Time to Talk About Review of Sexual Misconduct

When was the last time you wondered how Stanford reviews sexual misconduct? If a victim brings an issue of sexual harassment or assault to the Judicial Review board, how exactly does the Alternative Review Process (ARP) work? I would love to tell you that I know exactly what goes on, but unfortunately, since I am not on the Board (and if I were, I could not publish any thoughts on it), I cannot tell you much- because nobody really knows.

In an op-ed on the *Daily, *seniors Adam Adler and Rory MacQueen brought up several concerns about the standard of proof utilized by the ARP, and the preponderance of evidence (PoE) philosophy as guided by the Title IX. Simply put, PoE suggests that the approach to reviewing sexual misconduct should be tilted towards the idea that the offense is more likely to have happened than not.

According to data from the National Institute of Justice, about 20% of women in college report to having been sexually harassed, while only about 6% of men do so. These are staggering numbers, and one can clearly notice that the proportion of victims is skewed towards females. But Title IX prohibits sexual discrimination, and rightly so, and therefore I am also not arguing that either sex should receive more attention than the other.

My problem is what I had originally asserted- that we know too little about the process. Recently-proposed changes to the ARP have been stalled for votes several times in the ASSU. However, there have been comprehensive debates with advisory faculty members present, such as Professor Michael McConnell of the Law School. However, it is my opinion that students are still not talking about this serious issue.

On another *Daily *article published only two weeks ago, about one of these debates, there are only two comments. They are both by ASSU Senator Ben Laufer, who was present at these debates. There is not a single comment on the thread from anyone else in the Stanford community. I find this alarming.

As Laufer points out, the panel that conducts the ARP is self-selecting. To be on the panel, one must apply, and then take a class, where one is taught how to think about these things. It is not illogical to think that one would want to be on the panel because they are passionate about preventing sexual harassment and assault, and this makes an individual inherently biased against respondents to accusations. Sure, one may also want to be on the panel to create more fairness (and Laufer concedes this as well), but I would argue that the need to create fairness is a lesser motivator to a larger group of applicants, than the desire to eradicate assault.

Last year, the Foundation for Individual Rights in Education (FIRE) brought to our attention that the material used by Stanford to train students in the aforementioned class also fosters bias. Since then, the material being taught in the class has been changed. The only way to know what they are teaching now would probably be to apply and take the class over the summer- it is not entirely public information.

However, although a bit outdated, it is important to look at what FIRE’s concerns were. In a section entitled “distinguishing victim/survivor from abuser,” one of the characteristics listed under “indication of an abuser” is: “acts persuasive and logical.” Essentially, what this teaches an ARP panelist is that if a respondent articulates his defense well, chances are that he is actually guilty. Not only is this an extension of PoE (which the University has endorsed anyway), it is difficult to digest this as a fair system. It is one thing to be skeptical of provided arguments, but it is entirely another to assume guilt from the well-structured nature of the arguments.

Another example, this one from a book entitled “Why does he do that: Inside the minds of angry and controlling men.” Sure, the title itself raises eyebrows, but let’s moves past that. A “key point to remember,” according to this book, is that “everyone should be very, very cautious of a man’s claims that he has been wrongly accused.”

I do not wish to start a gender war here. My point is simply this: the material brought to attention by FIRE creates bias, regardless of which gender it disfavors. Again, this material has been apparently revised by the University. But I find it problematic that such material was ever allowed, and it only follows that regardless of revisions, this careless treatment of bias is reflective of a culture within the ARP that is not succeeding in being completely fair.

One of the greatest fallacies of a legal system as structured as ours is that there isn’t necessarily consistency across civil and criminal courts. The standard of proof in the latter is often far higher than that in the former, and as a result, someone deemed not guilty in one court may still be charged for offenses in the other. However, one of the arguments in favor of universities taking stronger position against sexual assault is that criminal prosecutors will often leave cases due to a lack of evidence. This argument was brought up in a column on the Chronicle by Lauren Sieben, who also argued that this gives reason to Universities to take hasty measures.

The argument seems to align well with Professor McConnell’s suggestions in a recent senate debate. He stated that the Dear-Colleague Letter released by the U.S. Education Department’s Office of Civil Rights that advocates for using PoE is hotly debated by scholars and civil rights organizations alike. But this letter, released in 2011, prompted Stanford to jump ship to PoE from a clearer standard of conviction. This could very well be an example that when it comes to sexual misconduct, universities are readier to favor accusers than to think twice about fairness.

The standard punishment for sexual assault at Stanford is to be suspended from school and the campus for as long as the victim is still living here. That, and the indication of a suspension on permanent records. This is no joke for someone who is charged by the ARP, and in essence, it ruins the future of a bright Stanford student. Now, if this student is guilty, then I can concede that the charge is rightly deserved. But many questions, about panels, the people, training, the process, and so ad infinitum, determine whether this will be a fair verdict.

We can debate all we want about PoE, standards of conviction etc. But what I set out to do in this column was to draw a complicated picture of the ARP, to show you that there is an incredibly sensitive policy here at Stanford, backed by a very secretive (or at least not prevalent) process, carried out by a board and a review panel that we seldom talk about, or on whom we have very little information.

It is incredibly important that the ARP be brought into greater scrutiny from a larger portion of the Stanford community, not just a self-selecting panel, and the very few people who are trying to remain objective.

Subscribe to the Stanford Review