A White House Call to Action

In an unprecedented move, President Obama added his presidential powers to the pressure building on colleges and universities* to teach students, staff, and faculty how to prevent and respond to rape and sexual assault. 

What type of education program is required? The White House is working on providing guidance on this question. On January 22nd, President Obama announced that he had created a White House Task Force to Protect Students from Sexual Assault to provide schools with best practices and step up enforcement of federal laws requiring colleges to address the problem of campus sexual assault.

Adding to the urgency, the Task Force must deliver to the President by April 22, 2014:

• examples of prevention programs, and training and orientation modules for students, staff, and faculty, as well as policies and procedures for responding to sexual assault complaints

• recommendations for measuring institutions' prevention and response efforts and making this information available to the public

• proposals for maximizing the government's enforcement activities

As soon as these examples, recommendations, and proposals are available we will have a better idea of what a compliant education program looks like. Going forward, the Task Force is required to submit annual reports to the President regarding implementation of its recommendations.

On the same day as the White House formed the Task Force, the President's Council on Women and Girls presented its report, "Rape and Sexual Assault: A Renewed Call to Action."  This report focuses on the Administration's "major effort to better enforce" federal laws that require institutions of higher education to prevent and respond to campus sexual assault. 

As the report points out, both the Department of Education and the Department of Justice are charged with enforcing these laws, including the Campus SaVE Act which requires colleges and universities to provide prevention education programs for students and employees on domestic violence, dating violence, sexual assault, and stalking.

Currently, the Department of Education is conducting negotiated rulemaking proceedings to draft regulations implementing the specific education requirements of the Campus SaVE Act. Final regulations are expected to be issued by November 2014.

In the meantime, when the Campus SaVE Act became effective on October 1, 2013, the ED said: "we expect institutions to make a good faith effort to comply with the statutory requirements in accordance with the statutory effective date." While we wait for the final regulations, we'll look for the Task Force report to provide further guidance on what constitutes a good faith effort.

* All institutions of higher education that receive federal funds are covered by Title IX and the Campus SaVE Act. These institutions include colleges, universities, community colleges, graduate and professional schools, for-profit schools, trade schools, and career and technical schools.

Think About It Wins Gold NASPA Excellence Award

Think About It, CampusClarity's online substance abuse and sexual violence training program for colleges and universities, has won the 2014 Gold NASPA Excellence Award for Violence Education and Prevention.

NASPA, Student Affairs Administrators in Higher Education, is the leading association of student affairs professionals in the United States. The NASPA Excellence Awards are presented annually in recognition of NASPA members who are "transforming higher education through outstanding programs, innovative services, and effective administration."

The awards, which are presented in Gold, Silver, and Bronze categories, recognize excellence in a variety of fields related to student affairs and higher education. Winners are determined by a panel of veteran student affairs professionals, who judge each entry by criteria that include:

• Impact on student learning
• Success in addressing student needs
• Use of innovative and creative methods, practices, or activities
• Application of available or emerging theoretical models and practical research

Think About It is a collaboration between CampusClarity and the University of San Francisco's Division of Student Life. In addition to training students to confront and prevent serious campus problems such as sexual violence and substance abuse, the program helps schools comply with the training requirements of the Campus SaVE Act and Title IX, while also providing administrators important insights into the culture of their campus and student body.

More than thirty-five colleges and universities use Think About It to train their students.

Confidentiality vs. Student Safety

A victim's request for confidentiality is a problem that schools often grapple with under the difficult circumstances of a sexual assault case. In a previous post we discussed how FERPA allows public disclosure of the outcome of student conduct hearings when accused students are found responsible for sexual assault. But what about a victim's request for confidentiality when the report is made? Does the school have an obligation to respect the victim's wishes? The following case provides one example of how following a school's reporting policies can have unintended results.

Seventeen-year-old Anna Livia Chen told her residential assistant she would not participate in Swarthmore College's Acquaintance Sexual Assault Prevention workshop for incoming freshmen. As a childhood sexual abuse survivor, Anna said it would be too emotionally difficult for her to listen to other survivor's stories, which is a standard part of the program.

Anna was abused when she was a junior high school student in California. Given that the incident occurred years before and thousands of miles away, Anna and her RA didn't think this needed to be reported to the Title IX coordinator. Swarthmore's sexual assault policy "applies to off-campus conduct that is likely to have a substantial adverse effect on any member of the Swarthmore College community or Swarthmore College … ."

However, a facilitator who contacted Anna to arrange a private session told the RA that Swarthmore's new interim policy requiring all college employees to report information about sexual assault to Public Safety applied to Anna's case. The RA complied by reporting the incident to Swarthmore's Title IX coordinator, but stressed that Anna "was no longer in any danger whatsoever" and had "all the support" she needed from her family, friends, and therapist back home.

The Title IX coordinator, in turn, was required by the school's policy to report the information to the school's general counsel who advised that under Swarthmore's policy the abuse must be reported to the Pennsylvania child abuse hotline. It should be noted that pending Senate Bill 31 would add postsecondary school employees to the list of mandatory child abuse reporters in Pennsylvania.

When she was contacted by child protective services, Anna told CPS that she did not want them to investigate her case. Later, on Anna's 18th birthday, CPS informed her that it was legally required to notify local police about her case.

Swarthmore's Policy Goal

According to Swarthmore's secretary of college, the reporting policy that set this chain of events into motion was meant "to not only meet the letter and spirit of the law, but to ensure that our policies assure the safety of our students, provide meaningful support to victim/survivors, and enable us to respond with the highest levels of fairness, compassion, and respect for privacy."

But this is how Anna described her experience: "So much of my time was being drained by having meetings with various administrators and resources, not to mention the emotional energy it took. I had no time for self-care, which is something that I desperately needed with everything that was going on. I am still frustrated that this process got to a point where it overtook my life in the way that it did."

Now Anna is working on changing Swarthmore's policy and procedures to prevent other victims from having to go through the same experience.

Title IX and Victim Confidentiality

What does Title IX require schools to do to protect a sexual assault victim's confidentiality? First, Anna should have been told that school employees are required to report information they receive about sexual assault. If she wanted the information to remain confidential, she should have been referred to confidential resources, such as religious and professional counselors.

Second, Title IX requires schools to respect a victim's request for confidentiality in a sexual assault investigation and response except when it interferes with the school's ability to stop harassment and protect the safety of its students. The OCR's 2001 Handbook explains: 

In all cases, a school should discuss confidentiality standards and concerns with the complainant initially. The school should inform the student that a confidentiality request may limit the school’s ability to respond … If the student continues to ask that his or her name not be revealed, the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.

