Good News—In Face of Protests, Leahy Scraps Bill Provision Which Lowers Evidence Standards

November 14th, 2011 by Robert Franklin, Esq.
False allegations of abuse have proved to be perhaps the most important single factor in keeping children and fathers apart.  As I’ve reported before, an important study by Douglas Allen and Margaret Brinig revealed that Oregon’s attempt to keep fathers in the lives of their children post-divorce was thwarted by its domestic abuse provisions.

The Allen/Brinig study showed that, far from keeping both parents actively involved in raising their children following a divorce or separation, the new statute produced more orders for sole custody than before its passage, not fewer. 
That anomalous result was due overwhelmingly to one thing – the use of claims of domestic abuse to keep a parent out of a child’s life.  In the five years following the law’s passage, 82% of abuse claims were made by women.

But domestic violence allegations can be used in a variety of circumstances, not just in child custody cases.  For example, many colleges and universities have unwittingly allowed female students and faculty to victimize innocent men via spurious claims of violence or unwanted sexual behavior.

The Duke Lacrosse team case is the most widely known, but there are many others as well.  For example, earlier this year, a female student a the University of North Dakota leveled charges of sexual abuse at a male student.  He was summarily tossed out of school and investigated by the police.  But at the same time that university officials found him guilty as charged, police discovered that his accuser was lying.  She went on the lam and is reported to be in California, while the young man has been reinstated as a student in good standing.

The point is that the university’s procedure for investigating claims of sexual abuse was so lax and so lacking in even minimal due process protections that they gave credence to a liar and smeared an innocent man.

Although the William McCormick III case is still ongoing, it has a distinctly similar odor.  There, Brown University student William McCormick was charged by a female student with attempted rape.  Without so much as a hearing, he was forced by university administrators to drop out of school and never return.  McCormick’s lawsuit against Brown has so far revealed shocking behavior on the part of the school’s administration.  As but one example, the school’s president met numerous times with the accuser’s father, a wealthy alumnus and donor, but never even spoke to McCormick, despite his repeated requests that she do so.

Now, all of that and more happened even though the schools had policies supposedly requiring substantial proof of guilt on the part of the accused.  Most schools use the standard of “clear and convincing” evidence of guilt before an accused could be disciplined.  That standard is midway between the highest standard used in criminal cases, “beyond reasonable doubt,” and the lowest used in civil cases, “preponderance of evidence.”  So even with a fairly stringent standard of proof, young men, charged with sexual impropriety by women can find themselves railroaded off campus with a permanent stain on their academic records.

It was against that backdrop that, astonishingly, the U.S. Department of Education (DED) actually lowered the standard of proof in cases involving charges of sexual assault required of all colleges and universities receiving any form of federal funding.  By fiat, issued apparently by a single bureaucrat in the agency, essentially all institutions of higher learning will be required to use the “preponderance of evidence” standard to judge those allegations.  That means that, if university panels investigating claims of assault find that 50.01% of the evidence suggests guilt, then the accused is to be found guilty.  Students will be tossed off campus, faculty will lose their jobs and possibly their careers.

The new standard, imposed without input from university administrators, faculty or students, has been met with a firestorm of protest.  The American Association of University Professors, the National Association of Scholars and the Foundation for Individual Rights in Education all came out against the measure.  Nationwide, some 30 editorials did as well.

So it was with a mixture of rage and incredulity that those already combating the DED measure learned that Senator Patrick Leahy (D-VT) had proposed to make the lower standard the law of the land.  Remember, as it stands, all colleges and universities must now use the lower standard or face the loss of federal funding.  But what’s been done by bureaucratic fiat can be undone in the same way.

But Leahy’s proposed bill to reauthorize the Violence Against Women Act would have made the lower standard a requirement of federal law, enacted by the elected representatives of the American people.  As such, had it passed, it would have taken another act of Congress to undo.

Fortunately, the opposition to the measure has prevailed.  Stop Abusive and Violent Environments (SAVE) has reported that Leahy has bowed to the pressure and removed the requirement of the preponderance of evidence standard from his proposed bill.

That’s a step in the right direction, but more needs to be done.  Specifically, the rule requiring the lower standard, promulgated by unelected bureaucrats must be rescinded.  After all, it’s not a law, but every college and university effectively must comply with it.

Simply put, the new standard is so unpopular and so clearly violative of due process rights that our elected representatives on the Senate Judiciary Committee refused to even vote on it much less vote for it.  Nothing that is that unpopular and at odds with the Constitution should be allowed to stand, even if Congress had voted on it and the President had signed it.  But when it’s all been done by the will of a few unelected and largely unknown employees of a federal agency, neither law nor morality nor common sense allows it to remain in effect.

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