Big Question: What is Justice?

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. <;.

“Dear Colleague Letter” (2011)

hooks, bell. “Seduced by Violence No More.” Outlaw Culture: Resisting Representations. New York: Routledge, 1994. 109-113.

2 thoughts on “Big Question: What is Justice?

  1. tikavya

    Although this post makes numerous good points regarding rape and victim blaming culture, I disagree with the proposition that the preponderance standard is a move towards gaining justice for rape victims. In fact, I believe that it is a step backward. Under the preponderance standard, rape cases are ruled only marginally on fact and evidence. They are based more on a judge’s conceived notions of “truthfulness” – a practice that feels too subjective for me as judgments are based off the individual judge’s preconceptions. This is potentially harmful to both the plaintiff and the accused. On the behalf of the defendant, this leaves the gate wide open for false accusations. Although you argue that there is no incentive for a person to cry rape, it does happen. Although, as Ann on feminist writes, that in comparison to actual rapes, the problem of false accusations is a relatively minor one, they still occur, such as in the Hofstra Gang Rape case, the Duke Lacrosse Rape, or even the more recent one at Ohio University. Just because they happen with less frequency, does not mean that they should not be considered or taken into account when handling rape cases.

    The preponderance standard can be potentially harmful to the plaintiff as well. Under this standard, judgments of rape are far more likely to be considered on a purely black and white standard when in reality rapes can take on many different shades. . For example, what “truthfulness” can the judge ascertain if the victim was drunk when he or she gave consent? What if his/her accused rapist was also drunk? Did he/she rape his/her rapist as well? Is it mutual rape? How is the law supposed to deal with this? Then issues of statuary rape arise – drunk out of his/her mind, did he/she realize that his/her partner was unable to give consent? I liken the difference between this and rape where the accused rapist doesn’t care if the victim gives his/her consent to the difference between manslaughter and murder. Under the preponderance standard, judges are not given incentive to examine every facet of a rape case. The truth is that our legal system isn’t equipped to deal with this well, and the preponderance standard does not help.

    I understand that you would like to see justice done for the survivors of rape, just as I would. But, before rape has been proved beyond reasonable doubt, I would not go so far as to accept every accusation of rape. After all, to paraphrase Arthur Miller, the accusers were not born yesterday “as pure as God’s fingers” and neither are the accused rapists. In order for justice to be done, all the evidence and arguments must be considered, and both plaintiff and defendant are owed the right to due process of law in order to better ascertain the truth.


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