A proposed change to the College of William and Mary’s evidence standard for disciplinary proceedings has raised student concerns about wrongful convictions.
College President Taylor Reveley postponed the approval of the revision, which would lower the standard of proof required to substantiate an allegation regarding alcohol misuse, violence and sexual assault from “clear and convincing evidence” to “preponderance of the evidence,” pending further review. The change would alter the standard from requiring the evidence against the accused to be found highly probable, to requiring evidence to be found more likely true than not.
“President Reveley assured us that this was something the administration was going to evaluate and that there will be student input in the process,” Student Assembly President Chrissy Scott ’11 said.
The alteration was one of 13 recommended by the Office of Student Affairs in its annual review of the Student Handbook, which includes the Student Code of Conduct. The examination usually takes place during the spring semester, but because Reveley asked for a comprehensive study and rewrite last spring, the process was not completed until this summer. Vice President for Student Affairs Ginger Ambler ’88 Ph.D. ’06 sent out the proposed changes and rationales to the student body in a July 6 e-mail requesting feedback. The other 12 changes have since been approved.
The lowering of the standard of evidence received the most student comments, much of it in opposition to the change. The rationale provided for the proposed shift cited the federal Office for Civil Rights’ 2003 letter to Georgetown University, which instructed that the “clear and convincing” standard was inappropriate for allegations of sexual assault and thus could violate Title IX of the Civil Rights Act.
According to Associate Dean of Students and Director of Student Conduct Dave Gilbert, a study of 14 of the College’s peer institutions found that only two — the University of Virginia and the University of North Carolina-Chapel Hill — use a standard other than preponderance.
Sen. Mike Young ’11 opposed the change, and met with Reveley and Gilbert to discuss the issue.
“Whenever you lower the standard of evidence, the chances of a wrongful conviction go up,” Young said. “All we’re doing is asking ourselves to make a mistake. A wrongful conviction isn’t just bad for the convicted — someone on the Student Conduct Council being in that position is not fair.”
Young also objected to the fact that the Student Handbook changes were sent out over the summer when students might be less likely to respond with feedback, and said he plans to introduce a bill to the SA recommending that the review process take place during the school year.
“If we want to have a true campus-wide conversation about this, it needs to happen when students are around,” he said.
Gilbert did not share Young’s fears about an increase in wrongful convictions, noting that civil courts use the standard of preponderance and that, according to the Student Handbook, students accused of misconduct have many protective rights.
“Every standard of proof is necessarily a balance,” Gilbert said. “We need a system that serves all members of the community. You can see that [a standard of] absolute certainty would never serve the student who said he was assaulted. The student that was attacked has many rights as the accused.”
The Office of Civil Rights’ letter noted that the shift to a preponderance standard can better serve victims of sexual assault, who often can gather little conclusive evidence against their attackers. Young said he felt that it was not appropriate to cite one type of misconduct as a rationale for applying a lowered evidence standard for all violations.
“I think that’s not the right way to have the discussion — to say it’s for one thing and then apply it to the whole system,” he said.
Gilbert said he believed that the change was fitting and that it will suit the disciplinary system.
“I expected students would be concerned about the change, but I would submit to you that if you study other places that had preponderance, it didn’t create a crisis,” he said.
For now, the College’s standard of evidence remains “clear and convincing.” According to Scott, there are plans to hold campus-wide discussions about the proposed alteration.
“We just have to make sure students who [feel] strong either way come out so they can get their voices heard,” she said.