A Preponderance of Evidence

Republished from Emma Johnson's Medium post, with her permission 

John Villasenor’s opinion piece in the New York Times discusses whether or not college sexual assault and rape cases need to be held to a higher standard of evidence. “But consider the fate of an innocent defendant who is found guilty in a university Title IX proceeding, expelled from school and then publicly disparaged on social media as a perpetrator of sexual violence,” he says, “What of the investment that was put into pursuing a degree that will now be wrongly withheld? And what will happen when this person attempts to re-enroll at another school, get a job, rent an apartment or run for political office?”

The answer is nothing. I can assure you, nothing will happen to these men when they attempt to re-enroll, find a job, rent an apartment, run for office. Their lives will continue unscathed. Especially if they were falsely accused.

The false accusal rates in rape and sexual assault cases are less than 3%. That’s the average rate of a false accusation of any crime. Meanwhile, UNC Chapel Hill has only ever expelled on student for sexual assault/rape in 1991. But in 2013 UNC almost expelled a survivor for violating the honor code by bringing her case against her attacker.

But if that’s not enough for you, look at the men who rape and assault women and still continue their lives unscathed.

Look at Jameis Winston, who raped not one, but two women in college, won a Heisman Trophy and currently plays professionally with no repercussions.

Look at Ben Roethlisberger, who sexually assaulted one woman in 2009, another in 2010 and still played in the Super Bowl that year.

Look at Kobe Bryant, who raped a woman over 10 years ago. He’s still considered a legend and no one remembers the woman he raped in a hotel room in 2003.

Look at how our President-elect speaks about women, about raping and sexually assaulting them. About grabbing them by the pussy.

These are the men who faced accusations you are so afraid of. Who committed these crimes. And then faced no ramifications. They were not found guilty, instead the majority of them settled out of court. They’ve had no problem in their professional lives, assumably no problem getting a house or elected into the highest office the United States has to offer.

So your argument, that a preponderance of evidence is dangerous in a university setting, because it means men might be falsely accused is invalid. Not because statistically there might be a greater chance of a false conviction. But because we live in a victim-blaming rape culture. Survivors have to prove what happened to them. They have to prove they weren’t “asking for it” because of how they were dressed or what they were doing or who they were spending their time with. Men have been publicly accused of rape and sexual assault, faced trials of public opinion and courts more in depth than at a university level and have been ‘fine’. They’ve been more than fine. They’ve thrived.

Additionally, as Nancy Chi Cantalupo states in her counter-piece, “the preponderance standard itself is designed to be equal — it expects the victim and the accused to carry virtually equal evidentiary burdens (with the victim’s burden just slightly heavier than the accused’s)” while “criminal law-based standards of proof make protecting the equal rights of all their students harder for schools because they require victims to carry a much heavier evidentiary burden than accused students.” Survivors already have to fight unbelievably hard for their cases at the university level, and I cannot believe you stand for a system that would only make that fight harder.

Maybe if we lived in a perfect world a preponderance of evidence would problematic. But we don’t. And the best we can do is believe the women and men who have been raped and assaulted.