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False conviction rate could hit 33 percent if real courts mimicked campus courts

Imagine the howls from activists across the ideological spectrum, from Black Lives Matters to Blue Lives Matter, if research suggested the rate of false convictions was approaching one in three defendants.

Now ask yourself why we aren’t howling about just that trend in campus rape adjudications.

Professors of criminal law and public policy at California universities warn their state in The Washington Post not to adopt the Obama administration’s nonbinding regulatory guidance that tilted campus rape adjudications strongly against accused students.

California is actively considering such legislation, but state lawmakers should consider what codifying the Department of Education’s 2011 “Dear Colleague” letter would mean in practice, say the University of San Francisco’s Lara Bazelon and UCLA’s John Villasenor.

Not only does the federal guidance let schools assign “the same office that oversaw the initial proceeding” to consider appeals – a clear conflict of interest – and deprive accused students a hearing and access to evidence against them, but its mandated evidence standard (preponderance) would never be tolerated in a real court considering “violent felonies”:

Probability models show that low standards of proof risk unacceptable results: If the “preponderance of the evidence” standard were used in the regular criminal-justice system, innocent defendants would face a chance of false conviction as high as 33 percent. There is no reason to believe the error rate is less in an on-campus proceeding; indeed, given that an accused student has far fewer protections than a criminal defendant, it is likely to be higher.

They recommend going back to the “clear and convincing” evidence standard that universities including Princeton used before the government threatened to revoke their federal funding, and otherwise making due process “the core component” of adjudications:

Otherwise, on-campus sexual assault proceedings will continue to be rightly challenged as lacking in fairness and legitimacy.

Read the op-ed.

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