Recently the effort of the California legislature to pass SB 976 came to my attention. The efforts of the bill are well intentioned but misguided, reducing a criminal matter to the level of a civil hearing. In a criminal matter the level of proof is far greater as there is much more at stake than in a civil matter. A civil matter simply is a matter of proving that the fault lies with the accused. This is normally based on the more convincing evidence and its probable truth or accuracy and not on the more convincing evidence and its probable truth or accuracy and not on the amount of evidence. You simply have to convince the trier of fact that something happened and not how accurately the evidence collected supports that claim. In criminal matters, testimony is the weakest form of evidence and should be bolstered by physical evidence, ie fingerprints, DNA, foot prints, tire marks.
Preponderance of evidence, therefore, is relegated to civil matters and have no place in criminal procedures. This is why the “beyond a reasonable doubt” standard is necessary in a criminal matter and the accuracy and relevancy of the evidence is weighed and evaluated. SB 976 would take a sexual assault and turn it into a civil action of who is more convincing absent any credible handling and collection of physical evidence.
Let us take the worst case scenario, a non-consensual sexual assault accusation. Normally, in such a case, when an assault is reported, law enforcement would respond and trained investigators would preserve the scene, preserve evidence, seek medical attention for the victim including taking evidence from the victim’s vagina, preserving panties and clothes and any bedding or furnishings that may have the suspect’s semen on it. Why? Because these samples would be sent to a laboratory to determine DNA match to the accused after the accused submitted a DNA sample for comparison.
These cases demand more than “he said she said’ called for in a preponderance of evidence standard. Such evidence has, many times, exonerated a suspect as having no match and that he couldn’t possibly have been the suspect in the assault. Such are the needs called for at the criminal investigation level.
The text of this bill does address this. In paragraph 4 section c, subsection b, subsection 2 the bill calls for knowing the importance of preserving evidence. If one preserves evidence it is for the purpose of collecting it and analyzing it which would be a police function. Nothing in the bill addresses this function and presents legal nightmares of police turning evidentiary reports to a college hearing board. However, since the bill proposes using a “preponderance of evidence” standard to convict this might not be an issue.
The normal defense in a criminal trial would be to impeach the witness by calling into evidence her sexual relations and promiscuity. The DNA sample, if it shows DNA for another male, would only bolster that defense that the accused wasn’t involved in any sexual relations. But that’s if the “ beyond a reasonable doubt standard “is used. With the preponderance of evidence , all she has to do is blame any male so as to protect the guilty party. Or hide her sexual activity.
The preservation of civil liberties shouldn’t stop at the entrance to any college campus. Inside these institutions of learning our highest ideals should be preserved and honored. We should not reduce something as serious as a sexual assault accusation to that of a college committee. Our students deserve more than that. I have my deep concerns of SB976 spreading a wide net and snaring the innocent as well as the guilty. I agree that sexual problems and attacks are prevalent on campus and I applaud colleges for making its personnel aware of the necessity of crime scene preservation and proper handling of on campus sexual assaults. But these hearings belong in a court of law and not in the office of a hearing officer.