In its 2008 publication, "Sexual Harassment: It's Not Academic," the OCR listed three factors that must be weighed against the victim's request for confidentiality in light of the school's "responsibility to provide a safe and nondiscriminatory environment for all students":

·              seriousness of the alleged harassment;

·              age of the harassed student; and

·              other complaints that the same individual has harassed others.

....
Additionally, state or local laws may require schools to report incidents to the police.

In addition, the April 2011 "Dear Colleague Letter" included a fourth factor that must be weighed against the victim's request for confidentiality: "the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an 'education record' under [FERPA]." The bottom line is that the victim should be told if the school cannot ensure confidentiality.

The OCR's latest official word on victim confidentiality is found in the Resolution Agreement between the OCR and the University of Montana. As part of that settlement agreement, UM adopted a policy with "an assurance that the University will keep the complaint and investigation confidential to the extent possible." Below is UM's policy protecting victim confidentiality:

UM's Policy 507 – Title IX adopted May 25, 2012

IV. Confidentiality of the Alleged Victim:

Student confidentiality will be respected to the extent possible. Even if the alleged victim requests confidentiality or asks that the complaint not be pursued, a campus is required to:
A. take all reasonable steps to investigate and respond to the complaint to the extent possible consistent with the alleged victim’s wishes;
B. notify the alleged victim that the failure of the alleged victim to pursue a complaint may limit the campus’ ability to fully address the matter; and
C. report the incident or assault to local law enforcement authorities if a health or safety emergency as defined by state or federal law is found by the campus to require such reporting.

Summary

To summarize, these are the essential points that college employees need to know about a victim's confidentiality:

·              if you expect to or do receive information about sexual assault, explain that you need to make a report to the school's Title IX coordinator

·              maintaining confidentiality may limit the school's ability to fully respond to the alleged assault

·              students who desire a confidential conversation should meet with a counselor or other confidential resource

·              if individuals prefer no action be taken at that time, let them know you will share their preference with the Title IX coordinator

·              explain to the victim that their request for confidentiality will be respected to the extent possible, however:

o               the school must respond to sexual assault effectively and prevent harm to other students

o               the accused student may have a right to receive information about the allegations if it is included in the school's education records

Finally, if disciplinary action is not possible because the victim insists on confidentiality, the OCR says the school "should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence." Those "other steps" are education and prevention, such as defining sexual misconduct, deciding what the school's policies and disciplinary procedures are, and possible sanctions for violating the school's rules of student conduct.

Social Media and Sexual Assault

Audrie Pott's sexual assault was just the beginning of her nightmare.  On Sunday night of Labor Day Weekend, Audrie passed out drunk at a friend's house.  Three male classmates took her to an upstairs bedroom, where they stripped her down to her underwear, drew on her naked body in green marker, and sexually assaulted her.  They also took pictures.  Audrie spent the next eight days frantically trying to find out how far those pictures had spread, and enduring the abuse of classmates who had already seen them.  Then she hung herself.

Sadly, this narrative of the tragic results of the combination of sexual assault, bullying, and social media is by now a familiar one. 17-year-old Rehtae Parsons hung herself after a year of bullying prompted by the distribution of photos showing her rape. The nationally infamous rape case in Steubenville, Ohio, in which two high school football players were convicted of sexually assaulting a sixteen-year-old girl, featured similar bullying and documentation of the assault on social media. Two thirteen-year-old girls were called "whores" on Twitter after a pair of eighteen-year-old football players were arrested for statutory rape.

In an age when everything that's newsworthy, and plenty that's not, is Tweeted, Facebooked, or Instagrammed, it may come as no surprise that social media has invaded even this particularly ugly aspect of our lives. However, sexual violence activist and expert Dr. Rebecca Campbell, whose research we've written about in the past, suggests that the relationship between sexual assault and social media may be deeper and more disturbing. "Sexual assault is a crime of power and dominance," she says. "By distributing images of the rape through social media, it's a way of asserting dominance and power to hurt the victim over and over again."

Of course, as the cases described above demonstrate, the continued trauma endured by sexual assault victims through social media isn't perpetrated solely by their attackers. Any number of their peers share photos and videos or use social media as a platform from which to bully victims, often for having reported the assault. In this way, social media discourages victims from reporting these crimes by facilitating a reaction to assault comparable to the secondary victimization suffered at the hands of law enforcement that we've previously written about. Such bullying seems to be both a symptom of and a contributing factor to a society that blames victims for their sexual assaults.

Yet the very photos and videos whose dissemination can torture victims of sexual assault can also lead to convictions for their assailants. Indeed, visual images like these can be essential to securing a criminal conviction in cases of sexual assault, where muddled recollections and conflicting accounts can make it very difficult to prove a perpetrator's guilt beyond a reasonable doubt.

Moreover, some of the very aspects of social media that make it such a virulent breeding ground for bullying also make it the ideal platform for survivors to find communities where they can share their stories and receive much-needed support.  The anonymity of such spaces makes it possible for survivors not yet ready to reveal their experiences to friends and family to share their stories, allowing them to spread awareness and, in some cases, help the healing process.

Perhaps its most important aspect though is the potential role social media plays to prevent assaults in the first place by changing the culture that tolerates and indeed encourages such behavior. In an article for the Fordham Observer, Alissa Fajek argues that the outrage over cases like Steubenville, often fostered and spread via social media, can help to spread awareness and begin to change that toxic culture.

Clearly, the story of social media and sexual assault is more complicated than social media simply being used as a platform to fight sexual assault or as an extension of the crime itself. Because, like any other tool, the person using it must decide whether social media is used to hurt or to heal. Educating students about the enormous impact their decisions have on the survivors of sexual assault suggests the importance of harm-prevention training. The more students know about social media's effect on sexual assault victims — the damage it can cause or, alternatively, its power to solve the problem of sexual assault — the better equipped they'll be to use social media in way that heals instead of hurts.

Privacy vs. Safety: Does FERPA Apply to Sexual Assault Cases?

Navigating the muddy waters between protecting student privacy and addressing complaints of sexual misconduct still causes confusion. Does FERPA prohibit disclosure of information about sexual assault cases? Many perceive a conflict between the confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA) on the one hand, and the competing rights of sexual assault victims and other students under Title IX and the Clery Act on the other.

