VAWA Negotiators Consider Preponderance of Evidence Standard

The Foundation for Individual Rights in Education (FIRE) claims that Violence Against Women Act (VAWA) negotiating rulemaking participants are considering adopting rules that violate the intent of the law passed by Congress.

“Several negotiators have been explicit about their desire to insert language requiring that campus judiciaries use the preponderance of the evidence standard when deciding sexual harassment and sexual assault cases,” said FIRE Legislative and Policy Director Joe Cohn.

“This effort to circumvent congressional intent is galling-not only because doing so is clearly beyond the negotiators’ authority under the Negotiated Rulemaking Act, but also because Congress explicitly rejected requiring the ‘preponderance’ standard when passing VAWA reauthorization.”

The organization says the preponderance of evidence standard was intentionally removed from VAWA before it was passed. Additionally, language requiring colleges to “provide a prompt and equitable investigation and resolution” was replaced with a requirement that proceedings be “prompt, fair, and impartial.”

FIRE also claims rulemakers are proposing an “affirmative consent” requirement, which is also not part of VAWA.

“Such ‘affirmative consent’ requirements create a situation in which an individual can be found guilty of sexual assault by being unable to prove he or she obtained explicit verbal consent to every sexual activity throughout a sexual encounter,” the organization said in a press release.

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