Our beneficent government, through its Department of Education’s Office of Civil Rights “sent a letter to colleges nationwide on April 4, 2011, mandating policy changes in the way schools handle sexual assault complaints, including a lowering of the burden of proof from ‘clear and convincing’ evidence to a ‘preponderance’ of evidence. Not surprisingly, there has been a marked increase in women coming forward with such complaints.”
The preponderance of evidence criterion is asinine and harmful and bound to lead to grief. Here’s why.
Suppose a woman, Miss W, instead of going to the police, shows up at one of her university’s various Offices Of Indignation1 & Diversity and complains she was “sexually assaulted” by Mr X, a fellow student. By means of a lengthy and secretive process, Mr X is called eventually to deny the claim. He does so.
Incidentally, we may as well inject here the advice that if celibacy outside marriage were promoted at colleges, while the success rate of this program would never reach 100%, any rate above 0% solves for its dedicated individuals the sorts of problems discussed below.
Anyway, ignoring all other details, here is what we have: Miss W says Mr X did it, and Mr X denies. Using only that evidence and none other, there is to the neutral observer a 50-50 chance Mr X did the deed. Fifty-fifty does not a preponderance make, which is any amount over 50%. But since we start at 50% given she-said-he-said, it takes only the merest sliver of additional evidence to push the probability beyond 50% and into preponderance.
What might that evidence be? Anything, really. A campus Diversity Tzar might add to Miss W’s claim, “Miss W almost certainly wouldn’t have made the charge if it weren’t true”, which brings the totality of guilt probability to “almost certainly” (we cannot derive a number). Or the Tzar might say, “Most men charged with this crime are guilty”, which brings the guilt probability to “nearly certain”—as long as we supply the obvious tacit premises like “Mr X is a man and is charged with this crime.”
But this is going too far, and, depending on the university, our Tzar knows she might not be able to get away with such blanket statements. Instead she might use as evidence, “Miss W was crying, and victims of this crime often or always cry”, or “Miss W told another person about Mr X’s crime, which makes it more likely she was telling me the truth as telling more than one person, if her story is a lie, would be to compound a lie.”
Now none of these are good pieces of evidence; indeed, they are circumstantial to the highest degree. But. They are not completely irrelevant premises, either. As long as we can squeeze the weest, closest-to-epsilon additional probability from them, they are enough to push the initial 50% to something greater than 50%.
And that is all we need to crush Mr X, for we have reached a preponderance of evidence. Of course, Mr X may counter or cancel this evidence with his own protestations, or even physical proof that he was nowhere near the scene in question, or that Miss W drunk-texted him first and asked for the services which she later claimed were “assault.” But the Tzar, having all the woes of all feminine society on her mind, is free to ignore any or all of all this.
Mr X, guilty or innocent, is therefore easy to “prove” guilty using this slight standard. He can then be punished in whatever way thought appropriate by the university.
That brings up another question. Suppose you gather all the relevant evidence and decide that the chance of the zombie apocalypse is just under 50%. Or again, given reliable premises you calculate the probability that the woman who just winked at you from across the bar does not have Ebola is 49.999%. You therefore decide that since the preponderance of evidence is against both propositions, you needn’t protect yourself.
You have it. The probability of 50% is in no ways the probability to use for all yes-no decisions. Decisions have consequences and these must be taken into account. Should we wreck a man when the evidence against him amounts only to 50.001%? Too, if we use in every situation the preponderance criterion, the number of mistakes made will be great.
This is why in actual criminal courts, where the standards of evidence are in play and the accused is allowed to confront his accuser and so on, the standard is guilt beyond reasonable doubt, a sane and sober principle.
1The indignation quip came from this.