While this post is only intended to address whether FERPA prohibits disclosure of information about peer sexual assault complaints, a few basics are in order. As the Department of Education explained in a 2006 interpretation letter, FERPA protects "education records" maintained by or for the school which are tangible documents (including media and electronic data). FERPA does not, however, protect personal knowledge or observations:

FERPA applies to the disclosure of tangible records and of information derived from tangible records … As a general rule, information that is obtained through personal knowledge or observation, and not from an education record, is not protected from disclosure under FERPA.

Therefore, even if an education record exists containing the same information, FERPA doesn't protect the confidentiality of information independently obtained from personal knowledge or observations.

In addition, the education records must contain "information directly related to a student" — in other words, they must directly or indirectly identify the student. So far this seems pretty straightforward. However, the various exceptions to FERPA protection when sexual assault is involved seem to cause confusion.

Starting with a clear exception, schools may disclose — without the accused student's consent — the final results of a disciplinary proceeding involving alleged acts that, if proven, would constitute a violent crime or non-forcible sex offense:¹

• to anyone if the alleged perpetrator is found to have committed the offense
• only to the alleged victim if the accused is not found responsible. In this case the victim must be told not to disclose the outcome to a third party

The result of a disciplinary proceeding is not final until after any appeals. Once the result is final the school may disclose the student's name, the offense, and any sanction imposed, as indicated above.

Another slightly more confusing exception allows disclosure of the investigative reports and other records²of campus police and security units involving sexual assault complaints if they are created for a "law enforcement purpose." Whether the records qualify for this exception depends on (1) who created the records, (2) why they were created, and (3) who maintains them.

Under FERPA, if the records are created "exclusively for the purpose of a possible disciplinary action against the student" those records would be "education records." However, the ED Secretary has said that it "expects such occasions to be very rare, especially when incidents involv[e] criminal conduct by students at postsecondary institutions." Thus, if a student reports a sexual assault to campus police and other security staff their records are probably not protected from disclosure by FERPA.

A couple of cases illustrate how FERPA has been misapplied at the expense of student safety. Last year Oklahoma State University did not alert campus or local police when a victim reported to Student Affairs that he'd been molested. Over the next month the accused molester committed more assaults. Finally, a student newspaper reporter received an anonymous tip and contacted police, which led to the perpetrator's arrest. In September, Nathan Cochran pled guilty to three criminal counts of sexual battery for fondling and performing oral sex on other male students while they slept in his fraternity house. Cochran was suspended from OSU for three years.

When the OSU victim first came forward, no tangible education record existed relating to the accused student. LeRoy Rooker, the ED's chief FERPA enforcer for 21 years, said "Just forget FERPA at that point."

And even if an education record existed a third exception, FERPA's health and safety exception likely applied. Again, Rooker provides guidance in ED's 2006 interpretation letter: 

This provision allows an educational agency or institution to disclose personally identifiable information from education records, without prior written consent,

in connection with an emergency [to] appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons. 20 U.S.C. §1232g(b)(1)(I); 34 CFR §§99.31(a)(10) 99.36.³

In another case, Swarthmore College's disciplinary proceeding found the accused student responsible but the victim felt the sanction did not protect her or other students in part because the accused's identity was never revealed by the school. Though her assailant was found responsible for rape and suspended, he will be allowed to re-enroll after she graduates. In the meantime, his suspension wasn't made public so he continues to visit the campus and present a safety risk. When Liz Braun, Dean of Students at Swarthmore, asked for student feedback about the school's College Judiciary Committee process, the victim described the CJC process as "unnecessarily torturous." She asked a valid question in her response to Dean Braun: "Should the outcomes of CJC hearings and appeals be made public with identifiable names of perpetrators?" In fact, the accused student's name could be made public if the CJC's final decision found him responsible. This would not violate FERPA and could help protect other students.

Responding to a question about obtaining information from schools regarding sexual assaults against college students, ED Secretary Arne Duncan encouraged journalists to seek assistance from Department of Education staff if they encounter schools misapplying FERPA. While participating in a conference call organized by the Education Writers Association, Duncan stated, "Where districts or schools are — I'm not saying they are — but if they're sort of hiding behind FERPA and not sharing simple information, we're happy to try and assist there."

A journalist from Student Press Law Center said she plans to follow up with ED's chief privacy officer, Kathleen Styles. We'll be looking for further guidance on this issue but hope that in the meantime this post provides some explanation of what is and isn't a legitimate use of FERPA when it comes to protecting the privacy of students accused of committing sexual assault.

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<sup>1. While this post focuses on sexual assault complaints, this exception to FERPA protection covers a number of violent crimes and non-forcible sex offenses listed in 34 CFR §99.39 and 34 CFR §99.31(13)and (14) covers the conditions that allow disclosure of information without consent.

2. 34 CFR §99.8(b)(1) defines "law enforcement records" as "records, files, documents, and other materials that are — (i) Created by a law enforcement unit; (ii) Created for a law enforcement purpose; and (iii) Maintained by the law enforcement unit." While FERPA allows disclosure, the confidentiality of records maintained by a school's security staff may be restricted by the school's policies or applicable State law.

3. 34 CFR §99.31(10) provides that prior consent not required to disclose information where "The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36."</sup>

Prevention Must Include the LGBTQ Community

Recent research suggests that members of the LGBTQ community are just as—if not more—likely to be victims of sexual violence as their heterosexual peers. The Centers for Disease Control and Prevention 2010 Findingson Victimization by Sexual Orientation found that nearly half of lesbian women, four in ten gay men, half of bisexual men, and three-quarters of bisexual women have been victims of sexual violence in their lifetime. Such alarming figures make it clear that sexual assault is a problem that affects students of all sexual orientations. Moreover, the often marginalized position of the LGBTQ community compounds and complicates numerous issues faced by survivors of sexual assault.

For example, as we've written about in the past, it's not unusual for survivors to be discouraged from reporting by the fear that they will encounter hostility on the part of law enforcement and other first responders. The fear of hostility motivated by homophobia compounds the problem for members of the LGBTQ community. For some LGBTQ survivors, reporting a sexual assault could mean "outing" themselves before they're prepared to reveal their sexuality. There's also the fear that, because the conventionally accepted narrative of sexual violence focuses on heterosexual assaults, an assault involving members of the LGBTQ community will be sensationalized.

