Vote on Alternative Review Process nears

Correction: The original version of this article misidentified Daniel Barton as David.

The ASSU Undergraduate Senate will debate whether to approve the Office of Judicial Affairs Alternative Review Process (ARP) for cases of sexual assault, relationship violence and stalking at tonight’s meeting. The ARP, instituted in 2010, is facing its two-year review and requires approval from the Undergraduate Senate and the Graduate Student Council (GSC) to continue.

The ARP includes two significant changes: shifting the standard of proof from “beyond a reasonable doubt” to “preponderance of evidence,” meaning jury members must be 51 percent certain of guilt to convict, and shrinking review panel juries from six members to four. These changes have raised concerns that the current system of convicting based on a majority is not sufficient, and both student representatives and alumni have recommended moving to requiring unanimous agreement on review panels.

The Office of Judicial Affairs (OJA) initiated the ARP as a pilot program in 2010 with the objective of making the judicial process more accessible and less intimidating for victims of sexual assault. Its development was partially in response to OJA data indicating that in the 13 years preceding 2010, there were 104 reports of sexual assault at Stanford, yet only 16 of those cases were reported to the Judicial Office and only three went to hearing. In comparison, statistics from a two-year study from the National Institute of Justice, cited in the 2011 Dear Colleague Letter from the Office for Civil Rights, predicted that over 650 female and 200 male students at Stanford have been sexually assaulted, a number far higher than report and trial rates.

“There was concern that the Judicial Process was a deterrent to victims of sexual assault, sexual harassment, dating violence and stalking,” Jamie Pontius-Hogan, assistant dean of the Office of Judicial Affairs, said in an email to The Daily.

“It surprises me that Stanford students would want to consent to a change in the rules that gives them less rights in a University disciplinary hearing,” said Daniel Barton, who has been a criminal law attorney for 23 years and has defended Stanford students in judicial proceedings. “People … have confidence that the University will use that power wisely and that they’ll never be on the wrong side of it. And that’s a delusion.”

Since the establishment of the ARP, there have been 21 cases of sexual assault reported on campus, 13 transferred to ARP and 12 tried. Of the 12 hearings in the past two years, 10 plaintiffs were found responsible, though one verdict was reversed in appeal. Pontius-Hogan said that the OJA has not found a higher proportion of students responsible since the burden of proof was lowered to a preponderance of evidence standard; she attributed the increase to the success of the ARP. The burden of proof was lowered midway through the ARP trial period.

“Of course they are going to get more cases if they don’t have to have the same level of certainty,” Barton said, “but people do get falsely accused. If there is a preponderance of evidence test, people will be falsely convicted, falsely suspended, falsely expelled. That’s the cost of a system that appears more efficient.”

 

The Dear Colleague Letter

On April 12, 2011, six days after he received a letter from the Office of Civil Rights, President Hennessy employed his authority to override the existing Judicial Affairs charter and ASSU Constitution — both of which protect the rights of the accused to face their accusers, be free from double jeopardy and remain innocent until proven guilty beyond a reasonable doubt — to revise the ARP and accord it with the federal guidelines.

According to the Office of Judicial Affairs, Stanford was one of only two or three universities to still use a burden of “beyond a reasonable doubt” in cases involving sexual assault. Even so, concerns remain over the ARP guidelines.

“Many of the Stanford sexual assault cases are cases that are very ambiguous and involve confusion and alcohol, and are cases that are very hard to prove beyond a reasonable doubt standard,” Barton said. “Most of the cases that are charged with sexual assault on campus end up being rejected by the police and the district attorney, but they are properly rejected … because you shouldn’t be imposing either a criminal sanction or an exclusion from the University unless there is a reliable way of determining what occurred.”

ASSU Senator Dan Ashton ‘14 also voiced opposition at the Senate’s April 24 meeting to the ARP’s protections for the accused. He noted that only six of the twelve rights of the accused currently guaranteed in the ASSU Constitution are protected by the ARP.

“I feel that you have a right to call witnesses and have your witnesses heard,” Ashton said. “I don’t understand why they would say you are not obligated to meet with witnesses they want to call. That doesn’t make sense for our legal system.”

 

Proposed changes to the ARP

Recent Senate meetings have been dominated by extensive debate about the Alternative Review Process (ARP) and its approval. Since the ARP has only been operating as a pilot program, it must be approved by both the Senate and GSC in order to continue.

The first proposed change voiced by undergraduate senators concerns increasing the number of reviewers on a panel from four back to six. While all other OJA proceedings have six sitting reviewers, the ARP has only four.

“If you’re going to decrease the panelist number from six to four, I think … because of that reduction, there should be an increased level of requirements,” Senator Ben Laufer ‘12 said in support of a larger panel. “I don’t know if having two more people would really dissuade people from taking action. I think there is, at least in my mind, a big difference between having 3-1 and 4-0.”

