On Preponderance of Evidence

Because of the discussion of sexual assault in this piece, I would like to warn readers that some of what is described here has the potential to elicit strong emotional reactions. If you are experiencing a strong reaction and would like someone to talk to, you can contact the Advocates at advocates@pomona.edu or via their anonymous hotline at 909-607-1778.

TSL recently published an opinion piece entitled “Policy Change Deserves Scrutiny,” in which the Editorial Board claims that evidentiary barriers in the judicial process were “put in for a reason” and to lower those barriers is to “discount the value of a legal right that lies at the heart of our democratic process.” When I first read the piece, I was struck by the invocation of liberalism to justify maintaining the status quo. I use the term “liberalism” to denote a philosophy based around ideas of equality, freedom of choice, and personal responsibility. The way this philosophy actually plays out in the U.S. criminal justice system exposes the cracks in its rock-solid façade.

Our criminal justice system has historically been used to further the marginalization of already-marginalized groups of people. Because this system exists within American society, it is inextricably linked to the biases, both conscious and unconscious, of members of that society. One such bias in the U.S. is against survivors of sexual assault. The veracity of survivors’ accounts of their experiences is routinely called into question if they choose to pursue justice for themselves. Pervasive myths about women falsely reporting rape to take revenge against ex-boyfriends and a dominant societal narrative of what rape is (i.e., a strange man assaults a provocatively-dressed woman and forcibly penetrates her vaginally) are used to discredit survivors’ stories and to intimidate them into silence.

In TSL’s original article, the authors claim to recognize that “questioning survivors during sexual misconduct investigations can be extremely painful,” but they still conclude that it “does not warrant a complete revision of the legal rights upon which our school and country are founded.” I would question the assumption that accommodating the unique nature of sexual-assault cases on college campuses is a “complete revision” of our legal rights. Sexual assault does not always result in the presence of forensic evidence, and as such it is a uniquely difficult case for prosecutors to tackle. This lack of a specific type of evidence, when combined with the dominant societal narrative of rape, makes it so that the presumption of “innocent until proven guilty” that protects alleged perpetrators mutates into a presumption of “lying until proven truthful” for survivors.

The “preponderance of evidence” standard helps to rectify the “lying until proven truthful” situation for survivors by taking into account the unique nature of how evidence collection and the process of building legal cases happens when prosecuting sexual assault cases. It is for this reason that the change in language from “clear and convincing evidence” to “a preponderance of evidence” must be applied to sexual assault, while not necessarily being applied to other crimes. To address specifically the authors’ concern over consistency in the code, there is nothing inconsistent about accommodating the unique circumstances of the only crime in which the victim is on trial. This sort of accommodation of a historically-marginalized group in the U.S. has ample judicial precedent (e.g. affirmative action).

Some are concerned that the “preponderance of evidence” standard will lead to increased false reporting and disciplinary action against innocent students. False reporting is a rare phenomenon—one study by David Lisak, a psychologist at Northeastern University, put the percentage of false allegations over a ten-year period at 5.9 percent, or eight total reports. When combined with the statistic from RAINN (Rape, Abuse, and Incest National Network) that 60 percent of sexual assaults are never reported, the percentage of total cases dealing with sexual assault in which the allegations are false is around 2.4 percent. It is important to remember that this does not mean that the minority of alleged assailants who are innocent will necessarily be punished—the preponderance of evidence standard still requires that it be more likely than not that an assault occurred, and it still calls for the presentation of evidence.

This new standard was not instituted to vilify innocent people. In compliance with federal regulations, Pomona is just trying to make it so that survivors are able to use the institution to protect themselves and to achieve justice without fear of being shamed, humiliated, or accused of lying. I do not believe celebrating this new policy is tantamount to “[discounting] the value of a legal right that lies at the heart of our democratic process.” If anything, this represents a triumph of democracy—an honest look at lived experiences in the U.S. and the everyday lives of survivors—and an appropriately thoughtful response.

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