Another ugly fact is that homophobia not only contributes to underreporting of sexual assault in the LGBTQ community, but can also motivate assaults against members of that community. According to the University of Minnesota Morris Violence Prevention Center, sexual assault is often used as a weapon by those who wish to humiliate LGBTQ people for their sexual orientation, or (especially in cases where a lesbian woman is assaulted by a straight man) somehow "cure" them of their orientation. The unhappy overlap between hate crimes and sexual assault is especially important for administrators to be aware of in light of the Campus SaVE Act's requirements for schools to include hate crimes based on sexual orientation or gender identity in their annual security reports.

These issues make clear the importance of harm-prevention programming that encompasses the entire spectrum of a campus population. The current conversation about sexual assault on college campuses is, of course, incredibly important and a welcome change from decades of silence on an issue that won't go away unless it's addressed directly. But does the conversation campuses are having about sexual violence include all of the students affected by the problem? A conversation about sexual violence on college campuses that revolves around or even assumes scenarios involving heterosexual male perpetrators and heterosexual female victims fails to address the needs of survivors whose experiences fall outside the range of that common but by no means universal experience.

 Administrators need to consider programming designed to help all students by covering the unique problems faced by members of the LGBTQ community. By bringing these issues into the conversation, schools encourage students to report sexual assault, regardless of their gender, race, or sexual orientation.  Inclusive and effective prevention training must recognize the grim but important truth that sexual assault can affect any student on campus.

Do You Know Your Campus's Sexual Assault Red Zones?

Most schools concentrate their substance-abuse and sexual-violence prevention efforts during the first six weeks of the academic year, a period called the "red zone."  First-year women are believed to be at the highest risk for sexual assault during these first six weeks because they are unfamiliar with college social life and thus vulnerable to sexual predators.

Though research does show that first-year women are at greater risk for sexual assault than other undergraduates, no studies (that we're aware of) have shown that the first six weeks of school are the highest-risk period for them.

Researchers, however, have found evidence for other "red zones." These red zones, researchers suggest, are particular to schools and are the result of local factors, such as rush periods, big games, or other important social events.

In a 2008 study, William Flack and his colleagues found that second-year women at one college were at a higher risk for sexual assault between the end of the first month of school and fall break.  Flack tentatively attributed this spike in risk to the fact that many second-year women were pledging local sororities before fall break. The high number of parties and heavier drinking during pledge week, Flack suggested, put the young women at greater risk for sexual assault.

Flack concluded: "Risk for unwanted sex associated with the academic calendar year may have more to do with the available range of types of social events in which students engage...the contexts within which those events take place, and the sometimes intense pressures on students to conform to campus social mores, than with students’ inexperience of college social life per se."

Other research, meanwhile, has found that the risk of sexual victimization is evenly spread out across the school year (Fisher et al., 94-95).

Taken together, this research suggests that schools should consider spacing their prevention effects across the entire first year instead of frontloading prevention efforts in the first six weeks of school.

To determine the timing of the programming, administrators might identify major campus events that put students at greater risk for sexual violence or substance abuse and then schedule programming around those events.

Schools could also develop follow-up programming and re-orientations for students in their second, third, and fourth years. These follow ups could present students with new information that is more relevant to their experience -- such as upcoming rush or pledge weeks -- thus allowing students to continue a discussion that often seems to end after first-year orientation. After all, though women may be at a relatively lower risk of sexual assault later in their college careers, programming should be addressed to potential bystanders and perpetrators as well.

Indeed, spreading programming out isn't just consistent with research about red zones, it's also good pedagogy. Spacing any kind of practice across time (rather than massing it in one long event) promotes better long-term retention of material.

Sexual violence is not just a problem in the first six weeks of school and it's not just a first year problem. All students are responsible for preventing sexual violence.

Further Reading

Fisher, B.S., Cullen, F.T., Turner, M.G. (1999) "Extent and Nature of the Sexual Victimization of College Women: A National-Level Analysis." Washington, DC: Department of Justice, National Institute of Justice.

Flack, W.F., Jr., Caron, M.L., Leinen, S.J., et al. (2008) "'The Red Zone': Temporal Risk for Unwanted Sex Among College Students," Journal of Interpersonal Violence, 23, 1177-1196.

Kimble, M., Neacsiu, A.D., Flack, W.F., Jr. and Horner, J. "Risk of Unwanted Sex for College Women: Evidence for a Red Zone." Journal of American College Health, 57, 331-337.

Thalheimer, Will. (2006) Spacing Learning Events Over Time: What the Research Says. Work-Learning Research, Inc. Accessed 18th November 2013 <http://www.work-learning.com/catalog.html>

Why the Semantics of Rape Matter

In December of 2011, the FBI amended its definition of rape from "the carnal knowledge of a female, forcibly and against her will," to "Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim." Phrases like "carnal knowledge" and the insistence that rape victims must be female might suggest the outdated definition’s antiquity—in fact, it had stood since 1927.

How rape is defined is an issue with consequences that go beyond the merely semantic. Consider, for example, this recent post on the gulf between the prevalence of sexual assaults as reported by researchers like Mary Koss (who found that 1 in 4 women are the victims of rape or attempted rape before leaving college) and as reported by the FBI, which, in 2012, reported 26.7 forcible rapes per 100,000 inhabitants. The discrepancy can be attributed, at least in part, to how each study defined terms like "rape" and "sexual assault."

The FBI’s new definition will apply to how it collects and reports statistics like the ones quoted above—those regarding the incidence of rape. According to Attorney General Eric Holder, "This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes." Indeed, an emphasis on penile-vaginal penetration and the use of force limits what acts are counted as rape. With that in mind, it is particularly alarming to realize that for 84 years the FBI was using a definition of rape that didn’t include date rape or rape involving a male victim, perpetuating the myth that rape is only committed by strangers who jump out of the bushes.

The real-world consequences of how rape is defined make the history of the word itself both significant and instructive. Our English word "rape" is derived from the Latin raptus or rapere.  Its first appearance in British law refers not to any sort of sexual assault, but instead to violent theft of property. That linguistic connection is no coincidence. In the 19^th century restitution for a rape resulting in pregnancy was paid not to the victim but to her father, and the rape of a woman by her husband was not recognized as a crime until the latter half of the 20^th century. The conceptualization of rape as an attack on a woman, instead of the appropriation of the commodity that is her chastity, is a shift that has taken too long to come.

Today, a long-overdue shift in the way we define and conceive of rape is occurring, evidenced by the FBI’s updated definition. The FBI’s old definition bears no small resemblance to the English common law definition of rape: "carnal knowledge of a woman, forcibly and against her will."  Matthew Lyon, writing for the Journal of Criminal Law and Criminology, parses this definition into three elements: "intercourse, force, and lack of consent." Now that women are widely viewed as people instead of property, the most important change in the way we define rape today is the shifting emphasis from the second element of that ancient definition, force, to the third, lack of consent.

