From the Daily: Evidence is essential


Published October 11, 2011

The University’s Statement of Student Rights and Responsibilities, issued by the Office of Student Conflict Resolution, is responsible for addressing issues of stalking, sexual assault, hazing and inappropriate behavior among students. However, a recent amendment to the Statement that lowers the burden of proof for accusations of sexual misconduct may actually threaten the rights of students. The interim policy recently put into place by the University is not a proper change and may lead to students being wrongly accused of sexual misconduct.

The amendment could, in certain situations, admit hearsay evidence in cases of sexual harassment, which means students could more easily be implicated in sexual misconduct. The current policy is an interim mandate and it needs to be removed immediately. If the University wanted to change the policy regarding sexual misconduct accusations, it should have done so by first seeking proper approval from the Senate Advisory Committee on University Affairs, the lead faculty governing body, and the Michigan Student Assembly — the two bodies that must approve amendments to the student code. Moving forward, the University should return to its previous policy written in the code.

Last week, Suellyn Scarnecchia, the University’s vice president and general counsel, and E. Royster Harper, vice president for student affairs, announced the interim procedure that will be implemented to comply with the U.S. Department of Education’s Title IX recommendations. The old procedure required accusers to present “clear and convincing evidence” before an investigation into alleged sexual misconduct. The guideline meant that a defendant would be held responsible if it was “highly probable or reasonably certain that the sexual harassment occurred.”
Now, the interim procedure requires only a preponderance of evidence, in which officials only need to determine that “it is more likely than not that sexual harassment or violence occurred.”

The policy's main flaw is that individuals bringing forth allegations of sexual misconduct only need to persuade OSCR that “it is more likely than not” that misconduct occurred. The ambiguity of the new policy could lead to unfair interpretation of a situation based on questionable evidence. The consequences for a student found guilty of misconduct range from a formal reprimand to a suspension or expulsion from the University.

In December 2009, SACUA recommended MSA amend the student code and apply the “preponderance of evidence” standard to the entire Statement, rather than just the sexual misconduct policy. After initially backing the recommendation, MSA eventually withdrew its support because the lower standard of evidence applied to a too broad range of offenses, and MSA felt some of the offenses necessitated a more rigid burden of proof.

It’s strange that the University selected only issues of sexual misconduct for the implementation of this new policy. If University officials truly wish to change the standard of evidence required to bring forth allegations of misconduct — which isn't advisable — they should apply this change to all issues discussed in the SSRR.

The University should work to educate students on dealing with issues of sexual misconduct if they occur, rather than imposing the interim policy. Students should be told about methods of gathering evidence for reporting a claim, who to speak to if an incident occurs and what resources are available to them to ensure the process is handled properly.

While sexual misconduct should never be taken lightly, the University has a responsibility to protect both the accuser and the accused until an impartial judgment has been reached. The University should remove this interim policy and revert back to its “clear and convincing” standard of evidence guideline.