Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard

Montana Law Review, Vol. 78, p. 109, 2017

U. of Pittsburgh Legal Studies Research Paper No. 2017-14

46 Pages Posted: 22 May 2017

See all articles by Deborah L. Brake

Deborah L. Brake

University of Pittsburgh - School of Law

Date Written: May 19, 2017


In the heated controversy over the obligations Title IX places on colleges and universities to respond to sexual assault, no issue has been more contentious than the standard of proof used to make findings of responsibility in internal student misconduct processes. In 2011, the Office for Civil Rights (OCR) of the U.S. Department of Education released a “Dear Colleague” letter (DCL) clarifying the obligations imposed on institutions of higher education to use fair and equitable grievances procedures in resolving allegations of sexual assault. Among numerous other requirements, the DCL alerted colleges and universities that it expected them to use the normal civil standard, a preponderance of the evidence (POE), in resolving internal complaints of alleged sexual assault. From the beginning, detractors of the DCL have decried the unfairness of forcing campuses to find students responsible for sexual assault based on a preponderance of the evidence, and the POE remains the singularly most controversial piece of the Title IX framework.

On the surface, the POE is an unlikely focal point in the debate over Title IX’s application to sexual violence. Notwithstanding the emphasis OCR’s critics have placed on the POE, the agency’s 2011 endorsement of the POE largely ratified the status quo. Most educational institutions were already using the POE for sexual misconduct cases well before OCR weighed in. Moreover, it is unclear how much distance separates the POE and its closest competitor, the clear and convincing evidence standard. Although this article defends the POE and argues against ratcheting up the standard to require proof by clear and convincing evidence, it contends that the actual impact of OCR’s endorsement of the POE standard is disproportionate to the pitched debate it has prompted. Understanding why the POE is so contentious requires an examination of the broader debate over Title IX’s application to campus sexual assault.

This article traces the conflict over the POE to two deeper fault lines in the rape culture wars: (1) the battle for empathy between survivors of sexual assault and students wrongly accused of committing it; and (2) disagreement about the appropriate stringency of a disciplinary framework in responding to sexual assault in a campus setting. These undercurrents, more than the merits of the POE itself, are at the heart of the controversy. From this vantage point, the POE is a predictable and perhaps inevitable flashpoint in the rape culture wars. Taking sides on the applicable proof standard requires calibrating the relative interests at stake for both the complainant and respondent, and assessing the probabilities of who is telling the truth. The POE holds the two sides’ relative stakes and competing narratives in equipoise, while a higher proof standard judges one side’s interests and likely credibility to be greater than the other. These competing perspectives on the stakes and credibility of accusers and the accused are at the heart of the controversy over Title IX’s application to sexual assault. After defending the POE, the article considers the objections to what critics perceive as overly harsh and unfair disciplinary measures, and calls for further work on restorative justice as a possible way to bridge the dichotomies at the root of the conflict.

Keywords: Title IX, sexual assault, campus sexual assault, sexual misconduct, sexual violence, Dear Colleague Letter, preponderance of the evidence, rape culture, rape myths, fair and equitable grievance procedure

Suggested Citation

Brake, Deborah L., Fighting the Rape Culture Wars Through the Preponderance of the Evidence Standard (May 19, 2017). Montana Law Review, Vol. 78, p. 109, 2017, U. of Pittsburgh Legal Studies Research Paper No. 2017-14, Available at SSRN:

Deborah L. Brake (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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