The Burden of Proof in College Sexual Misconduct Proceedings

What Is a Burden of Proof

The burden of proof is a law concept that helps a court or other tribunal determine which side should win in an adversarial dispute involving conflicting evidence. Adversarial proceedings, like a dispute between an accuser and accused in a college sexual misconduct proceeding, very often require weighing contradictory evidence. One side says one thing, while the other side says pretty much the opposite. We've all heard of he-said-she-said conflicts. Witnesses have different recollections, some true and accurate, others not. If each side seems to have some truth in its favor, as is often the case, how is the decision-maker to balance those sides? The burden of proof tells us which side must meet what proof burden.

Preponderance. Law offers three different burdens of proof for three different kinds of proceedings. The common burden of proof for civil disputes, like an injury or contract-breach claim, is that the complaining side must show a preponderance of the evidence. The preponderance burden means the complainant must have at least a little more evidence, even if only a feather's weight more, than the defending side. Some characterize a preponderance as 51%, not 50% or 49%, although numbers make the concept more precise than testimonial and documentary evidence permits. You can't generally measure evidence on a scale or with arithmetic. But the preponderance burden still makes good sense.

Clear and Convincing. Law also offers a higher burden of proof known as clear and convincing evidence. The clear-and-convincing burden generally applies to special civil claims like fraud that are easy for the complainant to make up but may be hard for the defending side to disprove. In those instances, the law makes the complainant do more than show a preponderance of the evidence. The complainant must instead show clear evidence that convinces the decision-maker. While it can be hard to say what is clear and what is convincing, this burden of proof surely raises the bar over which the complainant must leap to prove the matter.

Beyond a Reasonable Doubt. Law offers a third burden of proof known as beyond a reasonable doubt for most criminal cases. As a constitutional matter, the prosecution must prove most crimes beyond a reasonable doubt. That burden is surely a higher burden than clear and convincing evidence and a much higher burden than a preponderance of the evidence. The reason for the higher burden has to do with the greater interest that a criminal defendant has in the defendant's life or freedom. High stakes should mean a higher burden.

What Burden of Proof Schools Are Choosing

Colleges and universities currently have the option to choose their proof burden when charging a student with college sexual misconduct, whether that misconduct falls within or outside of Title IX definitions. Prior Title IX regulations required schools to apply the lowest burden of proof, meaning that an accuser would prevail with only a preponderance of the evidence. Current Title IX regulations permit the school to choose either the lowest preponderance burden or the middle clear and convincing evidence burden. Given the seriousness of sexual misconduct, indeed that certain forms of it are crimes, arguments could even be made for applying the highest beyond a reasonable doubt proof burden.

You'd have to check your school's sexual-misconduct policy to be sure, but by far, most colleges and universities are applying the lowest preponderance of the evidence burden. One is hard-pressed to find a college or university that does not do so. Schools generally identify the burden of proof in their college sexual misconduct policies. The board of trustees over a college or university generally adopts policy, so formally, boards are making these decisions about which burden of proof to impose for college sexual misconduct proceedings. Administrators, though, write policy, while advocates influence policy. In adopting the lowest preponderance burden, college and university boards are surely following the prevailing winds on campus.

Why the Burden of Proof Is Important

The burden of proof has substantial influence in college sexual misconduct proceedings. A college sexual misconduct proceeding is the classic he said, she said dispute, where the two participants are the only substantial witnesses to the private conduct that led to the dispute. In those two-sided disputes where each side may be adamant that they, and only they, are telling the truth, and they are also the only witnesses, many disputes will be close calls on the evidence. Just a little more evidence this way or that way can easily tip the balance.

If the proof burden were clear and convincing evidence, relatively few complainants might prevail, given the accused student's vehement and arguably credible denials. Yet under the prevailing preponderance standard, just a small factor or two could turn any close-call, he-said-she-said dispute into a win for the complainant. On-campus sympathies for putative victims and against any form of sexual advantage increase the complainant's likelihood of prevailing under the easy-to-meet preponderance burden. The burden of proof is thus hugely important to many outcomes of college sexual misconduct charges.

What You Can Do About It

Students accused of college sexual misconduct can face an uphill climb in disproving false, exaggerated, and unfair charges, especially under the preponderance burden of proof. Yet that uphill climb makes all the more important that the accused student does what the student can do to level the playing field to beat unjust charges. And the one thing most helpful in those circumstances is to retain national academic attorney Joseph D.Lento. If these proceedings were instead cakewalks, then the accused student might reasonably rely on the student's own acumen or on university advisors. They are not cakewalks. They are instead fraught with the risk of losing everything a college or university education is supposed to provide.

National academic attorney Joseph D. Lento has long devoted his considerable skills and his considerable commitment to the highest-quality law practice to leveling the playing field for students accused of college sexual misconduct. Attorney Lento knows how to deploy the available procedures in a strategic approach to successfully defend students facing daunting but false, exaggerated, and unfair charges. You can prevail in a proceeding, even one applying the preponderance of the evidence proof burden. Retain national academic attorney Joseph D. Lento and the Lento Law Firm today by calling 888.535.3686 or going online.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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