This week, the ASSU will resume discussion of the Alternative Review Process (ARP), which defines Stanford’s judicial procedure for hearing allegations of sexual assault, sexual harassment, relationship violence and stalking. The next two weeks may prove to be integral in solidifying how the process preserves the rights of accused students and alleviates the barriers that exist to victims pursing justice in cases of sexual misconduct.
The Office of Community Standards (formerly the Office of Judicial Affairs) adopted the current process in late 2011 as part of a pilot program, and since then has gradually improved the ARP in an effort to ensure its fairness to all parties. Because the modified ARP affects student life and alters the Judicial Charter, it must be approved with a two-thirds majority by the ASSU and GSC, as part of a collaborative process with the board of Judicial Affairs.
Progress towards approval began in the spring of 2012, but the Undergraduate Senate deferred the vote to take place this fall instead to allow for discussion and to engage students in resolving points of controversy through town hall-style meetings. Both the Board of Judicial Affairs and the Faculty Senate are waiting on a recommendation by the ASSU and GSC before they make progress with implementing the changes.
Why should students care about the deliberation of the ARP? The process was designed because the Sexual Advisory Board and the Office of Community Standards were concerned that the judicial process itself was a deterrent to victims of sexual misconduct seeking justice. This fear is corroborated by statistics reported by the National Victim Center that nine out of ten rapes go unreported. Furthermore, of the 104 reported cases of sexual assault at Stanford from 1996 to 2009, only 16 were reported to the Judicial Process and of those only 3 went to hearing.
Following the establishment of the ARP, twelve of the twenty-one cases of sexual assault reported on campus received hearings, finding 10 plaintiffs responsible. One verdict was reversed in an appeal.
Some consider the increase in hearings to indicate that more victims are reporting sexual assaults, rather than an increase in crimes. This may be because the ARP actively seeks to provide a less intimidating and confrontational experience for impacted students, incentivizing them to step forward. The ARP requires that trained students make up three of the four panelists constituting the Reviewers who deliberate a case. Responding students are denied access to the impacted students, and either party can appeal the case to the Vice Provost of Student Affairs to question a verdict for a final decision.
Panel representatives are extensively trained in understanding the nuances of different forms of sexual misconduct, gathering evidence, ascertaining credibility, and making determinations.
Motivated by a mandate by the Department of Education’s Office for Civil Rights issued in April of 2011, the ARP also lowers the standard of proof required to find a student responsible from Beyond a Reasonable Doubt to Preponderance of Evidence, thus solely requiring that evidence favor one side over another.
The lower the standard of evidence required to find a responding student responsible of sexual assault, the lower the barriers for the impacted student to report it, according to Sasha Patel, Manager of Education and Emergency Response.
While many of the ARP reforms may benefit impacted students, the process becomes much more controversial when its effect on the rights of responding students is considered. Lowering the standard of proof increases the risk of error in evaluating evidence and the probability of misidentification. Further questionable forfeitures of due process protections include the possibility of double jeopardy, where plaintiffs could be tried twice for the same crime if appealed by the accuser.
Professor Michael McConnell, law professor and director of the Stanford Constitutional Law Center echoed the objections of the American Association of University Professors to using the “Preponderance of Evidence” standard in that it gradually diminishes the rights of the accused. “[The ARP] isn’t just one change,” he explained while interpreting the Office of Civil Rights’ mandate. “Any one individual aspect of it may actually be quite justifiable. But it is rather a cascade of changes, every one of which makes it more difficult for an innocent person to [defend themselves].”
There is also a precedent for false accusations occurring when a preponderance of evidence is the minimum requiment to establish a verdict. In 2010, a student in North Dakota was wrongly found guilty of sexual assault by a campus court using the low standard of proof and was expelled for eighteen months before his case was reconsidered.
In 2007, three lacrosse players from Duke University were exhonerated of all charges of sexual assault they’d received the year before in another, similar case conducted through the criminal justice system.
The principle reason for schools adopting the lowest standard of proof in our judicial system is the federal pressure to do so else risk losing millions of dollars of federal funding. Thirty other institutions, including Yale University, and the University of Virginia, have complied, while many others, including Harvard University, continue to use more stringent standards.
Evaluating the risks of maintaining the lowered standard of proof is still a high priority for the ASSU as it moves forward with discussions. In a meeting on October 9, President Robbie Zimbroff ’12 and Vice President William Wagstaff ’12 announced their plan to encourage discourse and inform the student body through town hall-style meetings.
The first of these meetings is for undergraduates, and is scheduled for October 23. The second, for graduate students, will likely take place on October 24. The ASSU is still finalizing the event details.
“It’s going to be a great time to start that dialogue,” Zimbroff said in a Daily article from October 10th. “It’s a really difficult and complex issue, and we have to consider it very thoroughly.” Zimbroff hopes to attract students from across campus through ASSU outreach efforts with the Women’s Community Center, the Office of Accessible Education, and other organizations.
The ARP is a fundamentally student-centered process, and it’s imperative that students are both educated about its function and involved in its formulation at this juncture in judicial policy. Students who are able should attend the town hall meetings, or submit their thoughts on the process directly to the Office of Community Standards for direct input.
Because no policy formulation will be effective in eliminating the risk of false convictions while providing a more private and less confrontational process, we must carefully evaluate each procedure and weighs its probable impacts on all parties. Cultivating a system that rejects sexual misconduct and the hostile environment it creates is valuable only insofar as it does not counterproductively endanger the lives and educations of other innocent students.