Less evidence will now be required for the Office of Student Conduct to find accused students responsible for sexual harassment or assault.
After receiving a set of guidelines known as a “Dear Colleague” letter from the United States Department of Education’s Office of Civil Rights in April 2011, the OSC has made several revisions to its sexual misconduct policy in Penn’s Student Code of Conduct.
The changes were announced in today’s edition of the Penn Almanac.
Previously, in order to find a student responsible for sexual harassment or assault, the OSC applied a standard of “clear and convincing evidence” — meaning that it must be highly probable that an alleged incident occurred.
Based on the OCR’s guidelines, however, the OSC will now employ a lower standard known as “preponderance of the evidence” — which requires proof that the accused student was more likely than not responsible for an alleged incident.
“In every forum where civil rights issues are decided, the standard of proof is a preponderance of the evidence,” OSC Director Susan Herron said. “The charter changes just bring the civil rights case within a school disciplinary system into the same framework as all other cases.”
She added that because Penn is an educational system rather than a court of law, it has more flexibility in its disciplinary processes.
According to Herron, the guidance in the Dear Colleague letter reflects the OCR’s concerns about the increasing incidence of sexual assault on college campuses.
“Students have a right to attend school in an environment free of harassment,” she said.
In addition, the Code of Conduct will now require sexual violence investigations to be completed within 60 days — the length of time that the OSC believes investigations can “reasonably” take. Since there is “a lot at stake” in sexual harassment cases, “we want to make sure we get it right,” Herron said.
Political Science professor Rogers Smith explained that it is common to find a lesser standard of proof used in civil procedures or at academic institutions as opposed to the criminal justice system, where “proof beyond a reasonable doubt” is typically required.
The new standard — which Smith said is akin to being 51 percent sure of the accused person’s responsibility — will “change the outcomes” of cases at Penn, he added.
“It will mean that judgments that a person is guilty of sexual harassment will be easier to achieve,” he explained.
According to Smith, the preponderance of evidence standard is common in other areas of law, such as medical procedures that involve removing a patient from life support. Under this standard, courts permit testimony from parents or spouses who say what the patient would have wanted.
Herron emphasized that despite the change in policy, the rights of the accused student will still be protected.
“We’d never bring forth a case that hasn’t met the threshold of required evidence,” she said.
She added that students always have a right to challenge the OSC’s findings by going to a hearing in front of a panel of three students and two faculty members, as well as appealing the panel’s decision to a disciplinary appellate officer.
Organizations aimed at preventing sexual violence, such as Abuse and Sexual Assault Prevention and the Penn Women’s Center, said they are pleased with the change in the OSC charter.
“It’s important that we have a policy in place that suggests to the campus community that we believe what survivors say,” ASAP Chair and College senior Joseph Lawless said.
Penn Women’s Center Director Felicity Paxton agreed.
“This lower standard of evidence better supports victim’s rights,” she said. “[It] will hopefully encourage more victims of sexual violence to pursue disciplinary action following an act of assault or harassment.”
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