“[We chose four] out of concern for the comfort of both parties, and extreme concern for [their] privacy and confidentiality,” Pontius-Hogan said. “Also, most people on the board felt strongly that it should be student centered and having four we were able to have three students and one faculty or staff member, which felt like a good balance.”

Disagreement exists within the Board on Judicial Affairs as to the proper size of the review panels.

“Because we’re all presumed to be innocent, I don’t think you should force any responding student to have to overcome that burden on a 3-1 vote, to force him on the first round to convince two out of four people, I don’t think that’s fair,” said Timothy Lau J.D. ‘12, member of the Board on Judicial Affairs, at an April 18 gathering of student legislators.

The second proposed change, which the OJA decided not to endorse after extensive discussion, is requiring a unanimous rather than majority vote to find a student responsible. According to the OJA, no other disciplinary process at Stanford requires a more-than-majority vote, but, as The Daily previously reported, more than twice as many states require unanimous agreement for civil cases than require three-quarters agreement.

Law Professor Michele Dauber said that she thought the language of those supporting unanimity seemed to run contrary to the intent of the Office of Civil Rights.

“It’s been said with a high degree of explicitness … that it looks like Stanford is trying … to evade what the Department of Justice is trying to accomplish,” she said at the April 18 gathering.

Dauber and members of the Office of Judicial Affairs, who said that the ARP is “data driven,” also oppose the change because they believe that, coupled with the recent changes to accord with the Dear Colleague Letter, the effects of policy change cannot be distinguished if the variables are not changed incrementally.

“It’s not like a typical civil suit where you are just paying damages, or just like refrained from seeing someone,” Lau said. “When you get suspended for two/three years from Stanford … and you are labeled … a perpetrator of sexual assault by Stanford, it is something that goes with you for life. The punishment itself, while not entirely civil, has a criminal dimension to it. I think Stanford ought to be very careful before putting something like this on someone, that we do this process fairly.”

GSC representative Sjoerd de Ridder emailed the GSC list early Tuesday morning urging UGS and GSC members to take more time to weigh the ARP before approving it.

“Agreeing with the ARP as is basically states it is perfect,” de Ridder wrote.

“Amending it, on the fly, when approving it, is nonconstructive, because many bodies need to agree on the ARP. Providing a set of opinions is the responsible thing to do, as it would give the BJA resources and incentives to carefully review the document. … There is time to raise issues, because the Faculty Senate will not take this up till fall, and the pilot study has been extended till then.”

  • Typo

    don’t you mean Daniel Barton…..

  • Shocked

    There is overwhelming evidence that the process has become more fair for victims of violence and NO evidence that it has become less fair for responding students. So why is the ASSU Senate trying to change it? Why are they not deferring to the many experts in the field that all say the system is tilted against victims, and that changes like the ARP are necessary? The only evidence-based explanation is that they are unhappy that more victims are coming forward, since that has been the only data-based change since the implementation of the ARP.

    Why is Daniel Barton quoted extensively? He is not an expert in college campus judicial processes.  He is a criminal defense lawyer  (http://www.nablaw.com/attorneys/). The skills do not cross over, and one point that continually gets lost here is that Stanford is not setting up a legal system. It is ridiculous that a member of the BJA would compare Stanford’s power to that of a criminal court – being suspended from Stanford for a year is not even in the same ballpark as a prison sentence.

    I have been on two ARP sexual assault panels, and on those panels we issued one ‘responsible’ and one ‘not responsible’.  The responding student does not have to “convince two out of four people,” rather the IMPACTED student has to convince THREE out of four people. The process starts with the assumption of innocence.  We then evaluate the evidence and determine whether it is more likely than not that the responding student is responsible.  It is not enough that someone just say they were assaulted – there has to be enough evidence to make it more likely than not, which is not so easy, even in cases where an assault actually occurred.

    I also sit on non-ARP OJA panels (with six panelists), and it is absurd that the Senate wants to change it back to six.  It is difficult enough to have four people question you about the most personal details of your life, especially a time where someone is claiming you assaulted them or you are claiming someone assaulted you.  It is even difficult for OJA to put together four panelists, as frequently a potential panelist is known by one of the parties.  Finally, unlike regular panels ARP panels usually meets for a few hours at a time over the course of a few weeks, so scheduling around four people’s busy schedules can be tough.  To change it back to six would be unfair to the responding and impacted student, since they woud have to share those details with two more people, it would be unfair to OJA to find six non-baised panelists, and it would be unfair to panelists to have to schedule regular meetings for six people.

  • concerned_male

    Evidence the process is less fair for responding students: watchdog group Freedom for Individual Rights in Education posted copies of training materials for ARP panelists last year since Stanford will not make those public. Included is the book “Why Does He Do That: Inside the Minds of Angry and Controlling Men”.

