UCLA law professor Eugene Volokh writes in defense of colleges having a lower standard of proof:
“If we think there’s a 66% chance that the defendant is a rapist, that’s not enough to imprison him, but it is enough to decide that our campus is better off without him”? That’s probably about right, ...I strongly disagree with this reasoning, and I post it here to show what we are up against.
The main problem with this approach, I think, is that it gives malicious complainants a great deal of power to badly harm classmates just by accusing them. A swearing match between two people, with no corroborating physical evidence or testimony from impartial witnesses, will often not lead to a conviction under a beyond-a-reasonable-doubt standard (though sometimes it does, and not just in sex crime cases). But it often would lead to a finding of guilt under a more-likely-than-not standard, especially given most adjudicators’ plausible assumption that the accused has more of a motive to lie in denying guilt than the accuser does in asserting guilt. This means that if even a few people are willing to falsely accuse someone, this could lead to a good deal of harm.
Yet while the risk of such false accusations is serious, so is the risk of false denials of real guilt. If someone who is “merely” 66% likely to be a rapist is allowed to stay on campus, you’re exposing the rapist’s classmates to a very serious danger.
Suppose it becomes known that in a he-said-she-said dispute with no corroborating evidence, the accuser will prevail because she is seen as having less incentive to lie. Also suppose that the authorities are more likely to take extreme action if the charge is more serious. What is going to happen?
A lot of false accusations, of course.
By way of analogy, suppose the state passed a law t hat because insurance claims were valid about half the time, the insurance companies should quit investigating them and pay claims at 50 cents on the dollar. The predictable consequence would be that people would make a lot more claims, and they would ask for twice what they really want.
Following Prof. Volokh's reasoning, if a man were 5% likely to be guilty of murder, wouldn't you want him kicked off campus? Sure, but it only takes one lunatic to make an accusation to create that sort of likelihood of guilt. A much better plan is to turn the accusation over to the police and DA for criminal prosecution. Bad as they are, they are much better than college dean acting behind closed doors.
In the family court, a woman often makes an unverified accusation of domestic violence or child abuse, in an attempt to gain child custody and support payments. The judge sometimes reasons that while the charges are probably false, the possibility that they might be true requires him to take drastic preventative action.
I believe this judicial reasoning to be mistaken. If the charges are really so serious, then they should be turned over for criminal prosecution. If they are not so serious, then the family court does not need to bother with them. By the family court taking the charges seriously, it creates horrible incentives.
Volokh has done a lot of good work, such as sticking up for Dan Brewinton's free speech when no one else would. He leans libertarian in his politics. He is not a feminist. If he cannot be convinced of the folly of these bad policies, then I am pessimistic about reversing them.