Currently, there is no debate about sexual assault. Opinion columnists, One In Four and anyone else who puts their mouth behind a megaphone have never actually disagreed about anything. Here is the hypothetical "other side" of the sexual assault issue.
Many writers for The Cavalier Daily have argued over the years that the University should lower its standard of evidence to find guilty men for rape, sexual assault and sexual misconduct. March 16, 2005, the University lowered the standard of evidence from beyond a reasonable doubt to clear and convincing evidence. Opinion columnist Marta Cook was not alone when she wrote that the University should lower the standard again to a preponderance of evidence.
A preponderance of evidence is a subjective term that is generally considered to mean "if more evidence points to guilt than not." The U.S. criminal justice system requires proof beyond a reasonable doubt for sexual assault (Spicer v. Gregoire). The University's Sexual Assault Board (SAB), however, uses the "clear and convincing standard," which falls between the two, according to legal authorities.
The belief that the University should lower the standard of evidence even further comes dangerously close to the Napoleonic Code: burden of proof should be placed on the defendant.
According to Andrew Tuttle, vice president of One In Four, the group's mission is "to decrease the incidence of rape of sexual assaults and help men get the tools to help a friend or loved one if she is assaulted."
This is a laudable goal. Even though the group does not take a formal position on this issue, One In Four frequently cites the FBI Uniform Crime Report statistic (1995) that false reports of rape occur only eight percent of the time. The inference I make is they believe men who are accused of sexual assault are very likely guilty and too many get off the hook. Therefore, if a man is accused of rape, he is already 92 percent guilty.
One In Four's president, Matt Deasey, agrees that when women actually file a claim of sexual assault, the man is "very likely" to be guilty. What kind of culture are we creating?
Why don't we use the 92 percent guilty type of statistic for other crimes that happen at the University? According to the same Uniform Crime Report, only 24.2 percent of people across the United States who were arrested for aggravated assault were actually convicted. According to the University Judiciary Committee's Web site, a student can be sanctioned up to and including expulsion for aggravated assault with the "beyond a reasonable doubt" standard. At least 75 percent of aggravated assaults at the University do not result in a sanction.
The injustice! Why don't we lower that standard too? It isn't like we haven't had the "beyond a reasonable doubt" standard in place for criminal sanctions for centuries. Why is sexual assault different? Is it insidious? Sure. Harmful? Absolutely. A life-long trauma? You bet.
Some might say that one reason the University should lower the sexual assault standard is because the SAB cannot put a man in jail. The underlying assumption is that the Board's decision is less harmful than a criminal conviction. But, if a man were to be expelled from school under false pretenses, that would: (1) reduce his education level for jobs to a high school degree, (2) probably ruin any academic hopes he had, (3) probably require him to disclose it to any possible employer. Is that insidious? Sure. Harmful? Absolutely. A life-long trauma? You bet.
Some say that very few men are expelled from the University for sexual assault. One opinion column derisively reported that in 2004 no person had been expelled from U.Va. for sexual assault. If we don't expel men in a certain year, should we change the rules to make sure there will be expulsions? Do women feel safer now than they did two years ago?
Another frequent proposal is the idea of imposing a single sanction for sexual assault. While the University lets the punishment fit the crime with every other offense save lying, cheating and stealing, many believe we should include sexual assault as well. Let me give you an example of why the SAB might want to be able show leniency. What if there was a male and female at a fraternity party. Let us say that they are of equal weight and had the same alcohol tolerance. Let us also say they both had the same number of drinks and blacked out and then had sex. What if they both woke up in the morning when the woman believes that she had no intention of having sex the previous night? What if she believes that she would never have sex consensually in this circumstance and believes she was raped? Could she file charges with the SAB for a rape charge? Sure. Could he be convicted? If they had rough sex and the woman had a rape kit performed, than the man would probably be convicted by the SAB.
According to the director of gynecology at Student Health, Dr. Christine Peterson, "a rape kit cannot prove consent ... rape is a legal definition and not a medical one." According to Peterson, rape and consensual sex can be indistinguishable at a medical level.
So should he be expelled with this kind of evidence?
If this example had occurred and the woman did not even believe she was raped but felt uncomfortable enough to file a charge of sexual misconduct against the man with the SAB, the man would be probably found guilty.
Sexual misconduct was defined by Patricia Lampkin, vice president for student affairs, according to a spring 2005 Cavalier Daily article: the act is committed "without intent to harm," where the offender "by failing to correctly assess the circumstances ... believes unreasonably that effective consent was given."
This means, under current guidelines, when there is alcohol involved in this type of situation, even if the woman is supplying it, the man can be held accountable. Is this fair?
Colin Clark is a Health & Sexuality columnist. He can be reached at clark@cavalierdaily.com.
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