A GENUINE open debate on sexual assault is a rare occurrence. After all, no one wants to appear apathetic about the crime or unsympathetic towards the victim. So when a person proposes harsher measures against sexual assault, many people who have reservations are reluctant to speak against the idea. Such is the case when a person proposes lowering the standard of evidence required to convict someone of sexual assault. On and off over the last several years, people have proposed that the University lower the standard of evidence to require only a "preponderance of evidence" for conviction. This proposal can look appealing at first glance, but a deeper examination of the proposal shows that it represents a serious threat to the rights of the accused.
The progression of the argument goes something like the following: Sexual assault is a crime that hurts women. Many women report being sexually assaulted. Lately, few men have been tried and convicted for sexual assault. Therefore, the current system makes it too easy to for rapists to get away with sexual assault unpunished. Currently the Sexual Assault Board, which is in charge of trying sexual assault cases at the University, sets its standard for conviction as "clear and convincing evidence." According to their Web site, this means that "the claim is highly probable and has produced a firm belief or conviction that the allegations in question are true." Changing the standard to a "preponderance of evidence," as some support, would require only that a bare majority of evidence points to the defendant's guilt for a conviction.
In some types of crimes, a preponderance standard could work. Sexual assault, though, is not a black and white issue. The reason for all the shades of gray is simple: drugs and alcohol. A study by University alumna Jacqueline Chevalier and Christopher Einolf, a member of the Sociology department at the University, found a clear link between alcohol and sexual assault reports. According to this study, 92.6 percent of the perpetrators and 83.2 percent of the victims were using drugs or alcohol. It is fairly well known that drugs and alcohol impair both the memory and the judgment of their users. Nicole Eramo, chair of the Sexual Assault Board, said in an interview that in most of the cases "the sex act is acknowledged, and what's debated is the consent." Understandably, this factor can be difficult to determine when one or both of the parties was intoxicated.
After waking up sober, a woman might not remember having consensual sexual intercourse that night after drinking. Since she does not remember giving consent to sexual activity, she could easily imagine she was raped.Virginia state law defines as rape any sexual intercourse "through the use of the complaining witness's mental incapacity or physical helplessness." Physical helplessness is fairly easy to determine, but it is much more difficult to know if the victim was mentally incapacitated. If she charges her partner with rape and it becomes a "he said, she said" situation with no other witnesses, how would the jury decide? Discussing this sort of hypothetical situation, Cavalier Daily writer Colin Clark("Looking for a safe stance on sexual assault? Me Neither.," Oct 23) concluded that under the preponderance of evidence standard, "the man would probably be found guilty."
Are some rapists able to get away with their crime under the current policy? Certainly. This is inevitable in any system of justice that follows the constitutional principle that suspects are innocent until proven guilty. There is an inherent trade-off between punishing more guilty offenders and protecting the rights of the innocent. Thus, lowering the standard of evidence in rape trials might lead to the conviction of more guilty defendants, but it will also punish more innocent defendants.
As long as lenient attitudes towards premarital sexual activity coexist with alcohol consumption, there will be instances where the line between rape and consensual intercourse is unclear. This is not an attempt to blame the victim. The safety and welfare of women should always be protected, no matter how much alcohol or drugs they have consumed. However, concern for women's safety does not give anyone an excuse to undermine the rights of the accused, and that is exactly what lowering the standard of evidence would do.
Stephen Parsley's column appears Wednesdays in The Cavalier Daily. He can be reached at sparsley@cavalierdaily.com
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