Tuesday, June 14, 2011

UPDATE: Preponderance of Evidence VS Clear and Convincing. What is better???

Many times we have discussed the level of evidence needed, depending on the court system. Below is a very important article posted by Father's and Family.

Also, for reference, from our online NFPCAR/FPLS legal terms page, here is "preponderance of the evidence">>> link: http://nfpcar.org/Legal/legalprint.htm#Preponderance_of_evidence

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Link: http://www.fathersandfamilies.org/enews/cv/enews-20111116.html
Victory�In Face of Opposition, Leahy Scraps VAWA Draft Provision Which Lowers Evidence Standards
False allegations of abuse are common in family court, and have been used to separate many fathers (and some mothers) from their children. The reasons for this problem are many, but one of the biggest is the low evidence standard for upholding abuse claims.
The common evidence standard for domestic violence restraining orders is "preponderance of the evidence," often conceptualized as a mere 51/49% likelihood of guilt. By contrast, when someone seeks a regular civil restraining order, the more stringent and appropriate "clear and convincing" evidence standard is usually used.
In practice, this means that when neighbors Bob and Jim have a dispute over Bob's dog eating Jim's flowers, and Jim allegedly threatens to throw rocks at Bob's dog, the courts demand that Bob provide solid evidence to support his claims of Jim's threats. By stark contrast, if Bob's wife decides to divorce him and seeks to throw him out of his house on a restraining order and cut him off from his kids, she has a much lower burden of proof on her claims.
Fathers and Families wants abused women (and men) to be afforded the protection they need. However, we have relentlessly publicized and fought the common problem of false allegations being used as child custody and financial maneuvers in divorce. And one of the key components in this fight is to replace the "preponderance" standard with the "clear and convincing" standard.
VAWA Re-Authorization Sought to Lower Evidence Standards
Recently there have been moves by the Obama administration to lower the evidence standard that universities and colleges use to adjudicate accusations of violence or abuse. According to Hans Bader, Esq.:
Historically, most colleges used a "clear and convincing" evidence standard in student and faculty discipline cases�this due process safeguard has come under attack, most prominently [by]�the head of the U.S. Department of Education's Office for Civil Rights, Russlyn Ali, who has demanded that colleges dilute the presumption of innocence in sexual harassment and assault cases by instead using a "preponderance of the evidence" standard� Now, the Senate draft bill to reauthorize the Violence Against Women Act [by Senator Patrick Leahy (D-VT)] has inexplicably sought to expand the assault on due process. The draft VAWA bill would give OCR the power to set the "standard of proof" not only in harassment and rape cases, but also in other kinds of cases like "domestic violence," "stalking," and inappropriate behavior in dating relationships.
A Firestorm of Protest
Colleges and universities have often victimized innocent male students by validating spurious abuse or assault charges, as Fathers and Families Board Member Robert Franklin, Esq. details here. Franklin explains:
The new standard has been met with a firestorm of protest.  The American Association of University Professors, the National Association of Scholars and the Foundation for Individual Rights in Education all came out against the measure.  Nationwide, some 30 editorials did as well. As it stands, all colleges and universities must now use the lower standard or face the loss of federal funding.  But what's been done by bureaucratic fiat can be undone in the same way.
But Leahy's proposed bill to reauthorize the Violence Against Women Act would have made the lower standard a requirement of federal law, and, had it passed, it would have taken another act of Congress to undo.
The good news is that Leahy has now scrapped these provisions in his VAWA draft in the face of these protests. We thank and congratulate all who were involved in opposing this harmful provision. To learn more, see Franklin's post here and Bader's article here.

Previous Post
Just received this email today and I do have mixed feelings about the proof standards of "Preponderance of Evidence" VS  "Clear and Convincing". Of course changing to "Preponderance of Evidence" by the U.S. Department of Education (DED) is perhaps based on their "Expert Wisdom"???

These two terms are what everyone needs to be very clear on. Here is the definition of "Preponderance of Evidence" with related information>>> http://nfpcar.org/Legal/legalprint.htm#Preponderance_of_evidence

One must remember in the Family situation, children are removed, merely based on the "Preponderance of Evidence. In very un-legal terms this equates to "If it could have happened. It probably did."

However, for TPR to occur, the evidence must be "Clear and Convincing". Not to mention, so many don't realize that court cases for TPR may drag on for an extended period.

Yes, sexual abuse is definitely a concern. However, whether it be at College, In the Home, and/or Any Other Location, so many times the outcome in Court Decisions are based on "He said-She said" evidence.

So, in reality there is no easy solution.. But, personally, I feel changing the level of proof needed, may be a step backwards.

What really is needed are the thoughts expressed in the Template for Family Court:
Of course, this is just my opinion based on my Family Experiences; and many, who I have shared experiences over the last Decade.

So, using an ol' phrase, "You be the Judge" Of, course assuming you are not acting under the "Color of the Law" as so many judges are. Also, none of us are lawyers, and it is your responsibility to research the statutes particular to your concerns, whether you have a lawyer or not. (Related Reading: Lawyer Information)
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eMail received June 14, 2011
Dear Granpa,



In the name of curbing campus sexual assault, the U.S. Department of Education (DED) now requires all colleges that receive federal funding to use the "preponderance of evidence" standard of proof, instead of the long-accepted "clear and convincing" standard. In addition, the DED regulation forbids charged students from cross-examining their accusers.

Seldom does an issue unite the Left and Right into a single chorus of disbelief and scorn. To date, the DED letter has been the focus of over a dozen critical editorials appearing in both the liberal and conservative media. For example:
SAVE is calling on the DED to withdraw its Dear Colleague letter and replace it with a guidance that respects civil rights and due process. And we want you join us. Here's where to file a complaint:

E-mail: You can file a complaint with the Office for Civil Rights, using the following e-mail address: ocr@ed.gov.  

Online: You can also file a complaint with OCR using their complaint form at the following website: http://www.ed.gov/about/offices/list/ocr/complaintintro.html.

Thank you for your help! 

Sincerely,


teri


Stop Abusive and Violent Environments  

Teri Stoddard, Program Director




P.S. Help us grow our efforts....forward this E-lert to a friend!
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May you find Strength in Your Higher Power,
  GranPa Chuck
    Defend Yourself>>