U football players' sexual conduct tests burdens of proof

The very public sexual assault investigations into some members of the University of Minnesota football team last month showed the clear differences between campus and criminal investigations.

Right now, when students report a sexual assault, they can choose to report to college Title IX investigators, police, or both. Minnesota data show students are more likely to engage the campus system over the criminal justice system.

"For students, this is their learning environment. Some of them live in intensely residential campuses, where they're having to see the same students day in and day out," said Carl Crosby Lehmann, general counsel for St. Olaf College in Northfield, Minn. "To not have the ability to address the situation and potentially remove somebody who has engaged in egregious conduct seems unfathomable."

Lehmann was hired after a very public criticism of St. Olaf's sexual assault investigation policy last year. He was part of a workgroup that led to changes in the school's policy on how sexual assault investigations are handled.

The campus system has a lower standard of evidence. Some say that lower standard, combined with pressure on campuses to respond to reports of sexual assault, leads to investigations that tend to side with the accuser.

Some believe changes that put more of the investigative work on the criminal system could be on the way.

The Republican National Committee platform, approved last summer, said only a judge and jury were capable of determining guilt or innocence in campus and derided internal reviews, saying justice should come in a courtroom "not a faculty lounge."

"We think that criminal matters should be handed over to police, or anything that may be criminal," said Cynthia Garrett, co-president of the group Families Advocating for Campus Equality, which represents students accused of sexual misconduct on campuses.

Garrett says if someone violates the student code of conduct, but not criminal law, then schools can do their own investigations.

She and others also take issue with what they say is a lack of due process.

Schools don't always hold hearings and some don't allow students on either side to bring in attorneys who can speak on their behalf, said Samantha Harris, director of policy research for the Foundation for Individual Rights in Education, or FIRE.

"The fairer the procedure, the more reliable the outcome," she said. "And a reliable outcome benefits everyone. Because it doesn't do the victim any good if the school finds a student responsible using a flawed procedure and then a court of law overturns that law on procedural grounds."

Decisions in school investigations are often made by panels that include administrators, faculty and students. These investigations use a standard of the preponderance of evidence, which means if a violation is more likely to have happened than not, they can find a party responsible, Garrett said.

"When you give a barely trained adjudicator a decision to make basically on 50.01 percent, it's like a hunch. Right? 'I think she's telling the truth,'" she said. "It's not a clear, 'She's clearly telling the truth and he's not.' It's 'Eh, it looks like she's telling the truth.' And to ruin a life on that basis is not the American way."

Others fear a pendulum swing toward criminal law in these cases will take away a system in which some victims of sexual assault feel they have the best chance of finding justice.

Higher standards of evidence make sense in criminal cases because a person's liberty is at stake, said Susan Gaertner, a former Ramsey County attorney.

"That's not a dynamic that translates to these other things," she said. "You don't have an entitlement to go to a particular campus. And so to have, if you will, lesser standards of proof, lesser systems in place to protect either side, makes sense."