An editorial exploring the preponderance burden of proof in a college sex crimes case:
Apparently while living together and sleeping in the same bed, the woman awakes to find him doing something to her... He denies it was anything nonconsensual. Grand jury refuses to indict. School proceeds with expulsion. The editorialist gets a copy of the audio recording...
The most striking quality of the 99-minute proceeding is its abject lack of professionalism. Imagine a courtroom with a jury and witnesses, but no judge or lawyers. Mr. Strange and his accuser had lawyers present—the only people in the room with legal training—but they were forbidden to speak except to identify themselves at the outset.
Presiding was an Auburn librarian, Tim Dodge, the committee's chairman. The other members were two students, a staffer from the College of Liberal Arts and a fisheries professor from the Agriculture College. Mr. Dodge was confused and hesitant throughout. At one point he got lost and admitted: "I can't find the script here." On multiple occasions an unidentified voice—Mr. Strange believes it is Mr. Frye—can be heard on the recording whispering stage directions to Mr. Dodge.
The absence of a judge to control the proceedings left Mr. Dodge anxious for authoritative guidance. It was provided by the two Auburn administrators the accuser called as witnesses. First up was Susan McCallister, an associate director with the campus police who doubles as a "safe-harbor advocate," a concierge for purported sex-crime victims. "Any kind of services that they need access to, we provide a doorway," she explained. Such services include counseling, "academic accommodations" and help in filing police reports.
At the hearing, Ms. McCallister proclaimed the accuser "very credible" and attested to the belief that Mr. Strange was "a potential threat to [the accuser's] safety." But Ms. McCallister disavowed knowledge even of the accuser's version of events. "As a safe-harbor advocate, I really don't need to know a lot of details, and so I didn't ask her to go into great detail," Ms. McCallister said. "I don't really want survivors to have to tell their story over and over again."
Ms. McCallister had referred the accuser to Kelley Taylor, the university's sex-discrimination enforcer and the accuser's second witness. Ms. Taylor also described the accuser as "credible" and added that she found the allegation "very compelling."
Mr. Dodge asked Ms. Taylor to describe "typical behaviors" of "somebody who may have undergone a sexual assault." She listed three. First, "they frequently cry." Second, "their storytelling is sometimes disjointed, sometimes not." Third, "there's often a lot of emotion inserted into the story that is about being very upset or in disbelief or unsure what to do next, petrified."
The university flaunted its contempt for the defendant's right to confront his accuser. According to Mr. Strange, a curtain was hung in the hearing room to shield her from his view. And although the panelists were permitted to question witnesses, there was no cross-examination.
With criminal charges pending, Mr. Strange chose not to testify at the university proceeding. Auburn bylaws stipulate that "failure of the student [charged with an offense] to make a statement or to answer any or all questions shall not be considered in the determinate on [sic] of guilt or innocence." Yet Mr. Dodge and the other panelists raised no objection when the accuser, in her closing statement, emphasized that Mr. Strange "never talked about the facts of this case."
Although that statement seems improper, it was consistent with the logic of the proceeding. The preponderance-of-evidence standard enfeebles the right to remain silent. In a she-said-he-said case, the adversaries start on equal footing, so that some shred of additional evidence is necessary to convict. But when it's she-said-he-kept-silent, she begins with an overwhelming evidentiary advantage. In a federal civil lawsuit, which uses the same standard, jurors are permitted to draw adverse inferences from a defendant's refusal to testify.
Can't make this stuff up.