Scrap the “Dear Colleague” letter: Real world evidence is showing it isn’t helping rape victims — and the potential harm in wrongly punishing an innocent student far outweighs its benefits

December 5, 2013

The Department of Education claims that “1 in 5 women are victims of completed or attempted sexual assault while in college.” This assertion is highly controversial, but if true, it means that for a student female population of, say, 17,686, more than 3,500 will be victimized by sexual assault or attempted sexual assault in the course of their college careers. Over a four year college career that works out to an astounding 875 victims every single year.

We used that number as an example because that’s roughly the female student population at the University of Maryland.

Does anyone seriously think that 875 female students at the University of Maryland are the victims of sexual assault or attempted sexual assault every single year? Heather MacDonald once wrote that, if true, this would be “a crime wave of unprecedented proportions.”

The problem, we are told, is that hardly any college women bother to report sex offenses committed against them. To combat underreporting, the Department of Education handed down the much criticized 2011 “Dear Colleague” letter. Among other controversial mandates, that letter required schools to find students accused of sexual-related offenses guilty if the evidence showed they did it by a mere preponderance of the evidence — slightly more than a 50% chance

Sex offenses needed to “treated differently” than every other infraction committed on campus because of underreporting. The reduced standard of proof of the “Dear Colleague” letter, we were told, was going to help solve the underreporting problem. See, e.g., here and here and here and here.

The problem with mandating a lower standard of proof is that it makes it easier to punish not just the guilty but the innocent as well. The Department of Education didn’t bother to consider the innocent. Before the “Dear Colleague” letter, many schools employed a higher standard of proof (e.g., clear and convincing evidence) in order to find accused students guilty of these offenses. The only reason for having a higher standards of proof is to protect innocent students from being found guilty of an offense they did not commit. The Department of Education swept over the rights of the wrongly accused like a high speed rail. A student at the University of Maryland summed up the prevailing thinking: insuring that perpetrators of sexual assault are punished is sufficiently important that it is “worth the risk” of punishing an innocent student for an offense he did not commit.

So what happens if it turns out that the new rule does not help stem underreporting? What happens when a principal justification for making it easier to punish the innocent turns out not to be true?

We noted above that if the Department of Education is correct, the University of Maryland has 875 cases of sexual assault or attempted sexual assault every year.

With the preponderance of the evidence standard now firmly in place, how many of those 875 women came forward to report their victimization last year?

Andrea Goodwin, director of the Office of Student Conduct at the University of Maryland, said that during the past academic year, her office did not process a single sexual harassment or sexual assault complaint. That means, of course, that no cases of sexual misconduct have progressed all the way to hearings.

We knew that the “Dear Colleague” letter would not be a magic elixir for underreporting. The Department of Education should have asked Scott Berkowitz, President & Founder of the Rape, Abuse, & Incest National Network (RAINN), undeniably an expert on the subject. His testimony about this subject in a 2010 Senate hearing in 2010 revealed that any hopes that it would be were unwarranted. Amanda Hess summarized it here:

More victims may not be reporting their rapes, but the reasoning has changed over the past few decades. “A generation ago,” the reasons were things like, “fear of not being believed; fear of being interrogated about and blamed for their own behavior, and what they were wearing. In short, they feared that they would be the one on trial.”
Today, “the perception of many victims has evolved.” Now they don’t report for these reasons: “they don’t want their loved ones to know what happened; they’re ashamed themselves; they just want to put it all behind them.” Today, “fear and shame of how the police wil [sic] treat them” has moved down on the list of reasons victims provide for not officially reporting the crime.
But at other schools, sexual assaults are being reported. Is the Dear Colleague letter helping victims there? We reported earlier this year that at the University of Michigan, of the 38 sexual assault violations reported to the school in the course of a year, six students were found responsible and seven students were cleared of wrongdoing. In 19 cases, officials didn’t have enough information to move forward. Thus, even with a preponderance of the evidence standard, fewer than 19 percent of reported claims could be proven.

We are now acquiring real world experience showing that the Department of Education’s mandate to reduce the standard of proof in sexual assault cases isn’t doing anything to help victims. The rationales used to justify the draconian reduction in the standard of proof are proving to be unfounded. If, indeed, the schools referenced above are indicative of a nation trend — and we are fairly certain they are — then it is clear that the potential harm in reducing the standard of proof to the wrongly accused far outweighs any conceivable benefits to rape victims. For that reason alone, the “Dear Colleague” letter needs to be scrapped.