Editorial: New Standard of Proof Better, But Still Needs Work

On April 11, the University lowered the Standard of Proof in cases of alleged sexual harassment, stalking, dating violence, and sexual assault. The change lowers the Standard from “beyond reasonable doubt” to “a preponderance of the evidence.” The University also granted alleged victims the right to appeal a ruling, a right that was previously granted only to the accused.

For the majority of the student body, the debate over lowering the Standard of Proof has been relatively quiet. This may be the result of a combination of a number of factors – apathy, situational distance, the low profile of the topic, taboos surrounding discussion of sexual assault, the tangled and seemingly legalistic nature of the issue, or any number of other reasons.

Whatever the reason, the fact is that — apart from a small minority of interested activist — we do not really discuss issues of sexual harassment and violence at Stanford. And unfortunately, when we do discuss sexual harassment, the issue is often poorly framed, and presented as an adversarial issue with binary and directly opposed options. Many students are under the mistaken impression that in discussing issues of sexual harassment and violence, one must either support women or support men. But that dichotomy is a false one, which may be making the topic inaccessible to the broader student population, and thus leaving it open for co-opting by interest groups who seek to steer discourse in a single direction.

Sexual assault can be difficult to prove with physical for a number of reasons – if a condom is used, there may be no presence of semen; there is not always a presence of physical bruising internally or externally; and there may be differing claims of consent and non-consent, especially where alcohol or drugs are involved. Sexual harassment and stalking also can be difficult to prove, especially when done verbally or clandestinely.

But the difficulty of proving sexual assault is a double-edged sword – what manifests itself as difficulty in successfully seeking justice in the vast majority of cases can also manifest itself as ease of successfully making false accusations in a few. When we fail to establish what, exactly, is “enough proof,” there is too much room for error that may result in a wrongfully dismissed accusation or an undeserved punishment. In either situation, there is a victim – either someone whose right to personal safety was violated or someone who was wrongfully punished.

The goal is not to deter real victims from accusing an attacker, but rather to properly assign punishment to those individuals who deserve it. The barrier to entry into the process of making an accusation should not be so artificially high that it deters actual victims from pursuing justice, but at the same time, it should not be so low that it allows even a few students to make false claims. The new “preponderance of evidence” Standard of Proof seems to be low enough to allow real victims room to seek justice, but not too low so as to facilitate false accusations, particularly because of the social and cultural stigmas which still surround accusations of sexual assault and harassment.

This Editorial Board believes that the old Standard of Proof was too high, because the difficulty of proving sexual assault and harassment has likely served as a significant barrier to entry to students who have had their individual right to personal safety violated by other students. As a private institution, it is within Stanford’s scope to take grant or withhold access to university privileges independent of legal authorities. It need not use the legal standard of “beyond reasonable doubt” to take action, largely because the action that it takes does not deprive individuals of some natural right, such as the right to liberty.

But the university does operate under a contractual system governed by rules, and it would be wrong (albeit not illegal) for it to punish individuals who have not actually broken those rules. In order to promote clarity, efficiency, and transparency about the University’s mechanisms for investigating sexual assault and harassment, Judicial Affairs should act to eliminate ambiguity about what constitutes a “preponderance of evidence.” A true improvement of the Standard of Proof would have Judicial Affairs outlining how it treats and weights certain types of evidence across all accusations, and ensure, through critical evaluation, that those weights are appropriate.

While Judicial Affairs continues to examine its procedures, we should keep in mind that this issue is not about a pro-woman versus pro-man dichotomy, or even a pro-accuser versus pro-accused dichotomy. Rather, it is a debate that that holds one standard to be of supreme importance – the truth. The discourse that we need to be having is one that is entirely pro-truth, a discourse that takes into consideration the legitimate arguments and understandings of those who may disagree on how best to seek and reach the truth about accusations of sexual violence and harassment.

The truth is what we should be seeking, and that central goal seems to be missing from the discourse surrounding sexual harassment and violence at Stanford. Opening the appeal process to both the accused and the accuser is a great way to promote this, for it gives alleged victims the same opportunity to contest an outcome that the accused individuals have. And while the new Standard of Proof is a step forward, concrete action by Judicial Affairs to clarify and explain its meaning will empower both victims and the accused in the process of reaching the truth.

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