This summer, the Foundation for Individual Rights (FIRE) broke a story about a male Stanford student accused of sexual assault. The unnamed student was found guilty after the case was reviewed by Stanford’s Board on Judicial Affairs (BJA). But the student has raised concerns about the fairness of his trial, and FIRE has subsequently questioned the BJA’s training procedures in general.
FIRE reported on their website that the student was found guilty by Stanford “solely because [the university] determined that his partner was intoxicated (as was he).” Consent, according to Stanford’s sexual assault policy, cannot be given if a person is “intoxicated by drugs and/or alcohol.”
William Creeley, writing for FIRE, states about Stanford’s policy: “Stanford’s policy paints with a broad brush: All alcoholic beverages are intoxicants, leaving all individuals who consume them—even one of them—technically intoxicated.”
Asked to clarify this policy, Stanford’s Assistant Dean of Student Life, Jamie Pontius-Hogan, stated in an email, “Even if both parties are intoxicated, the actor must gain consent.” Though she seemed to qualify the extent of “intoxication,” saying, “If the person being acted upon lacks the capacity of providing consent due to extreme intoxication, that is considered sexual assault.”
“Admittedly, parsing consent is tough work, and the line separating ‘intoxication’ from ‘incapacitation’ is fuzzy,” wrote Creeley.
But FIRE is not only concerned with the technicalities of determining intoxication in Stanford cases. It has also raised concerns about the fairness of Stanford’s judicial review process. When reviewing the case of the unnamed student, the university changed the standard of proof for sexual assault cases from “beyond a reasonable doubt” to “a preponderance of evidence.”
According to Professor Robert Weisberg, an expert in criminal procedure at Stanford Law School, a “preponderance of evidence” is generally defined as the accused being considered “more likely than not” guilty. But he noted that Stanford was unique in using the “beyond a reasonable doubt” standard, because most universities already used a “preponderance of evidence standard.”
Weisberg explained that the change in the standard does not necessarily mean finding people guilty will become much easier. “The ‘preponderance of evidence’ standard is a very, very hard one for the university to meet,” he said.
“The gain in accuracy of moving a notch up to ‘beyond a reasonable doubt’ is very, very hard to predict,” he continued. “It may not make that much difference and conversely it could end up in too many false acquittals.”
But the unnamed student claims through FIRE that the standard of evidence was changed in the middle of his case. While Weisberg was unaware of the case and the student’s claim, he did comment that generally the standard of proof is considered part of the background of the case, something that should not change mid-trial.
Pontius-Hogan declined to comment on the case, but did state that Stanford changed its standard of proof in response to a letter that the United States Office for Civil Rights sent to universities last Spring.
Beyond just the change in mid-trial, FIRE has raised concerns about the fairness of the way BJS trains student reviewers. It references training materials that urge reviewers to be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence.” Reviewers are purportedly trained that abusers will “act logical and persuasive.”
Stanford’s Office on Judicial Affairs is currently changing its training procedures. “We do emphasize in our training that the responding student is not to be found responsible unless, at the conclusion of reviewing all of the information, the evidence shows by a preponderance of the evidence that the charge is true,” stated Pontius-Hogan.
FIRE wrote a letter to President Hennessy, “protesting the violations of due process and basic fairness in Stanford’s sexual misconduct policies and procedures,” according to their website. They received a response from an administration official who promised that the university would “‘substantively address’ FIRE’s objections in the student’s appeal.”
Stanford University does not handle sexual assault cases as criminal matters, but rather handles them as matters of university policy. According to Weisberg, the police can investigate and the district attorney can prosecute cases of sexual assault on campus, but an “implicit social understanding” allows Stanford to handle cases themselves.
“I think it’s a bad idea that people think that universities can handle these things better than prosecutors and police,” Weisberg commented. “I think it has sometimes encouraged the view that college students should be somewhat immune to normal public prosecution and that it’s somehow incorrect to view normal sexual assaulters as criminals if it happens in the context of a college environment.”