By Scott Tibbs, September 15, 2014
Here are a few additional thoughts on due process in campus sexual assault investigations.
The fact that the Obama regime has ordered universities to abandon the "beyond a reasonable doubt" (BARD) standard in favor of a "preponderance of the evidence" (POTE) standard is irrelevant, and Indiana University is not breaking the law by refusing to obey. The highest legal authority in the land is the Constitution, not federal law or administrative rules dreamed up by federal government bureaucrats.
As a state institution, Indiana University is morally and legally obligated to follow the Constitution instead of arbitrary federal regulations imposed by the Obama regime. And that's what this is - an administrative regulation, not federal law. Congress has not passed a law mandating the POTE standard. Even if they did, Indiana University would be morally and legally obligated to disobey that law because it is unconstitutional. The Constitution requires due process and the BARD standard is a critical component of due process.
University disciplinary hearings are the wrong place for rape allegations to be tried, anyway. The worst a university can do to someone found guilty of rape is to expel him, but has no authority to punish him beyond that. A rapist, who can be proven guilty beyond a reasonable doubt, should be behind bars. Having this handled by an academic disciplinary panel instead of the criminal justice system still leaves him free to victimize more people.
Some have said the POTE standard is necessary for victims to get "justice." Was it "justice" for the Central Park Five to spend years in prison for a crime they did not commit? Was it "justice" for the many people exonerated by the Innocence Project to spend years in prison for crimes they did not commit?
A critical thing to remember here is that all of those people spent time behind bars for crimes they did not commit under a "beyond a reasonable doubt" standard, with significantly more due process protections than you will find in a university disciplinary hearing, where the accused often does not even have the right to an attorney, examine witnesses, etc.
You can bet that there will be many more fraudulent convictions under the Obama regime's illegal "preponderance of the evidence" standard for university sexual assault investigations. It is hardly "justice" to destroy someone's academic career with a weighted system designed by activists to get convictions rather than seek the truth.
Neither I nor anyone else is saying rapists should not be punished. In my opinion, the Supreme Court was wrong to disallow the death penalty for rape. (Especially the rape of a child.) The concern here is that Obama's POTE standard ignores due process for the purpose of gaming the system to get more convictions. Putting a finger on the scale to get the desired result is not "justice." It is a political agenda, and one that has no place in a public institution like IU.