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The Department of Education recently issued new guidelines on campus policies on sexual assault, including a directive that judicial bodies investigating sexual assault allegations employ the “preponderance of the evidence” standard in their deliberations.
“Preponderance of the evidence” is the standard commonly used in resolving civil cases — lawsuits — in the United States. It basically means that the question at hand will be resolved by a determination of which party’s version of events is more likely to be true. (“Beyond a reasonable doubt” is the standard of guilt used in criminal cases in the US, and there are other standards used in other circumstances, too.)
I don’t yet have an opinion on the DOE’s directive, and I think it’s an important question, so I’ve been reading up on it. And I just noticed something really weird.
As I noted above, “preponderance of the evidence” basically means that the judicial body will determine which side of the case, based on the evidence, is more likely to be in the right. If they come down on the side of the complainant, even hesitantly, the defendant is found guilty. It makes no difference, in other words, whether they’re completely convinced or have major doubts — whichever side they think is more likely to be in the right is the side that wins.
A common way of explaining this is to say that preponderance of the evidence means that if even 51% of the evidence presented supports one party, that party gets the decision. It’s an arbitrary number, of course — there’s nothing magical about 51% as opposed to 55% or 50.623% — but it gets the concept across. Whoever has the stronger evidence wins. Period.
So you see the 51% thing a lot. It’s all over the place — the number 51 appears in about a quarter of all web hits for the phrase “preponderance of the evidence.” But occasionally you see other numbers, like 50.1%, or even 50.000001%. And here’s where it gets interesting.
The number 50.1 appears only rarely in Google hits on “preponderance of the evidence” — a few times per thousand. But in pages in which the word “rape” or one of its variants appear as well, 50.1 shows up almost three times as often. You see a similar bump for 50.01, 50.001, etc.
Those numbers aren’t that big. It doesn’t seem to be a complete glitch — the numbers go in the opposite direction when you add “civil law” to the search instead of “rape,” for instance — but the magnitude isn’t huge.
Check out what happens when you substitute “campus sexual assault” for rape, though. The number 50.01 shows up three times as often as you’d expect, and 50.0001 shows up nearly seven times as often. Plug in “Title IX,” the campus sex-discrimination law on which the ruling was based, and 50.0001 shows up more than fifteen times as often as it should.
What does all this mean?
Well, one thing it doesn’t mean is that a campus assault case in which 50.0001% of the evidence supports the complainant is going to result in a conviction. The very concept of “50.0001% of the evidence” is meaningless — the idea that you could quantify the evidence in a sexual assault case to a precision of two parts in a million is absurd.
And that, of course, is why “50.0001%” is a figure of speech that you hardly ever see in discussions of this legal standard. It’s not coherent. It’s not meaningful. It’s not illuminating of the issues at stake.
And that is precisely why it keeps coming up in discussions of Title IX and campus sexual assault. Because “preponderance of the evidence means the side with 50.0001% of the evidence wins” is a lot scarier than “preponderance of the evidence means that the relevant body looks at all the evidence and rules for the party it thinks has the stronger case.”
I wrote this for a friend’s zine when my older daughter, now eight, was a few months old. Father’s day seems like as good a time as any to repost it.
My daughter Casey was born in January, and so far the singing-to-the-kid duties have mostly fallen on me. If I’d thought about it before she was born, I guess I’d have imagined that I’d have sung mostly kids’ songs — some Woody Guthrie, some of the lullabies that my folks sang to me — but it hasn’t worked out that way just yet.
I’m not quite sure how, but William Blake’s “Jerusalem” has wound up in heavy rotation, along with a slowed-down version of “Surfin’ Bird” that really seems to soothe her. If she’s pitching a fit, I usually sing whatever happens to pop into my head, or hum nonsense until it resolves itself into a recognizable melody (that’s how we ended up with the Blake, I think). Usually I don’t worry too much about the lyrics, even if they’re creepy or age-inappropriate — I can’t shelter her from “Psycho Killer” or “Cheap is How I Feel” forever. Not in this house.
There’s one song, though, that I’ve always felt strange singing to her, and it’s one of my (and, as much as one can tell these things, her) favorites — Buddy Holly’s “Well … All Right.”
I’ve loved that song for as long as I can remember. When I was a teenager, the diffidence of a love song with such a title tickled me, and a few years ago I realized that it’s got a dark undercurrent to it that’s really powerful. In Buddy’s rendition, it’s one overwhelmed kid singing to another, but if you imagine someone like Johnny Cash singing it — and singing it now, doing with it what he did with Nine Inch Nails’ “Hurt,” it becomes something weird and slightly sinister.
Well, all right — so I’m being foolish. It’s all right, let people know
About the dreams and wishes you wish, in the night when lights are low.
That’s nasty. It’s great, but it’s nasty. Hence my dilemma. And there are only twelve lines in the whole song — six, if you space them the way I did above — so I can’t do what every cowardly cover artist has ever done, and just skip the bits that make me uncomfortable.
