Survivorship Is Not A Trump Card

hero-deptStanford must “place the survivor narrative at the center of every conversation” on sexual assault policy, a student speaker proclaimed to the audience. Emotionally compelling? Yes. Prudent policy? Doubtful.

Earlier tonight, a melting pot of every leftist group on campus – ranging from Stanford Democrats to the CSRE Department to the Feminist Gender and Sexuality Studies Program – hosted Congresswoman Jackie Speier (D-CA) in a forum on sexual assault policy on campus. Several survivors shared their stories, and I commend their bravery for speaking in front of over a hundred of their classmates.

In the event billed as a “Student Congressional Summit”, the survivor experience reigned supreme. One of the student speakers introducing the panel urged Stanford to “place the survivor narrative at the center of every conversation.” Speaker after speaker advocated for a complete overhaul of the existing system and sought to replace it with an investigative and adjudicative apparatus almost entirely tailor-made for the survivor’s emotional well-being. There is no doubt that Stanford can and should do more to provide services for survivors: multi-week wait times for CAPS personnel are unequivocally unacceptable.

The dream of a system directed by empathy and compassion has tempted students and policy makers in every field from economics to law. But beyond the emotionally enticing surface lie disastrous moral consequences. A system in which an alleged assailant’s guilt is a presupposed conclusion would hurt victims by delegitimizing the outcomes of an adjudicative process. A system in which an alleged assailant’s guilt is a presupposed conclusion would hurt the accused. A system in which an alleged assailant’s guilt is a presupposed conclusion would hurt the ideals of fairness that many Stanford students claim to champion. It is hard to understand why a student body battling racial profiling, automatic drug sentencing laws, and welfare work requirements that presuppose laziness would condone a system predicated on a belief that every individual accused of sexual assault is guilty.

A desire to ensure the accused are treated fairly does not, as many proclaim, rest on an assumption that most alleged victims are untruthful. It rests on a belief – ingrained in Western society for centuries – that all individuals deserve a fair hearing and the right to be presumed innocent until proven guilty in all cases, even heinous ones like sexual assault.

Due process empowers both parties to have attorneys present and speak on their behalf. Due process protects victims from arbitrary univeristy decisions and rule-changes by imposing clear and transparent procedures that are not changed mid-investigation or mid-hearing. Due process shields purported assailants from unclear evidentiary procedures and enables them to uncover the facts via cross-examination. Due process imposes the procedures necessary to find truth and act accordingly.

One of the most popular objections to this due process argument is a legal one: while due process is paramount in the judicial system, Title IX proceedings are not crafted to mirror the judiciary. Instead, Title IX was crafted with the specific purpose of ending gender discrimination, and multiple federal regulations hold that schools must address sexual assault and harassment complaints to comply with Title IX. In fact, victims may seek out Title IX’s alternate proceedings, accompanied by a lower standard of proof, because they are different from the judicial system. This logic, many claim, explains why Stanford’s system must be reformed to focus on survivor well-being.

The above argument renders a legal objection to a moral claim. Pointing to Title IX does not make a survivor’s narrative-dominant system just. It’s beyond the scope of this article to argue that justice for the accused is a higher moral good than protecting an alleged survivor. Many on campus, including Congresswoman Speier and her supporters, would reject this idea outright. But make no mistake, building a survivor-centered model of justice through Title IX requires subjecting due process to the discretion of university administrators, and requires a willingness to break the central pillar of our justice system for the sake of “safety”. Regardless of our views on the mechanics of sexual assault proceedings, we must all agree that balancing competing considerations of helping victims and maintaining due process merits serious debate and discussion.

Unfortunately, Congresswoman Speier was not interested in a serious discussion on this issue. I asked her about due process, and our exchange speaks for itself:

Brandon: If you’re building a system in an ideal world that’s almost solely designed to protect survivors, where then do you include considerations for due process? For example, Joe Lonsdale was banned from Stanford’s campus for ten years before all the facts were known and despite several procedural violations. And now Stanford cleared the case and the civil suit against him was dismissed. Where do you build in protections for due process if you structure a system designed to help survivors?

Congresswoman Speier: Well, Title IX creates an opportunity for nondiscrimination in educational experiences. It applies to men and women, it is there to provide a kind of due process for individuals. You know, there’s an aspect to your question that suggests that victims aren’t telling the truth. And we know in study after study that the number of false allegations is less than five percent.

Brandon: I’m not doubting the statistics about telling the truth. I’m just saying that theoretically, if everyone is telling the truth, due process considerations are just as important.

Congresswoman Speier: Well there’s due process. I mean if you talk to some of the victims they would say that there’s plenty of due process for the perpetrators (snaps from audience).

I addressed many of Congresswoman Speier’s claims earlier in this article. However, it was alarming to see a United States Congresswoman flippantly dismiss both the purpose and the value of due process. Even a basic familiarity with the concept of justice reveals that a right to due process does not depend on the probability of committing a crime; it is a fundamental right accorded to everyone even if there is 100% guilt. Notably, Congresswoman Speier called a bill introduced in Congress to restore due process in adjudication proceedings a “return to the dark ages”, hardly a sign of a desire for a civil and serious discussion about an issue as important as campus sexual assault.

The issue of sexual assault on college campuses is a dire one, and I urge Stanford to do far more to assist victims on the path to recovery. However, designing an entire system around the survivor narrative will cripple our basic notions of fairness and justice. The Stanford community can, and must, engage with all facets of the sexual assault debate, not just the emotionally seductive ones.

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