Chapter 8 introduces the concept of standards of evidence. An evidence standard is used to assess a person’s guilt or innocence and varies according to the institution and possible punishment at stake for the accused. Before the Dear Colleague Letter, all universities used different, self-determined evidence standards when judging rape cases. The letter is important, first, because it requires all universities to use the same “preponderance of evidence” standard. If a college finds a “preponderance of evidence” it simply means it is “more likely than not” that a student is guilty. Second, the letter is important because, for many institutions, this is an easier standard of evidence to fulfill. Yes, more alleged rapists will be found guilty, but Krakauer’s argument is that the punishment they face—expulsion from school, as opposed to imprisonment—is correspondingly light. Calvin Smith’s story shows how the “preponderance of evidence” standard is applied. The University of Montana’s investigation is speedy and efficient compared with the investigation and prosecution of rapes by the Missoula Police, but Smith still has a right to appeal the University’s decision.
The rules of University Court, like the standard of evidence used in it, are quite different from the rules in U.S. criminal courts. For the most part, universities determine their own court policies, and the University of Montana requires students to advocate for themselves. This is why no lawyers are permitted to speak. Kirsten Pabst’s decision to testify for Calvin Smith, an alleged rapist, in his University Court hearing is borderline unethical. Part of her job as prosecutor for the Missoula Attorney’s Office is to maintain professional objectivity. By testifying for Smith, Pabst implies she thinks Smith is innocent. Finding insufficient evidence to prosecute a case in U.S. criminal courts, however, is not the same as determining that a person did not commit a crime. The University Court demonstrates this when, despite Pabst’s testimony, it finds Smith guilty of rape and upholds Dean Couture’s decision to expel him. The problem for Kelly and other rape victims on college campuses is that, even in the rare case when a rapist is expelled, expulsion feels like insufficient punishment for rape.