That shift is obvious in the new FBI definition, which notably makes no reference to force.  It also has important legal consequences. At one time many states required rape victims to prove a certain degree of physical resistance beyond a reasonable doubt in order to secure a conviction—so as to prove that force was involved in the sexual assault.  Thanks to rape’s shifting definition, many states have loosened or, in some cases, completely removed the requirement for "rigid resistance" on the part of the victim—a positive outcome, given recent research suggesting that for many sexual assault victims, physical resistance of any kind becomes physically impossible once the assault is initiated. 

Similarly, thanks to the new found emphasis on consent (or rather the lack thereof) as opposed to force, certain states have begun to define the post-penetration continuation of intercourse after consent has been withdrawn as rape. Previously, it was widely held that once a woman gave consent and penetration had occurred, there was, at least legally, no turning back. Emphasizing consent over force, however, leads logically to a different conclusion. Consent can be withdrawn at any time and once it has continued intercourse becomes rape.

The blunders of insensitive politicians have brought notoriety and national attention to the issue. In 2008, Tennessee Senator Douglas Henry declared that rape today "is not what rape was." He elaborated, saying that, "Rape, when I was learning these things, was the violation of a chaste woman, against her will, by some party not her spouse." In an even more infamous incident, former Rep. Todd Akin claimed last year that, "If it's a legitimate rape, the female body has ways to try to shut that whole thing down." Such gaffes point to the suspicion with which many still view a definition of rape based on lack of consent as opposed to the use of force.  That such gaffes are being made by people who hold positions of significant power points to what is at stake in this ongoing debate.

In fact, as recently as 2011, the No Taxpayer Funding for Abortion Act, which, as its name might suggest, would have banned federal subsidization of abortions, made exception specifically for cases of "forcible rape." The distinction raised an outcry from women’s group, who pointed out that such language could exclude victims of date rape or statutory rape. "Forcible" was eventually removed from the bill, although it still failed to pass the Senate.

A common refrain of activists opposed to that particular qualification was that "rape is rape." However, even as rape’s meaning has shifted to focus on a lack of consent, a whole host of qualifiers has sprung up, often to make the distinction between rape that involves force and rape that doesn’t.  Date, statutory, legitimate, forcible, gray, the list goes on and on. The question is whether those qualifiers clarify, or merely diminish? To which one might answer that the definition of "rape" is not merely semantic for the victims.

The Neurobiology of Sexual Assault

In our ongoing coverage of federal investigations of the University of Montana’s response to sexual assault, we reported on a case in which a UM official overturned a previous ruling against a student accused of sexual assault because he believed that certain statements made by the victim were “hesitant and equivocal.”  The deciding factor?  Her use of the phrases “I think” and “I don’t think” when describing the assault.  The official in question determined that those phrases undermined the victim’s credibility, and as a result overturned the previous ruling against her alleged assailant.

The UM case may seem extreme, but researchers suggest that the perceived credibility of the victim of a sexual assault is often the deciding factor in whether or not the assault is prosecuted or even investigated.  Dr. Rebecca Campbell, professor of Psychology and Program Evaluation at Michigan State University and an expert in victimology, especially as it applies to victims of sexual assault, found that 86% of sexual assaults reported to police are never referred to prosecutors.  Moreover, through extensive interviews with both law enforcement and victims, Dr. Campbell determined that the perception of a victim’s credibility (or lack thereof) is often an important contributing factor to the failure to refer these cases to prosecutors.  She quotes law enforcement officials who told her “The stuff (sexual assault victims) say makes no sense,” “I see them hedge, making it up as they go along,” and “They can’t get their story straight.”

Such attitudes not only contribute to case attrition, they discourage victims from reporting sexual assaults in the first place because they don't want to subject themselves to the "secondary trauma" of not being believed. 

Failure to report sexual assault is itself a serious problem, starkly illustrated in this recent post exploring the origins of the oft-quoted statistic that 1 in 4 women are sexually assaulted before graduating from college.  That alarming number is even more disturbing when considered in light of researchers' estimates that less than five percent of attempted and completed sexual assaults of college students are reported.  Which is why new research by Dr. Campbell on the neurobiology of victim’s response to the trauma of sexual assault has the potential to dramatically improve the handling of sexual assault cases.

Dr. Campbell’s research suggests that the hesitancy or even inconsistency with which survivors report sexual assault may have nothing to do with their veracity and everything to do with the brain’s natural response to physical trauma.  Such trauma results in the brain releasing a flood of hormones during the assault.  While those hormones may facilitate fight or flight, they are less beneficial to the process of creating memories.  The two structures in the brain responsible for memory creation, the hippocampus and the amygdala, are both highly sensitive to fluctuations in hormone levels. 

The flood of hormones triggered by a sexual assault can lead to the victim's memory of the trauma being fragmented and difficult to recall.  This, in turn, leads to the confusion and hesitancy that law enforcement officials are trained to interpret as clues of dishonesty.  The problem is only compounded by inebriation, a particularly troubling complication given the fact that 70% of sexual assault victims have been drinking at the time of their assault.

Dr. Campbell’s research has other important implications for professionals dealing with reports of sexual assault.  Those who deal with victims of sexual assault, as well as victims themselves, are often confused by the flat or emotionless affect survivors sometimes display immediately after an assault.  Such a reaction strikes many as being inappropriate for a person who has just undergone a traumatic experience.  It may lead victims to feel guilty, and others to doubt whether they're telling the truth.

Dr. Campbell, however, explains that such a reaction is not a symptom of dishonesty or a sign that a victim is somehow culpable in their own assault, but instead the consequence of natural painkillers released by the human body in response to physical trauma.  During an assault the body releases opiates to block the physical and emotional pain of the attack.  Those opiates are the natural equivalent of the morphine that might be administered to a surgery patient.  As pointed out by Dr. Campbell, “morphine’s not sensitive to subtleties.”  The body’s naturally-occurring painkillers behave the same way, masking emotional pain and leading to the monotone response that strikes some law enforcement officers as suspicious for a victim of recent sexual assault.