    From that book used in training: “Everyone should be very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence. The great majority of allegations of abuse–though not all–are substantially accurate” (page 290).

    I’ve attached a link to the pdf materials: http://thefire.org/article/13397.html

    They also do an interesting piece on a wrongly accused student and his experience with the process, including panelist training where the accused “acting persuasive and logical ” is supposed to indicate guilt :
    http://thefire.org/article/13401.html

    We see the statistics constantly; sexual assault/violence against women is clearly a problem on college campuses, and indeed at Stanford. Thats why we’ve hired a new dean specifically to address the problem. I’m not sure what the solution is, but its certainly not less rigorous evidence, delivered to improperly trained students in the absence of legal training. It would be one thing to relax the burden of proof if the judges were instructed to be impartial. But if they’re instructed to be skeptical of the accused’s innocence from the beginning, AND only need 51% certainty without unanimity… 

    Out of curiosity, does Jamie Pontius-Hogan have a law degree? Who vetts the training materials, and why are they not made publicly available? I think anytime the President of the University has to suspend the ASSU Constitutions section on basic rights, as students we deserve to know a little bit more. I want to know more about the training process, and more about the qualifications of people like Ms. Pontius-Hogan to set up systems that are fair and impartial. 

  • Shocked

    Perhaps I should have been clearer: there is no evidence that the ARP in particular has made the process less fair for responding students. Maybe the training is/was biased, but that isn’t an issue with the ARP, which does not specify training materials.

    Specifically regarding FIRE’s claim that the training was biased, I was trained with the allegedly biased materials, but I don’t recall anyone telling me that if someone acts logical then that is evidence they are guilty. I think the point of those handouts was to demonstrate that actual victims and perpetrators can act quite differently than one would expect based on societal stereotypes, and that panels should base their decisions on what they are saying rather than how they seem. I’ve heard lots of people say about people they know, “He is too nice to have done that” or “She is too loud – doesn’t seem like a victim to me”.  If the responding student is assertive and logical and the impacted student is annoying or hesitant, that shouldn’t take precedence over the actual evidence.  Granted, the training materials that appear on FIRE don’t do a great job of conveying that point, but I think it was done better in the actual training.  Anyway, I believe Stanford has changed the training based on FIRE’s accusations.

    Why should Ms. Pontius-Hogan have a law degree? Stanford’s system is not a legal system. From a quick LinkedIn search it appears she has a PhD in Higher Education Administration, which is much more in line with what the OJA does on a day-to-day basis than a law degree. Of course, OJA must adhere to legal standards set forth by state and federal government, so when OJA or BJA or whomever is deciding on student conduct policies I think they consult with Stanford’s Office of the General Counsel.  

  • concerned reader

    Why is this article so slanted against the ARP??

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    I object to the Daily serving as a platform for attacking the credibility and competence of faculty and staff, which seems to be becoming a habit. In my opinion, Jamie Hogan is one of the most, if not the most, dedicated and competent staff members at this University. She works tirelessly to ensure fair and well-run processes for Stanford students.  It is obnoxious in the extreme to me as a faculty member to see our marvelous staff subjected to this unfair attack.  You can have whatever opinion you want about the ARP.  If women students and men of conscience do not become activists and speak up for change then Stanford may not get a good policy.  But there is no basis at all for this immature name calling against staff.  

  • Guest

    Whatever.  At Stanford, the relationship faculty/staff v. student always puts the student at a disadvantage. Somebody like you, of all people, should know that there is a reason why criminal convictions in the justice system require that the prosecution makes its case with the legal standard “beyond reasonable doubt”.  Given that 1- the panel members of a Judicial Affairs review are not legal experts, 2- as it is clear from the above links the training materials Stanford provides to wannabe panel members put the accused at a unfavorable position, 3- the possibility of false accusations and 4- the severe impact a finding of guilt can have on the accused  it’s only fair to ask what concerned_male is asking. Jamie Pontius-Hoga, who clearly doesn’t have expert knowledge in legal matters, should not be making decisions she is unqualified to make.
    Let me be clear that I find any kind of sexual abuse despicable. Any instance of such abuse should be prosecuted to the full extent of the law, but not “fuller”. Stanford should not be in the business of building an alternate justice system that puts the falsely accused at a clear disadvantage.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    This board is a sewer and this “newspaper” has no standards.  That much is now clear.  Any thinking person can distinguish between the first part of your comment, which is about your (misguided but legitimate) view of the ARP, and the second part which asserts that our staff member is “unqualified.” You have no basis for that allegation, and it is unnecessarily overheated, immature namecalling from behind the protection of anonymity. 

  • Student

    With all do respect, I think you are acting unreasonably and are using your presumed authority as a professor to subordinate and discredit legitimate student concerns.  I think you are acting completely inappropriately and hope you reconsider your approach.    

