In a criminal case, a criminal defendant needs to be found guilty beyond a reasonable doubt. It's the highest burden of proof that's available in a court proceeding. In a college sexual misconduct case, most schools are going to be at their discretion to choose what burden of proof they believe to be appropriate, preponderance of the evidence which can be equated to 50% and a feather. It may sound like a lot, it's the lowest burden of proof that's available in a court proceeding, and it can very much be against an accused party's interest.
Cases that are going to be adjudicated under Title IX, the new Title IX Final Rule that went into effect on August 14, 2020. Schools will have the option to use the higher burden of proof, clear and convincing evidence. To explain burden of proof, the lowest would be preponderance of the evidence. Schools will have the option to use the clear and convincing standard, which is above the preponderance of the evidence. Schools will not be using the beyond a reasonable doubt as is the case in criminal court.
The unfortunate reality is, people are found guilty in criminal court day in and day out. It's why it's that much more important to make sure that you're making the best-informed decisions and mounting the strongest possible defense in a college sexual misconduct case because the burden of proof is that much lower. Although schools have the right to use the clear and convincing standard at most schools, they're going to either wind up keeping or maintaining the preponderance of the evidence standard, just the reality of what's involved. An experienced attorney advisor can help best navigate the process and can protect your interest.
