While the goal of reducing the number of sexual assaults on campuses is laudable, this is not true of all the proposed methods of achieving this goal. In addition to the practical concerns regarding the effectiveness of methods and their legality, there is also the concern about the morality of these methods.
During a House hearing, Colorado Rep. Jared Polis expressed his support for a “reasonable likelihood” standard in regards to sexual assault. Polis said that “If I was running [a private university], I might say, ‘Well, you know even if there’s a 20 to 30 percent chance that it happened, I would want to remove this individual.”
Most public universities currently follow the preponderance of evidence standard. Under this standard, a student is to be regarded as guilty of sexual assault if the evidence is interpreted as showing there is a greater than 50 percent chance the student committed assault. It is important to note that this standard applies to the proceedings of the university. If the student is involved in a criminal trial, this is handled by the state and the usual legal standard of proof beyond a reasonable doubt applies.
While the preponderance of evidence standard seems rather weak, Polis seems to regard the bar as being too high. He said that “It seems like we ought to provide more of a legal framework then that allows a reasonable likelihood standard or a preponderance of evidence standard.” Obviously enough, the standard would need to specify the degree of confidence in the evidence.
Polis seems to regard a 10-20 (or perhaps as high as 30) percent confidence level as adequate for finding a student guilty of sexual assault: “I mean, if there’s 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.” This standard seems problematic in many ways.
Laying aside the ethics of the standard for a moment, Polis seems to be advocating what could be regarded as justice by fallacy. In philosophy, a fallacy is an argument whose premises fail to provide an adequate degree of support for the conclusion. In the case of inductive reasoning, an argument is assessed in terms of how likely it is that the conclusion is true on the assumption that the premises are true. A good inductive argument is known as a strong argument while a poor one is known as a weak argument. As I tell my students, it is unreasonable and irrational to accept the conclusion of a weak inductive argument on the basis of that argument—to do so would be to accept a fallacy as good reasoning. While there is not an exact number for what counts as strong (strength admits of degrees), the minimum would obviously be a 51% chance that the conclusion is true, assuming the evidence is true—this is, in fact, the current standard.
If the standard for a strong argument for the guilt of a student is set at 10-20%, that would mean that students who are almost certainly innocent (the evidence shows that there is a 90% chance of innocence) are as likely to be found guilty as students who are almost certainly guilty (the evidence shows there is a 90% chance of guilt). Even if the matter had no serious consequences, this standard would be absurd from the standpoint of logic. However, there are serious consequences.
A student found guilty of sexual assault by a university is typically punished with expulsion, which will typically have a serious impact on the student’s life. The student can try to transfer to another school, but will be marked with being expelled for sexual assault. Even if the student is able to attend another school, the expulsion will be a considerable setback not only in the student’s academic career, but also in life.
Polis does have a response to this, noting that “We’re not talking depriving them of life and liberty, we’re talking about their transfer to another university, for crying out loud.” This view does create something of a dilemma. If the punishment for sexual assault is, as Polis seems to believe, merely transfer to another university, then there are at least two problems. The first is that such an allegedly mild punishment would seem to have very little deterrent value. The second is that the 10-20% who actually committed sexual assault would simply be transferred to a new campus were they could continue to engage in sexual assault.
But, if the punishment is actually serious (and serious enough to serve as a deterrent), then there is the moral concern about inflicting a serious punishment with such a low threshold of guilt. At the very least justice would require that the accused be shown to be more likely to be guilty than not. As such, both ethics and logic shows that the preponderance of evidence standard is the weakest acceptable standard (and there are arguments against accepting even this standard).