University sexual misconduct policies should use a 'lower burden of proof': author Jon Krakauer

The province has introduced legislation requiring universities and colleges in B.C. to have sexual misconduct policies — and these institutions should use a "lower burden of proof" in order to hold to account those responsible for sexual assault and to keep other students safe, says a U.S. writer.

Jon Krakauer investigated how the University of Montana as well as police and other authorities in that city handled a number of sexual assault cases in his book Missoula: Rape and the Justice System in a College Town.

Here in B.C., Simon Fraser University has been the latest university to grapple with alleged sexual assaults involving students, after the University of B.C. and University of Victoria faced accusations they had mishandled reports of attacks.

Under new legislation recently introduced by the provincial government, universities across B.C. have until May of 2017 to come up with a strategic plan to deal with sexual assault.

• Sexual misconduct on B.C. campuses subject of proposed new law
• Students, union want SFU to respond to sex assault allegations
• Sexual assault policies lacking at most Canadian universities, say students
• UBC sex assault complaints: Watch the fifth estate's investigation School of Secrets

Process should differ from court: Krakauer

Krakauer, who is also the author of Into the Wild and Into Thin Air, told On the Coast that post-secondary institutions should have a different process than that of the criminal justice system.

"There will be due process, but the burden of proof for finding someone responsible of sexual misconduct in a university should not be beyond a reasonable doubt, which is what it is in American courts at least," said Krakauer.

"It should be: more likely than not."

Krakauer said the criminal justice system "bends over the backwards to protect the rights of the accused" because it is designed to protect against sending innocent people to prison.

'A lower burden of proof'

He said the outcome would be different — the student responsible would be expelled, not sent to prison — so the process can be different.

"The criminal justice system favours the guilty. The deck is stacked, especially in rape cases, against the victim. So universities need a whole different process," he said.

"You can't put anyone in prison if they are found responsible for sexual assault on campus. They don't become a sexual offender. They don't have to be on a sexual offender registry, so if you keep that in mind, you're allowed to use a lower burden of proof."

Krakauer said that post-secondary institutions should have a university tribunal of students, faculty and staff involved in the proceeding — and said the accused person should be allowed to present evidence and have a list of witnesses who could be called.

He said that lawyers could be present but shouldn't participate in the proceeding directly, to avoid what occurs in criminal proceedings, where "the defense attorneys always put the victim on trial."

Encouraging victims to come forward

"You want a process that is open and transparent and encourages victims to come forward," he said.

That, he said, requires proceedings that everyone understands are mostly administrative and are held in a "nonlegal atmosphere."

"They can hide identities of both the accuser and the accused during the process, but they need to explain what happened during the process — how is the accused person found innocent or found guilty," he said.

Krakauer said it is imperative that the process is one that encourages people to come forward and not be "shamed into silence."

"Rapists' most effective weapon is silencing the victims …. and using the shame of society, using these rape myths, these prejudices to keep victims from reporting. The goal of universities should be to keep their campuses safe. Schools have the responsibility to remove these rapists from their midst."

With files from CBC's On the Coast

To hear the full story listen to the audio labelled: University sexual misconduct policies should use a 'lower burden of proof': author Jon Krakauer