All well and good, but as Bazelon goes on to note, this has led to an unexpected outcome: a greater number of findings of sexual assault, but also relatively minor punishments short of expulsion for those found guilty of rape.

In closing, Bazelon proffers her own opinion on what should be done:

As the incentives shift, and schools try to prove their commitment to combating sexual assault, will they become too quick to find accused students culpable? That’s a legitimate fear. And so (though I’m still thinking this through) here is where I come down at the moment: I think the Department of Education should raise the standard of proof to clear and convincing evidence, to underscore the importance of (relative) certainty. And then universities should stiffen the standard punishment, so that a student who is found responsible for rape (let’s call it what it is) can expect to be expelled (though accused students should be able to argue for exceptions).

Here’s the thing though: if you’re going to raise both the standard of proof and the punishment if found guilty, I think you’re also going to need to shift the adjudication process back towards a more legal set of norms and structures. Civil liability is based on a preponderance of evidence standard, but I’m also rather certain that civil litigators get to cross-examine witnesses (in Massachusetts at least). If severe punishments like expulsion are going to be meted out, there has to be a due process that is fair to the accused and recognizes some kind of Sixth Amendment protections. Or, to put it more plainly, expelling a student from a university without any direct cross-examination of the accuser doesn’t seem like a viable system.

To be fair, Bazelon recognizes the problem here, noting later that, “It still won’t be easy for a university to run a quasi-judicial process that is fair to everyone involved—and that also gives students who feel they’ve been victimized emotional support.” That’s the tradeoff. If you make it easier for rape victims to come forward with a non-adversarial adjudication process, the punishments of the accused will likely fall short of expectations. If you make the punishment fit the crime, then you also have to shift back to a more legalistic set of procedures, which will be more daunting to the accused. I’m not happy about this tradeoff — but it can’t be ignored, and unfortunately I don’t think it can be ameliorated.