After a night of drinking, a UW-Madison student was sexually assaulted in a campus dorm room. She didn’t recall much about the evening, but she remembered vomiting in the dorm’s trash can.
The student reported the assault to the university’s Office of Compliance, which then investigated the incident. Investigators spoke to the alleged assailant’s roommate, who had noticed the vomit the next morning. The roommate said the reported assailant had told him the young woman “may have spit up.”
Under current campus standards of sexual assault, this was enough for administrators
But now, some on campus are worried that President Donald Trump’s administration may change standards for college sexual assault cases, making the reporting process more difficult for some survivors.
Currently, when UW-Madison administrators examine a case of sexual assault, they weigh evidence against
“Preponderance of evidence means it's more likely than not that the incident occurred,” Schmidt said. “A tip of the scale that one side is more credible than others … some people say 50 percent and a feather.”
According to Schmidt, there is no prescribed type or amount of evidence investigators need in order to find the accused party responsible. She said sometimes a student may provide a Sexual Assault Nurse Examiner, the names of friends they told after the assault or saved text messages that could make one side more credible.
However, there isn’t always a factor that tips the scale.
“You have to look at
David Blom, UW-Madison’s Title IX coordinator, handles all sexual assault reports made to the university. If a survivor wants to proceed to an investigation after the initial report, Blom will reach out to a contractor and begin a co-investigation.
The contract investigator, usually a retired police officer, then
“We do typically have something, even if it's just ‘I woke up and told my roommate I have blood in my underwear and I didn't know what happened,’” Schmidt said. “There’s usually something, but it's not a smoking gun, it’s not a ‘gotcha.’”
The compiled report is then given to each party so they have a chance to refute any statements before it is passed on to Schmidt’s office for decision. The investigator and two members of Schmidt’s office must decide if preponderance is met before a nonacademic misconduct hearing panel decides the level of punishment: probation, suspension or expulsion.
Sometimes there simply isn't enough information to find a defendant responsible, and Schmidt said those are
“Those are the hard ones for us. We don't think people are coming forward and lying about it, we just also know that without the information we in good faith can't go forward,” Schmidt said. “It doesn't mean we don't believe them, it just means we don't have the information.”
In 2016, UW-Madison rendered responsible verdicts in six of 15 cases that proceeded to an investigation, and since 2011, the school’s overall rate is approximately 50 percent.
However, this rate may decrease sharply if national standards change.
Up until a few years ago, many college campuses used the “clear and convincing evidence” standard to determine responsibility in sexual assault cases. This standard requires 75 percent certainty of the accused party’s guilt, as opposed to the “50 percent and a feather” required under the preponderance standard.
However, in 2011 the Department of Education began a push to get universities to switch to the weaker preponderance standard, as part of an effort to increase rates of sexual assault reporting on campuses. Under a federal mandate, colleges risked losing federal funding if they did not comply with the national guidelines.
UW-Madison had already switched to the preponderance standard in 2009. The university was “trying to do the right thing before it was even dictated,” Schmidt said.
But critics of the weaker standard argue that “the right thing” denies alleged assailants their right to due process. For example, members of the law faculties at Harvard,
They were concerned a lower standard would lead to false responsible verdicts that would unduly damage the alleged assailant’s standing.
“A low standard of proof is inappropriate in situations involving damage to one's reputation," the letter reads. “Free speech and due process on campus are now imperiled.”
Trump’s appointment of Betsy DeVos as Secretary of Education has given opponents of the preponderance standard hope for a return to old policies. When asked in her confirmation hearing if she would uphold Obama administration’s guidelines for determining responsibility, DeVos said “it would be premature” to make that commitment.
The Trump administration’s next steps regarding campus sexual assault standards are unclear, but Schmidt said the Obama administration’s shift away from the “clear and convincing” standard has helped her office “come a long way” in bringing sexual assailants to justice.
"I've been so happy that we finally got that support on a national level, for us to be able to do what we've always known is right,” Schmidt said. "And it's sometimes hard to convince people when it's not a federal mandate that it's right."