Finally, Dr. Campbell’s research posits a phenomenon known as “tonic immobility” as an explanation for certain sexual assault victims' failure to fight back or to run away.  Tonic immobility (also known, at least in this context, as rape-induced paralysis) is an autonomic response wherein the body freezes in situations that provoke extreme fear.  It is an involuntary response, and its most marked characteristic is total muscular paralysis.  Fighting back or running away is literally impossible for a victim of rape-induced paralysis, whose body has decided for her that the safest course of action is to play dead.  Thus, the failure to fight back, run away, or in some other way physically resist sexual assault does not mean that a victim “wanted it” – the assumption of many institutions and officials who treat such failure of resistance as evidence of consent.

And, even when a sexual assault victim is physically capable of moving (research suggests that the proportion of rape victims who suffer from tonic immobility may approach fifty percent) it doesn’t necessarily mean that she is psychologically capable of doing so.  Besides impairing memory formation, the hormones released during a sexual assault prevent optimum operation of the circuits in the prefrontal cortex that make rational thought possible.  For the victim of rape or some other form of sexual assault, the thought process needed to resist may not be present during the assault itself.

Dr. Campbell’s research is important not only because it might alleviate the guilt of survivors struggling to understand their reaction to an assault, but also because it suggests certain crucial improvements that might be made to the way law enforcement and other officials handle sexual assault cases.  Failure to resist assault, inability to recall events clearly or sequentially, and surprisingly flat reactions to such trauma aren't necessarily suspicious, and certainly should not be grounds for throwing out a case. 

Perhaps most significant though are the implications for interviewing victims.  Dr. Campbell’s research not only suggests why victim’s accounts often seem confused and incoherent – it also suggests a solution to the problem.  She says, “It’s just going to take some time and patience for (a survivor’s recollection) to come together.”  She recounts the story of a veteran detective who insisted on getting a sexual assault victim coffee before interviewing her, having found, after years in his position, that “If you give them a few minutes to breathe, it starts to make more sense” – and made little difference to his ability to discern a false report from an honest one.  While this may go against more traditional interview-taking procedures, Dr. Campbell’s research suggests that the institutionalization of a practice similar to that veteran detective’s coffee-break might not only offer survivors a welcome reprieve in which to gather and consolidate fragmented recollections, but also lead to more accurate investigations.

The presentation in which Dr. Campbell outlines these findings, and their implications for law enforcement, began as training for the Sexual Assault Kit Action Research Team in Detroit – around twenty police officers, nurses, prosecutors, and crime lab workers.  Since then, she has educated hundreds of audiences on her findings and what they mean for workers who deal with the victims of sexual assault.  She has delivered a presentation sponsored by the Department of Justice and the National Institute of Justice, and has collaborated with the writers of “Law & Order: Special Victims Unit” to write an episode involving a sexual assault and rape-induced paralysis.

During her presentation for the National Institute of Justice, Dr. Campbell shared a comment posted by a survivor of sexual assault on a blog post connected to that Law & Order episode which movingly illustrated the value of her work.  “I cannot believe I am reading this article. After years of blaming myself, questioning myself, feeling tormented, I now understand why I froze every time I was assaulted. It now has a name. I don't have to wonder why or what's wrong with me or why didn't I do anything. I can't tell you how much relief this article brings me. You must know how much your website and your work helps those of us who have suffered in silent torment and agony. You give us a voice. You give us compassion. You give us strength and hope. There are no words to express the gratitude I feel.”

How do we know 1 in 4 women will be sexually assaulted in college?

You've probably seen the statistic before: 1 in 4 women will be the victim of attempted or completed rape by the time they graduate from college.

It's a startling number -- one that illustrates the urgency of efforts to stop sexual violence on college and university campuses.

But where does this alarming statistic come from? And is it accurate?

Changing How Sexual Violence Is Measured: The Sexual Experiences Survey

The first major study to report the one in four statistic was based on the Sexual Experiences Survey (SES), a questionnaire developed by Mary Koss and her colleagues in the 1980s to correct what they perceived to be shortcomings in the way law enforcement agencies measured sexual violence.

At that time, estimates of rape relied on the FBI's Uniform Crime Report (UCR) and the Bureau of Justice Statistics' (BJS) National Crime Survey (now called the National Crime Victimization Survey).

The UCR, as critics pointed out, only measured rapes reported to law enforcement agencies, even though research dating back to the 1950s indicated that many if not most rapes went unreported (see Kirkpatrick, cited below).

The BJS attempted to make up for this reporting gap by administering the National Crime Survey, which asked representative households about reported and unreported crimes. But critics objected to the way that survey was administered and how its narrow definition of rape, which focused on penile-vaginal penetration, excluded other acts that legally qualified as rape. Furthermore, researchers discovered that the very wording of survey questions about sexual assault influenced how (and if) women responded.

As Koss explained in her journal article, "The Hidden Rape Victim," researchers couldn't simply ask women if they had been the victim of "rape" or "sexual assault" because not all victims recognized or acknowledged that they had been raped. Indeed, the confusion surrounding the definition of rape and stigma attached to its victims made some women reluctant to report or even realize that they had been raped.

Koss called these women "unacknowledged rape victims," explaining, "[a]n unacknowledged rape victim is a woman who has experienced a sexual assault that would legally qualify as rape but who does not conceptualize herself as a rape victim" (Koss 1987, 195).

To overcome this problem, Koss and her colleagues designed survey questions which graphically described rape and other forms of sexual assault without using the word "rape." Koss's descriptions were based on legal definitions and included a broader range of victimization than just penile-vaginal penetration.  (It's worth pointing out, however, that Koss's study did not include verbal coercion in the definition of rape, as is sometimes assumed.)

Using the SES questionnaire, Koss found that 27.5% of college women reported experiencing attempted or completed rape since the age of 14 (Koss 1987) . In other words, roughly 1 in 4 women in college had experienced rape -- though not necessarily while in college.

Criticism of "Sexual Politics"

The survey stirred up considerable controversy when Koss published the results in Ms. Magazine. Critics were quick to point out that most of the women identified as rape victims in the survey nonetheless answered "no" to the question "Have you ever been raped," the final item in the survey. Of course, the criticism ignored the fact that Koss designed the survey specifically to correct for the expectation that not all women who had been raped would identify themselves as rape victims.

Critics also argued that the way Koss phrased her questions led to over-reporting. Neil Gilbert, a professor of social welfare at Berkeley and prominent critic of the results, described the survey as "awkward and vaguely worded."

