Campus sexual assaults have come back into the spotlight recently thanks to Secretary of Education Betsy DeVos’ push to reverse Obama-era guidelines for how colleges and universities handle sexual assault allegations. The guideline that may have the most impact involves the standard of proof used in college administrative hearings in sexual assault cases. Currently, most universities are using “preponderance of the evidence,” or “more likely than not,” as the standard. The new guidelines would change the standard to “clear and convincing evidence,” which, although lower than “beyond any reasonable doubt,” is a much higher standard than “preponderance of the evidence.”

What is the Standard of Proof on SC College Campuses?

Currently, most colleges and universities use the standard of preponderance of the evidence which was recommended by the previous administration’s Department of Education. A preponderance of the evidence means “more likely than not,” or 51%, and it is the standard of proof used in most civil cases such as auto accidents or other personal injury claims. University of South Carolina (USC), for example, currently lists preponderance of the evidence as the standard used in sexual assault hearings:

The Office of Student Conduct uses the standard of a “preponderance of the evidence”, which means that the evidence/information presented must demonstrate that the charged student is more likely than not in violation of the Student Code of Conduct charge(s).

Under the new Department of Education guidelines, this standard would be changed to “clear and convincing evidence.” Although clear and convincing evidence is not as high as the burden required in criminal cases, “beyond any reasonable doubt,” it does add some additional protection for the rights of the accused in college campus sexual assault cases.To put this into context, clear and convincing evidence is the standard of proof that is often used in family court. For example, if the government wants to permanently take your children away from you, they must prove by clear and convincing evidence that you are an unfit parent.

What Protections Do Accused Students Have on College Campuses in SC?

Not many. Because it is not criminal court, an accused student does not get the benefit of the constitutional protections they would have had if they were charged with a crime. For the most part, college disciplinary hearings are unfair, heavily tilted towards the accuser, and offer very little protection to the accused. Consider the “rights” afforded to an accused student in USC sexual assault proceedings:

• The right to be notified of the charges against them with sufficient time to prepare for a hearing.
• The right to be notified of the date, time, and place of the hearing at least three days in advance.
• The right to know the nature and source of the information presented and to review documents, exhibits, and witness list upon request. There is no right to receive this information in advance of the hearing, apparently.
• The right to present information on one’s behalf. Not to have an attorney present your information, even if the college has a trained attorney presenting the information against you.
• The right not to appear at the hearing.
• The right to remain silent although the hearing authority can draw negative inferences from your silence.
• The right to “present questions” for the witnesses although the hearing officer does not have to ask those questions. No right to confrontation (cross-examination), apparently.
• The right to be accompanied by an advisor. Just to be clear, the University’s website adds “Note: Advisers are not permitted to participate directly in the hearing process or to speak for the charged student(s) or student organization(s).” There is no right to the effective assistance of counsel, even if there is a University attorney on the other side.

These hearings are designed to strongly favor accusers over the accused. When the consequences can involve expulsion from school and inability to enroll in another comparable school, these hearings can impact a person’s life and livelihood. They can result in prison, sex offender registry, and lifetime GPS monitoring when the person is charged in criminal court based on the University’s findings. We can recognize that sexual assault is a problem on college campuses and tackle that problem while acknowledging that: 1) Every allegation is not true; and 2) An untrue allegation has very serious effects on the person who was accused, even if they are ultimately found to be innocent. Changing the standard of proof to clear and convincing evidence is a good first step towards ensuring that the process is fair to all involved.

Were you Charged with Sexual Assault on Campus?

Whether you are facing an administrative hearing at Coastal Carolina University or criminal charges in General Sessions Court, our criminal defense lawyers at Coastal Law, LLC, can help. Call us at (843) 488-5000 or fill out our online form to set up a free, confidential consultation with no strings attached.