Star Chamber in London, England, taken from an 1836 drawing.
Sexual assault is so awful that it ought to be treated as the crime that it is. That means it shouldn’t be treated the same way Judge Wapner might have decided a small-claims dispute on The People’s Court.
Yet that’s what the Massachusetts Senate apparently wants on college campuses. This past week, the Senate breezily approved a bill (Senate Bill 2191) that provides a “preponderance of the evidence” standard for college tribunals adjudicating claims of sexual misconduct made by students.
“Preponderance of the evidence” means what likely happened. It has sometimes been called a 51-percent-certainty standard.
It’s a far cry from “beyond a reasonable doubt,” which is the legal standard for convicting a defendant of a crime. In math terms, legal observers put that at about 98 percent certainty.
The Obama Administration implemented the preponderance-of-the-evidence standard in 2011, with disastrous results.
One example: A Brandeis case in 2014 where an accuser discovered victimhood after attending two “sexual assault training” sessions on campus months after a consensual relationship had ended. The accused wasn’t allowed to confront the accuser or even know the details of the allegations until after the disciplinary adjudication against the accused had already occurred. The accused lost an internship and job opportunities as a result of the case, which has never been pursued in a court of law. A federal judge handling the accused’s lawsuit against the school later called Brandeis’s way of handling sexual misconduct claims “essentially a secret and inquisitorial process.”
Another one: The Yale basketball player expelled from school in 2016 due to a dubious claim of nonconsensual sex by a former hook-up partner more than a year after the fact, with apparently zero corroborating evidence.
In both cases, the known facts appear to flunk even a preponderance-of-the-evidence standard. But they would be absurd if the standard were beyond-a-reasonable-doubt.
And that’s the point. If a college student commits a sexual assault, the case ought to be pursued diligently in a court of law and a college ought to expel such a student once sufficient facts have been established. That applies to jump-out-of-the-bushes attacks, date rape, and any other kind of sexual assault.
But in a murky world of hurt feelings and uncorroborated spilled-milk allegations, flimsy anonymous accusations should be directed to psychological counselors and spiritual advisers, not to college campus star chambers.
The California legislature passed legislation similar to the Massachusetts Senate bill earlier this year, but Governor Jerry Brown – yes, that one – vetoed it last month. In his veto message, he noted that “thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault – well-intentioned as they are – have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”
K.C. Johnson, a history professor and expert on campus sexual assault cases, told New Boston Post senior reporter Evan Lips that the Massachusetts Senate bill “would be the most due-process-unfriendly” law in the country.
Current U.S. Secretary of Education Betsy Devos correctly jettisoned this preponderance-of-the-evidence federal standard in September. The Massachusetts House of Representatives should do the same, before this already-failed policy becomes law here.
Star Chamber in London, England, taken from an 1836 drawing. 