Gilbert was especially critical of Koss's questions about incapacitated assault. For example, one of Koss's questions asked, "Have you had sexual intercourse when you didn't want to because a man gave you alcohol or drugs?"  "What does having sex 'because' a man gives you drugs or alcohol signify," wrote Gilbert. "[A]s the question stands it would require a mind reader to detect whether an affirmative response corresponds to a legal definition of rape" (Gilbert 357).

Koss and her colleagues have since revised (and continue to revise) the Sexual Experiences Survey in response to these criticisms, rewording some of the questions to more accurately reflect legal definitions and to be sure that an affirmative response means a crime occurred.  However, the approach remains the same: creating a survey with graphically-worded questions that avoid the labels of rape and sexual assault.

Subsequent Surveys: Validating the Original Findings

Koss's original findings continue to be widely cited and are one source of the 1 in 4 statistic.

However, similar surveys have found comparable levels of sexual violence nationally or on college campuses: 1 in 6 U.S. women said they experienced a completed or attempted rape (National Violence Against Women 2000), 1 in 4 to 1 in 5 women experienced completed or attempted rape while at college (The Sexual Victimization of College Women 2000), and 1 in 5 U.S. women have been raped at some time in their lives (CDC 2010).

Most recently the Campus Sexual Assault Study (2007), funded by the National Institute of Justice, reported that 19% or 1 in 5 undergraduate women reported experiencing completed or attempted sexual assault since entering college. When the researchers focused on seniors they found that the number rose to 1 in 4 or 26.3% of college women. 

(The Campus Sexual Assault's definition of sexual assault included both sexual battery [forced touching] and rape.)

However, when researchers conducted the same study at four historically black colleges and universities in fall 2008, they found a lower prevalence of sexual assault. 14.2% or 1 in 7 women reported experiencing attempted or completed sexual assault since entering college. When restricted to seniors, that number rose to 16.1%, or 1 in 6 women. These results suggest that the numbers may vary depending on the type and size of institution surveyed.

Nonetheless, today the 2007 Campus Sexual Assault Study is widely cited as the source of both the 1 in 4 and the 1 in 5 statistic.

Important Context

Controversy still hounds the Sexual Experiences Survey. Skeptics continue to point to the FBI's and
BJS's reports that show a lower incidence of rape.

In fact, in 2012 the FBI's UCR reported 26.7 forcible rapes per 100,000 inhabitants -- nowhere close to 1 in 4. In 2010, the BJS's National Crime Victimization Survey (which has been revised in response to the SES) reported 2.1 completed and attempted rapes and sexual assaults per 1,000 females 12 or older. While much higher than the FBI's numbers, it is nowhere close to 1 in 4.

The numbers aren't entirely comparable. 1 in 4 is a measure of the prevalence of sexual assault: how many women have experienced sexual assault while at college. The BJS and FBI measure the incidence of sexual assault: how many occurrences there are each year.

And of course, as we've seen, these numbers are affected by what's included in the definition of sexual assault and how the questions are asked.

Nonetheless, the 1 in 4 statistic provides an important context for campus safety and advocacy efforts. Even critics of this statistic acknowledge that rape is vastly under reported. The Sexual Experiences Survey and other similar studies highlight an important problem facing efforts to fight sexual assault on college campuses.

It isn't just about statistics. It's about educating students so they can protect themselves and each other.

Works Cited

Gilbert, Neil. (1992) "Realities and Mythologies of Rape," Society, 4, 356-362.

Kirkpatrick, C. and Kanin, E. (1957) "Male Sex Aggression on a University Campus," American Sociological Review, 22, 52-58.

Koss, M.P. (1985) "The Hidden Rape Victim: Personality, Attitudnal, and Situational Characteristics," Pyschology of Women Quarterly, 9, 193-212.

Koss, M.P., Gidycz, C.A., Wisniewski, N. (1987) "The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students," Journal of Consulting and Clinical Psychology, 55, 162-170.

Standards of Proof

In a typical "he-said-she-said" case of sexual assault, he says it was consensual sex, and she says it was rape. These cases are usually decided on the accused's and victim's credibility, and the standard of proof used to reach a decision may tip the scales, as illustrated by a University of Montana (UM) case.

During its investigation of UM for Title IX compliance, the U.S. Department of Education (ED) reviewed a student conduct case in which the lower "preponderance of evidence" standard of proof was applied in the initial proceeding and the accused student was found guilty of sexual assault. After the student appealed, a higher "clear and convincing evidence" standard was applied and the decision was reversed.

The Department of Education has in fact established "preponderance of evidence" as the standard schools must use in cases involving sexual assault. As clarified in its April 2011 Dear Colleague Letter, "in 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)."

Unfortunately, the ED has not provided any explanation of the different evidentiary standards. This post will define the standards of proof and look at how those standards apply in the decision-making process.

Three Judicial Standards

Three different standards are used in courts of law. Generally, each of the three judicial standards of proof¹ requires a different level of confidence in the facts supporting a decision:

• beyond a reasonable doubt requires at least 95% confidence that the facts support a guilty verdict
• clear and convincing requires at least 70-75% confidence that the facts support the decision
• preponderance of evidence requires at least 50.1% confidence that the facts support the decision

In reality, the decision-making process is not as precise as these percentages indicate, but they are one of the yardsticks used to measure the fairness of a decision. The different standards reflect the cost of a wrong decision, measured by the harm caused not only to the accused who is wrongfully convicted or the party that suffers financial harm in a civil suit, but to the legitimacy of the judicial system as a whole.²

The "beyond a reasonable doubt" standard of proof used in criminal cases greatly reduces the risk of convicting the wrong person and reflects the high value of personal liberty to society.³  The 18th Century English jurist William Blackstone explained it this way: "It is better that ten guilty persons escape, than that one innocent suffer."⁴  This standard is fundamentally fair and stops short of imposing the impossible burden of having no doubt that the accused is guilty.

The intermediate standard of clear and convincing proof requires a "high probability" or "reasonable certainty" that the weight of evidence favors the decision. It is applied in civil cases involving more than "mere loss of money," such as fraud or other quasi-criminal conduct, deportation, and permanent termination of parental rights.⁵

It is also the standard applied in involuntary commitment proceedings involving mentally ill persons. In Addington v. Texas, the U.S. Supreme Court concluded that, "[g]iven the lack of certainty and the fallibility of psychiatric diagnosis, there is a serious question as to whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous."⁶

The preponderance standard is the lowest of the three judicial standards of proof and requires that the weight of evidence makes it more likely than not that the decision is correct. This is the standard used in civil litigation that primarily involves a claim for money. Because the risk of harm involves dollars not loss of liberty society places a lower value on the risk of a wrong decision, which is shared equally by both parties.

