Sen. Patrick Leahy, D-Vt.
Controversial language that would have made it easier to convict students of sexual harassment or sexual assault on campus is being removed from legislation that is expected to pass this year after a number of interest groups protested, including a warning from the Foundation for Individual Rights in Education that the move would result in guilty verdicts for “innocent people.”
Sen. Patrick Leahy, D-Vt., had circulated a proposal that would have cemented into place a new standard of proof in sexual harassment cases on college campuses. It replaced the “beyond a reasonable doubt” needed for conviction with only “a preponderance of the evidence.”
But Leahy recently announced the language would be withdrawn.
“Responding to criticism from the Foundation for Individual Rights in Education and others, Sen. Patrick Leahy of Vermont, who is chairman of the Senate Judiciary Committee, will drop a provision in a draft of the Violence Against Women Reauthorization Act of 2011 that would have required college students accused of sexual assault to be tried under the weak ‘preponderance of the evidence’ standard of proof,” FIRE has confirmed.
“Reducing protections for students accused of serious misconduct will not increase justice,” said FIRE President Greg Lukianoff.
FIRE spokesman Adam Kissel told WND, “Actual sexual assault is a crime – a very serious crime. But you need to know who the real perpetrator is before you convict someone.”
He had said the plan as suggested could mean many more innocent people would be convicted.
Leahy’s version of the Violence Against Women Reauthorization Act of 2011 would have put into federal law the new standard of proof established by Assistant Secretary for Civil Rights Russlynn Ali of the Department of Education’s Office of Civil Rights, or OCR, in a “dear colleague letter” earlier this year.
Critics warned then what happened in one North Dakota case would be repeated if the change was made. The Wall Street Journal reported the University of North Dakota found student Caleb Warner guilty of sexual assault by the “preponderance of the evidence” standard and banned him from campus for three years. But the college was later forced to vacate Warner’s suspension when police issued a warrant for the arrest of his accuser … on charges of making a false report to law enforcement.
It was in April when the Department of Education sent a letter to schools and colleges with what some say was an over-reaching interpretation of American jurisprudence.
The Office of Civil Rights within the DOE said that when it came to sexual harassment or violence, there’s no need to “prove beyond a reasonable doubt” who committed a crime on campus, just a 50.1 percent likelihood.
The long-held legal standard of “proof beyond a reasonable doubt” would have been discarded for the more casual “preponderance of evidence” standard.
In a 19-page letter sent to schools and colleges nationwide, Russlynn Ali, assistant secretary for civil rights, said, “[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).”
The letter went on to describe how a “higher standard” of proof, such as “clear and convincing,” are not “equitable under Title IX.”
Thus, without much fanfare or public debate, the “interpretation” of Title IX by the Department of Education’s Office of Civil Rights, was set as the “approved” way of conducting justice in America’s schools and colleges.
WND reported earlier this month that Leahy suggested language in the Violence Against Women Reauthorization Act of 2011 to make the Department of Education interpretation regarding the standard of proof the law of the land.
Robert Shibley, FIRE’s senior vice president, warned then that due process was at stake.
But now the change in the law is on hold.
“We’re grateful that members of the Senate Judiciary Committee have realized that this harmful provision does not belong in the Violence Against Women Act,” said Shibley.
“We hope that the Office for Civil Rights, which after six months still has produced no response to FIRE’s letter pointing out the myriad problems with its new regulations, will realize that stripping students of due process rights is wrong not only in federal law but also in its own mandates,” Shibley said.
As WND previously reported, the OCR interpretation also provides for accusers having the right to appeal a verdict.
“For the same reasons of fundamental fairness that our criminal justice system does not allow the accused to face double jeopardy, Congress should not force college students to face a second hearing for the same charge,” FIRE said.
FIRE is concerned about double jeopardy. If accusers can appeal an acquittal, in essence they are asking for a do-over.
“FIRE continues to harbor concern about the previous draft bill’s requirement that colleges must maintain ‘procedures for the accused and the victim [emphasis added] to appeal the results of the institutional disciplinary proceeding,” the group said.
“The requirement contradicts the principle behind the Fifth Amendment’s prohibition on ‘double jeopardy,’ whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended in either acquittal or conviction.”
FIRE describes itself as is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom and rights of conscience at the nation’s colleges and universities.