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Under fire from critics: guidance on campus sexual assaults

One fundamental distinction between civil and criminal law in the United States resides in the so-called “burden of proof” that must be established to assign liability to an alleged wrongdoer.

In civil cases, a “preponderance of evidence” standard typically serves as the bedrock threshold and hurdle that must be cleared by those who posit wrongdoing by another party.

In criminal cases, conversely, a higher proof standard prevails (and necessarily so, given the heightened adverse consequences that can result for a defendant), namely, a “beyond a reasonable doubt” yardstick.

Guidance issued by federal regulators to college authorities across the country several years ago relevant to the handling of sex assault matters on campuses is mixing up those respective standards in a manner that it unfairly and adversely affecting the rights of many falsely accused parties, say critics.

That guidance, provided by the U.S. Department of Education in 2011, is intended to serve as a blueprint for following through on sexual assault allegations made on American campuses. Because it enables officials to take disciplinary actions against targeted individuals (including expulsion from school) based on the lower-level standard, it is manifestly unfair and needs to be materially changed, contend those who oppose it.

It serves to “deny the often-innocent accused basic due process rights,” says one national legislator who wants the incoming Trump administration to repeal it.

Others, too, are dismayed by the guidelines. One, a senior employee with a group that helps universities develop policy positions, says that colleges are confused by the guidance, which was foisted upon them without any opportunity for public input or debate.

Another points to “innocent people who are getting expelled” by university officials who are proceeding against them pursuant to watered-down burden-of-proof requirements.

The guidelines are being debated under a progressively increasing spotlight. We will be sure to keep readers duly informed of any material developments that occur as discourse on the matter continues to heat up.