As the ED confirmed in the UM "blueprint," preponderance of evidence is also the standard required in disciplinary proceedings involving sexual misconduct where the accused faces sanctions ranging from a verbal warning to expulsion from school, as well as a damaged reputation.

A fourth standard of proof, "substantial evidence," is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"⁷ Strictly speaking, this standard only requires a "substantial" amount of evidence to support a decision. It does not require weighing all of the evidence and deciding which way the scale tips.

The "substantial evidence" standard is applied in disciplinary proceedings involving academic misconduct. In Missouri v. Horowitz, the U.S. Supreme Court found a student's failure to meet academic standards "calls for far less stringent procedural requirements," in terms of notice and hearing, than a student conduct violation.⁸

The Fourth Standard

While the ED requires the preponderance standard for Title IX compliance, the U.S. Supreme Court has not squarely answered the question of which standard of proof is constitutionally required in student disciplinary proceedings involving sexual assault. And lower federal courts have not clearly answered this question.

For example, in Smyth v. Lubbers,⁹ a federal court reviewing the suspension of a state university student for possession of marijuana concluded that the substantial evidence standard was not adequate under the circumstances of that case because a "conviction for 'possession of narcotic drugs' in violation of state criminal laws and/or College regulations is plainly an extremely serious attack upon a person's good name and reputation." The court also pointed out that a one-term suspension from school "is a harsher punishment than he was likely to receive from either a state court ... or a federal court, for a first-time offense of simple possession of marijuana."

Under these circumstances, the court found that "any standard lower than a 'preponderance of evidence' would have the effect of requiring the accused to prove his innocence" because the substantial evidence standard only requires that a (substantial) quantity of evidence support the decision. Instead, the court concluded a "constitutionally adequate" standard of proof in that case could not be lower than the preponderance of evidence standard, but the court didn't specify the appropriate standard.

On the other hand, in Gomes v. Univ. of Maine System,¹⁰ another federal court refused to overturn the university's decision to suspend two public university students after they were found guilty of sexual assault even though the university's decision was based on substantial evidence. The court found the disciplinary proceeding, while "not ideal," was fundamentally fair. The court explained the tension between these two principles:

A university is not a court of law, and it is neither practical nor desirable it be one. Yet, a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing. In weighing this tension, the law seeks the middle ground.

The middle ground was described as "whether, in the particular case, the individual has had an opportunity to answer, explain, and defend, and not whether the hearing mirrored a common law criminal trial." Neither the Court nor the litigants questioned the substantial evidence standard used in that case.

Title IX Compliance Standard

Even when school officials know what standard of proof to apply, they may not understand how to apply it. Going back to the UM case we discussed at the beginning of this post, the official handling the appeal said he found the accused and complainant both credible. He also said he viewed it as "a case of differing perceptions and interpretations of the events in question." It turns out that the deciding factor was that some of the complainant's statements began with "I think" or "I don't think." The official interpreted this as a "hesitant and equivocal response" and concluded that the complainant's credibility did not meet the higher standard of proof.

The ED found that UM's handling of that case on appeal showed an "incomplete understanding" of how to assess credibility, victim responses, force and consent. Therefore, UM officials needed "more training on how to evaluate evidence and the appropriate evidentiary standard to assess it."

Interestingly, the U.S. Supreme Court expressed doubt about whether the different standards of proof actually affect outcomes or simply provide a way to measure the value of what's at stake:

Indeed, the ultimate truth as to how the standards of proof affect decision making may well be unknowable, given that factfinding is a process shared by countless thousands of individuals throughout the country. We probably can assume no more than that the difference between a preponderance of the evidence and proof beyond a reasonable doubt probably is better understood than either of them in relation to the intermediate standard of clear and convincing evidence. Nonetheless, even if the particular standard-of-proof catchwords do not always make a great difference in a particular case, adopting a standard of proof "is more than an empty semantic exercise."¹¹

It has also been suggested that school officials deciding sexual assault cases may "unwittingly require clear and convincing evidence" regardless of the appropriate standard because of the serious consequences to the accused.¹² What we're left with are two possibilities: either the different decisions in the UM case were the result of applying different standards of proof, or one UM official simply believed what she said and the other official believed what he said.

How to evaluate victim credibility is a critical part of the disciplinary process. Brain research has provided insight into trauma victims' behaviors and responses that helps explain why their credibility is often met with skepticism. In later posts, we'll look further into this and other issues that provide a deeper understanding of the complicated nature of student disciplinary proceedings involving sexual misconduct.

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<sup>1. A corollary of the standard of proof is the burden of proof, which is placed on the party who filed a lawsuit or the prosecutor who brought criminal charges to present evidence that establishes the facts required to prove a civil claim or criminal charge in a court of law. Once evidence is presented, a decision is made by applying one of the three judicial standards of proof.
2. U.S. Supreme Court Justice Harlan explained that establishing a standard of proof reflects the social costs we are willing to pay for making the wrong decision, and noted that erroneous decisions are inevitable: "First, in a judicial proceeding in which there is a dispute about the facts of some earlier event … all the factfinder can acquire is a belief of what probably happened ... In this regard, a standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. .... A second proposition ... is that the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions. In re Winship (USSCt 1970) 397 U.S. 358, 370.
3. In re Winship, 397 U.S. 370; Woodby v. Immigration and Naturalization Service (USSCt 1966) 385 U.S. 276, 285.
4. 4 William Blackstone, Commentaries *358.
5. Addington v. Texas (USSCt 1979) 441 U.S. 418, 431.
6. Id. at 428.
7. Universal Camera Corp. v. NLRB (USSCt 1951) 340 U.S. 474, 477.
8. Missouri v. Horowitz (USSCt 1978) 435 U.S. 78, 86.
9. In Smyth v. Lubbers (W.D. Mich. 1975) 398 F. Supp. 777, the court found that the narcotics violation was much more serious than "spiking the punch at an after-school meeting." However, the court did not rule on what standard of proof should be applied but only suggested that the "clear and convincing" standard may be required.
10. Gomes v. Univ. of Maine System (D.Maine 2005) 365 F.Supp.2d 6.
11. Addington v. Texas at 424-425, citing Tippett v. State of Maryland (4th Cir. 1971) 436 F.2d 1153, 1166.
12. Note, "Preponderance of the Evidence and Student-on-Student Sexual Assault." Boston College Law Review Vol. 53:1613, 1649 (2012).</sup>