This week, we learned that Harvard no longer abides by the “innocent until proven guilty” standard when it comes to allegations of sexual assault because the constitutionally mandated burdens of proof might keep sexual assault survivors from coming forward with claims.
Now, a former law student from UVA is suing that school and the federal government because its sexual assault investigator was required to use the “weakest standard of proof” in determining whether the student had, in effect, “sexually assaulted” a woman he slept with because she claimed to be intoxicated at the time.
The student maintains that his female partner did not appear intoxicated before or after the sexual encounter, as she claimed to investigators. He also said she had given him full consent. Because neither side could provide physical evidence, John Doe’s partner’s testimony was enough to convict.
The school used a “preponderance of the evidence” standard, rather than a “clear and convincing evidence” standard. UVA switched the standards after a 2011 “Dear Colleague” letter from the Department of Education, which mandated the change. That change, John Doe says, cost him dearly.
But for this lower standard, John Doe claims, he would not have been convicted. His degree was suspended and he lost a prestigious job at a DC law firm.
The “Dear Colleague” letter referenced by the lawsuit claims that Title IX requires schools to take a more active approach in addressing allegations of sexual misconduct. It suggested—with all the weight of the Obama Administration behind it—that schools use lower evidence standards when investigating claims.
Unfortunately, this means that students who face allegations, like UVA’s John Doe, have fewer opportunities to clear their name, and face harsh consequences without any guarantee of due process.
John Doe, and his litigation partner, the Foundation for Individual Rights in Education, say they aren’t looking to reverse UVA’s decision, just ensure that the mandate forcing schools to infringe on the rights of accused students be tossed out. “Campus sexual assault is a serious problem,” a spokesman for FIRE maintained, but so are constitutional rights.
