems much less likely to happen at Duke. Thankfully, nobody involved with student disciplinary policies seems intent on giving all complainants the right to appeal a ruling on the accused.

In 2007, then-Duke Student Government President Elliot Wolf, Trinity ’08, wrote a series of columns for The Chronicle on disturbing trends in Duke’s judicial code. Wolf believed that, in trying to maintain a disciplinary process that both adjudicates and educates, Duke was sacrificing its students’ basic rights. Under the direction of Stephen Bryan, director of the Office of Student Conduct, the concept of finding “teachable moments” had become an excuse for shoddy protections in the student conduct system. Four years later, the situation has not improved, and the Office of Student Conduct continues to build a framework that leans too heavily toward the presumption of guilt as it tries to teach lessons about owning up to one’s actions.

When the student conduct administrative advisory group meets May 17 to discuss whether Duke will determine guilt on “a preponderance of evidence,” I hope its members will base their decision on the policy’s impact on Duke students, and not on a perceived pressure to standardize our judicial code. (I’ll be there to make sure.) Sexual assault is a unique offense with its own set of challenges, and our judicial policies should reflect that distinction.

Mike Lefevre is a Trinity senior and is the President of Duke Student Government.