November 16th, 2011 by Glenn Sacks
False allegations of abuse are common in family court, and have been used to separate many fathers (and some mothers) from their children. The reasons for this problem are many, but one of the biggest is the low evidence standard for upholding abuse claims.
The common evidence standard for domestic violence restraining orders is “preponderance of the evidence,” often conceptualized as a mere 51/49% likelihood of guilt. By contrast, when someone seeks a civil restraining order, the more stringent and appropriate “clear and convincing” evidence standard is used.
In practice, this means that when neighbors Bob and Jim have a dispute over Bob’s dog eating Jim’s flowers, and Jim allegedly threatens to throw rocks at Bob’s dog, the courts demand that Bob provide solid evidence to support his claims of Jim’s threats. By stark contrast, if Bob’s wife decides to divorce him and seeks to throw him out of his house on a restraining order and cut him off from his kids, she has a much lower burden of proof on her claims.
Fathers and Families wants abused women (and men) to be afforded the protection they need. However, we have relentlessly publicized and fought the common problem of false allegations being used as child custody and financial maneuvers in divorce. And one of the key components in this fight is to replace the “preponderance” standard with the “clear and convincing” standard.
VAWA Re-Authorization Sought to Lower Evidence Standards
Recently there have been moves by the Obama administration to lower the evidence standard that universities and colleges use to adjudicate accusations of violence or abuse. According to Hans Bader, Esq.:
Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases…this due process safeguard has come under attack, most prominently [by]…the head of the U.S. Department of Education’s Office for Civil Rights, Russlyn Ali, who has demanded that colleges dilute the presumption of innocence in sexual harassment and assault cases by instead using a “preponderance of the evidence” standard…
Now, the Senate draft bill to reauthorize the Violence Against Women Act [by Senator Patrick Leahy (D-VT)] has inexplicably sought to expand the assault on due process. The draft VAWA bill would give OCR the power to set the “standard of proof” not only in harassment and rape cases, but also in other kinds of cases like “domestic violence,” “stalking,” and inappropriate behavior in dating relationships.
A Firestorm of Protest
Colleges and universities have often victimized innocent male students by validating spurious abuse or assault charges, as Fathers and Families Board Member Robert Franklin, Esq. details here. Franklin explains:
The new standard 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.
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, and, had it passed, it would have taken another act of Congress to undo.
The good news is that Leahy has now scrapped these provisions in his VAWA draft in the face of these protests. We thank and congratulate all who were involved in opposing this harmful provision. To learn more, see Franklin’s post here and Bader’s article here.