UA Codes and Judicial Committee

From: Edward Strong <ers37@cornell.edu>
Date: Thu, 28 Apr 2011 12:11:32 −0400
To: david.skorton<david.skorton@cornell.edu>
Subject: Campus Code of Conduct: UA resolution and difficulties in process

Mr. President-
I write this personally, not as the vice-Chair of the UA.

You have received a UA approved ammendment to the Campus Code of Conduct- To lower the burden of proof in Sexual Violence and Sexual Harrasement cases from the current standard of “clear and convincing evidence” to the standard of “preponderance of evidence”. Clear and convincing evidence is below the criminal standard of “beyond a reasonable doubt” but more rigorous then the “preponderance of evidence (aka. more-likely-than-not)” standard that is practiced in civil cases.

This UA recommendation was contentious and narrowly passed, I voted against it. Not because I disagree, but because there has not in any manner been sufficient discussion to offer such a recommendation. Changing the burden of evidence is a foundational change to a system of justice. It deserves discussion and it deserves community input through the Codes and Judicial Committee mechanism… which it has not yet received.

As no doubt you are aware, this proposal was originated because Cornell received a “Dear Colleague” memo that said we might be out of compliance with federal law by requiring clear and convincing evidence in sexual violence and sexual assault cases. However, as I read the Code, its difficult to distinguish one burden of proof for some offenses vs. another burden of proof for other offenses… there is not a clear delineation as the Code is written between Sexual Violence and other offenses (in my reading). Indeed, some who attended our UA meeting as guests, were asking the UA to lower the burden of proof to preponderance of evidence [nearly] across to board, to offenses beyond those which might simply bring us into compliance with the law. HOWEVER, it was clear that the UA wanted those discussions to go through the CJC before coming to the UA (to the disappointment of some who would it seems generally wish the standard of proof to be lower).

I write this explanation to ask that you take care in your approval of the UA resolution to amend the Campus Code of Conduct. And please know that while some were advocating for a broader use of the lower standard of proof, the UA’s vote was to narrowly use this standard to Sexual Assault and Sexual Harassment. Everyone agrees we should comply with the law, the debate surrounds what compliance would entail and how the process is done to be sure we comply AND maintain our current Cornell community standards of legal justice. HOWEVER, the code does not appear to me to be written in a manner that would allow that subset distinction. Clearly in an ideal situation this all should go through the CJC and public input but the Counsel’s office and the JA gave the UA an impression of crisis- That the University would face a crisis should the UA not act immediately (there is actually debate if a crisis is really at hand). Thusly, in my opinion a sloppy UA resolution was narrowly passed to avoid this “crisis”.

Please know that the executive committee of the UA has authority to act on behalf of the body while the UA is in recess (as it is now). So should you offer an alternative version of Code Amendments that would bring the university into compliance and assure that the lowest possible burden of proof is narrowly held within Sexual Violence and Sexual Harassment (as the UA vote intended, but is complicated by structure of the Code of Conduct), the executive committee does have the authority to approve such a variation.

The other, broader issues from the Dear Colleague letter, will go through the CJC and I have a feeling the CJC itself will rightly re-examine the Sexual Assault and Sexual Harassment portion as well. It is unfortunate a “crisis” prompted various reasons to bypass the CJC and bring this Code amendment hastily to the UA without proper community input or committee discussion.

Thank you for your efforts and care on this issue. Its a delicate one with strong opinions.

-Ed

Edward R. Strong

Department of Biomedical Sciences
Department of Molecular Biology and Genetics
Field of Genetics and Development
Cornell University
T9007 Vet Research Tower
Ithaca, NY 14853

lab phone: 607.253.3746
mobile phone: 805.453.8602
email: ers37@cornell.edu