Pomona Changes Evidentiary Standards for Sexual Misconduct

Pomona College has officially lowered the standard of evidence required to find a student guilty of sexual misconduct in campus judicial proceedings, in response to a federal regulation that would make Pomona’s old practice a violation of civil rights law.

As of Monday, any student judged more likely than not to have committed a sexual policy violation will be found guilty, in accordance with the “preponderance of the evidence” standard. Before this change, all cases brought before the Pomona Judiciary Council or the Student Affairs Committee (SAC), including sexual misconduct proceedings, were covered by the “clear and convincing” standard, which requires a higher burden of proof in order to obtain guilty verdicts.

SAC, which is composed of half students and half administrators and faculty, recently created a subcommittee to examine other policy changes that might be called for in light of new federal requirements. The subcommittee will include members of SAC as well as representatives from the Judiciary Council and the student group Advocates for Survivors of Sexual Assault.

Pomona’s change in evidentiary standards is a response to the April 4 “Dear Colleague” letter, a policy statement sent to all American colleges and universities by the U.S. Department of Education’s Office for Civil Rights. The letter outlines how schools are obligated to handle sexual harassment and violence under Title IX of the Education Amendments of 1972, a law designed to counteract gender discrimination in education.

The letter states that every school “must use a preponderance of the evidence standard” in sexual misconduct cases, since the clear and convincing standard is “inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX.”

Pomona Vice President and Dean of Students Miriam Feldblum said that the federal regulation left Pomona with no choice but to change its standard of evidence for sexual misconduct cases.

“It has regulatory authority, so that’s what’s important to us,” Feldblum said. She added that the government’s letter was “very unusual,” since most similar letters do not make such broad policy mandates.

Unusual as it may be, the “Dear Colleague” letter is a fully enforceable act of government, according to Professor of Politics David Menefee-Libey.

“These [regulations] have the force of law,” Menefee-Libey said. “It is federal law, just as much as any act of Congress.”

Leslie Appleton PO ’12, Vice President for Finance of the Associated Students of Pomona College (ASPC) and a member of SAC, said the government’s unusual letter forced SAC to use an equally unusual procedure for changing the Student Handbook.

“Typically, student input can affect the that way we change our policy… but with this we can’t because [the change is being made] in order to comply with the federal law,” Appleton said.

SAC, which officially approved the change in evidentiary standards on Sept. 20, is hosting a two-week comment period for students to discuss the alteration. Student Handbook changes are usually preceded by longer comment periods.

Zach Schudson PO ’13, who will represent the Advocates for Survivors of Sexual Assault on the new subcommittee, said he was glad to see the policy change adopted.

“I think it’s great that the college is taking steps to look at the way that this traditional legal language can be used to cast out survivors’ stories and make it really, really hard to prove that someone was sexually assaulting other people,” Schudson said.

He added that sexual assault cases may need to be handled with special rules to counteract potentially harmful effects of additional questioning of the survivor.

“It’s been very traditional in cases of sexual assault to question survivors about what they were wearing, what they were doing whenever it happened, if they had had sexual relations with the person who assaulted them before—things like that that you don’t ask someone who’s just been mugged or who has had their house broken into,” he said.

Associate Dean of Students for Student Development and Leadership Daren Mooko said that some people have raised concerns about exempting sexual misconduct cases from the usual rules of due process.

“I know that the preponderance of evidence can seem like a very troubling standard,” Mooko said. He insisted, however, that students accused of sexual misconduct will still be presumed innocent and treated fairly.

“It’s not like a tie-goes-to-the-runner scenario,” he said. “There’s much more that goes into it.”

Mooko said that the SAC subcommittee will discuss whether Pomona can reasonably continue to have two evidentiary standards for different types of cases.

“One of the points that has been raised is, ‘Well, should the entire code be shifted over to preponderance of evidence, so we make everything uniform?’” he said. “Is that the way to go? I have no idea.”

Schudson said that he hoped the subcommittee would also examine Pomona’s other sexual misconduct policies and look for ways to improve them.

“I still think there are important changes to be made to the language of Pomona’s sexual assault and misconduct policy,” he said. “There’s always work to be done.”

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