The 2011 Dear Colleague Letter requires that federally-assisted educational institutions adhere to certain regulations in order to remain compliant with Title IX of the Education Amendments of 1972. The Letter mandates that schools use the “preponderance of the evidence” standard to adjudicate cases of sexual violence. The preponderance standard is the lowest standard of evidence by which a judge can make a decision about a case; a judge must deem that the truth of a plaintiff’s contention is more likely than unlikely in order to rule in the plaintiff’s favor.
Last spring, the “Community of the Wrongly Accused” posted an article online arguing that the use of the preponderance standard is damaging to the human dignity of defendants, as it favors the assumption that “exonerations and gray claims” about instances of sexual violence constitute cases of “actual rapes.”
This post shrouds victim-blaming language in the rhetoric of justice, when justice and rape culture are in fact mutually exclusive. There is justice when one understands that the stigma, confusion and social pressure that accompany sexual violence give victims no incentive to falsely report (or report, period). There is justice when one trusts the word of survivors without challenging them to prove “beyond a reasonable doubt” that their rape was an “actual rape.” The use of the preponderance standard is a move towards justice, towards belief in survivors of sexual violence – a move towards “committing ourselves fully to resisting and eradicating patriarchy” (hooks, 109).
“Community of the Wrongly Accused: At the University of Michigan, Data Is in on the School’s First Year Using the ‘preponderance of the Evidence’ Standard for Sexual Assault: For Most Claims, the School Did Not Disbelieve the Accused.” 15 Mar. 2013. <http://www.cotwa.info/2013/03/at-university-of-michigan-data-is-in-on.html>.
“Dear Colleague Letter” (2011) http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf
hooks, bell. “Seduced by Violence No More.” Outlaw Culture: Resisting Representations. New York: Routledge, 1994. 109-113.