About a month ago, though, something hit me. If you switch a few words around — just convert some ‘I’s and ‘we’s to ‘you’s and ‘your’s and make one or two plurals singular — the whole song changes. The singer steps out of the relationship, and suddenly he’s advising someone about an affair he’s not involved with. He’s an older-and-wiser friend. He’s a trusted counselor. He could even be … a father.
This is where my friend the shrink starts rolling her eyes and smiling indulgently when I tell her the story. The father-daughter relationship is intrinsically a romantic one, in her eyes, one whose great drama comes when the daughter hits puberty and throws dad over for some pimply dork — or worse, a dashing young prince or princess. But Casey’s not even crawling — I don’t have to deal with all that just yet.
What I do want to get started dealing with, though, even now, is sending her the message that she can and should be brave, and fearless, and take risks.
That although folks — maybe even me — are going to tell her she’s wrong and she doesn’t know what she’s doing, and though sometimes we’ll be right, and sometimes it’ll hurt like hell, she should be bold anyway, and love anyway, and believe anyway, and hurt anyway. In the long run it’ll be okay. It’ll be all right.
Well, all right — so you’re going steady. It’s all right, let people say
That that foolish kid can’t be ready for the love that comes her way.
Well, all right. Well, all right. You can live and love with all your might.
Well, all right. Well, all right. Your lifetime love will be all right.
Well, all right — so I’m being foolish. It’s all right, let people know
About the dreams and wishes you wish, in the night when lights are low.
Well, all right. Well, all right. You can live and love with all your might.
Well, all right. Well, all right. Your lifetime love will be all right.
Sweet dreams, Casey.
I keep meaning to post more, and it keeps not happening. I’m teaching a ridiculously compressed summer schedule right now — two full courses in three and a half weeks, which means three hours each, four days a week. So I’m in front of the classroom from nine to noon teaching the first half of world history, and then from noon to three teaching the second half. And then I’m completely exhausted.
And I’m with my kids for a chunk of the afternoon most days, and they’re here with me overnight one night a week and every other weekend, and right now that’s actually two weekends in a row, last weekend and this weekend. (And the Mermaid Parade is next weekend, so last weekend we were consumed with making costumes.) So there’s this one bubble early on Friday afternoons when I’ve got energy and time, and that’s exactly the moment when blogging on education and activism issues seems least productive.
More to come when it comes. In the meantime, hope you’re using your time and energy as whole-heartedly as I am.
Stockton, California resident Kenneth Wright says a team of federal agents sent by the Department of Education busted down his door without warning yesterday morning, handcuffing him in the back of a cop car for more than six hours. And, he says, it was all because his estranged wife defaulted on her student loans.
The feds, meanwhile, deny that the raid was conducted over a student loan default, but confirm that the squad was sent by the DOE. The department’s Office of the Inspector General, a spokesperson says, “conducts about 30-35 search warrants a year on issues such as bribery, fraud, and embezzlement of federal student aid funds.”
Jesse Cheng announced on Monday that he would be stepping down as Student Regent of the University of California system. The announcement came just days before the final Regents meeting of his term.
The student conduct office at UC Irvine, Cheng’s home campus, ruled in March that Cheng had sexually assaulted a former girlfriend the previous fall. He appealed the finding, stepping down only after his appeal was rejected. (Cheng had admitted to sexual assault in an email to the woman, but later claimed that the confession was false, and written under pressure from his accuser. He was arrested in connection with the incident a few weeks after it allegedly occurred, but released without charges.)
In an era in which the University of California has pursued student activists with the aggressive use of both criminal and campus judicial sanctions, the mild treatment of Cheng — who, though he now denies any wrongdoing, both admitted to and was found guilty of sexual assault — stands out. In particular, it contrasts dramatically with how the university and local prosecutors have treated the “Irvine 11,” a group of students who are currently facing trial for allegedly disrupting a campus speech by the Israeli ambassador to the US.
I’ll admit that I’m ambivalent about the charges against Jesse Cheng. I know Jesse, and I’d like to believe that he’s not capable of what he’s been accused of. But whatever my personal thoughts on his case, the fact is that he was found by a student conduct board to have committed a sexual assault, and given his confession, it’s difficult to argue that the board’s conclusion was egregiously in error.
That Cheng received probation, and was allowed to keep his seat on the UC Regents until he himself chose to give it up, while the Irvine 11 saw the student organization to which they belong suspended and now each face the possibility of six months in jail? That’s not right. That’s not proportionate. That’s not legitimate.
And that disproportion, that illegitimacy, casts the whole University of California judicial system, as well as the UC’s relationship with law enforcement, into question.
Update | Read this post from Reclaim UC for more on the university’s recent history of bungling sexual assault charges. Seriously. Go read it.
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