  • Student

    all due*

  • Guest

    ” You have no basis for that allegation”

    Well, unless she has lied about her resume in linkedin.com, she is clearly unqualified to make judgements on these legal matters that have so far-reaching effects on potentially falsely accused students. That’s a fact. Does she have a legal education? NOPE. Is she admitted to any bar association in the US? NOPE. Does she have any experience representing criminal defendants in front of a jury? NOPE. Does she have any experience working with real judges/prosecutors in the real world on criminal matters? NOPE. Should I continue?

    Too bad I am not one your students you can freely scold for having an opinion different than yours :D. The proposed ARP is a travesty of the ideal of justice one should expect from the Stanford administration. The idea that one cannot legitimately question the qualifications of the person having the responsibility for it  is preposterous. Grow up! 

  • Guest

     This is Jamie Pontius-Hogan 

    resume’s http://www.linkedin.com/pub/jamie-pontius-hogan/5/5a5/1b0 so!

  • concerned_male

    Professor Dauber,

    I just reread my comment, and I don’t believe I called Ms. Pontius-Hogan any names. I never questioned her dedication to the university and its students, nor attacked her in anyway other than to ask how the training materials that the University does not make public are selected and approved. I’m sure her intensions are pure, and I’m glad to see that she has the support of faculty like you. The training materials are problematic because when exposed, they appear biased, and the University discloses nothing about what they use.

    If the person organizing the training materials, or administering the program was a faculty member like yourself, trained in jurisprudence and in protecting the rights of the accused and ensuring all students due process, I would be much more comfortable with the program, and if that is a responsibility you or anyone at the law school was willing to take on, I think it would be an incredible service to the students here at Stanford.

    What I question about Ms. Pontius-Hogan, and about the process in general, is that the rights guaranteed to us as students in the ASSU constitution, never mind the United States, have been suspended. Due process has been suspended, the right to face your accused… I think in any situation where our rights are abrogated, we at the very least deserve an explanation. Why aren’t the training materials made public? Why can’t anyone sit in on the trainings and learn how to help their peers?

    Too much happens behind closed doors, and when the person administering has no legal training, but uses the terms “Office of Judicial Affairs” and “Judicial Proceedings” to describe what happens to students, I become even more concerned. I don’t think I’m alone in suggesting that legal training, and specifically training in protection of due process and the rights of the accused would be desirable from the people setting up programs that have the authority to label a student as a sex offender and kick him out of school.

    Its bad enough the judges are undergraduates. The least we can offer the accused as protection is to provide the undergraduate judges with training from someone with legal experience.

    I hope this clarification helps you understand my original post. I had no intention to attack Ms. Pontius-Hogan. I’m sure she is a wonderful person who tries very hard as you have described. I simply think having the training of judges administered by a legal professional is preferable, as is more transparency in the training process, and throughout the program.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Thank you for your reply concerned_male.  I was reacting to the phrase  “qualifications of people like Ms. Pontius-Hogan to set up systems that are fair and impartial.”  I think you can question whether you like the procedures or not without calling Jamie’s “qualifications” into question.  Since the ARP is not designed by her, it was designed by the Board on Judicial Affairs, of which she is not even a voting member, I find it particularly unfair that she is being singled out for  questioning of her credentials or qualification.  Jamie is a staff member and an educator.  The ARP was crafted by the BJA which has two people with law degrees (myself and Cathy Glaze, dean of students at the Law School) and is advised by University Counsel.  There are also other faculty, staff and students on the BJA.  Ms. Hogan did not have a vote. 

    I can assure you that the BJA concluded that under the ARP all students receive due process.  You and the ASSU are free to disagree and we can debate the merits of our views.I would be very happy to engage in a reasoned discussion on the various points you raise and made myself available for that and will continue to do so.  But I think there is a real difference between raising the merits and disparaging the qualifications of the staff.  I know you are only students so I don’t expect you to understand all the intricacies of these  issues and administration but you are old and mature enough to understand that it is hurtful to the feelings of staff to see that kind of talk.  It’s not fair, it’s not civil, and it’s not true.  

    Although no one seems to notice, I have hung around here trying to re-engage students in the merits and steer the conversation away from character assassination despite the fact that I have been accused of misleading and lying and probably murder as well.  But it is really hard to talk about the merits in a cesspool full of crazytalk and weird gotcha “journalism.” What should be happening is a discussion of the merits without the hysterics.   

  • concerned

    I do think judicial affairs would be better if it was staffed by lawyers. Ms. Pontius-Hogan has excellent qualifications – just not for this. People say it isn’t a judicial process etc but it is… and the consequences are serious. Maybe Stanford should setup an office like Cal’s Student Advocate’s Office http://advocate.berkeley.edu/ so responding students don’t just have an adviser but actually have an advocate – someone to defend them?

  • Guest

    Your response is ironic given that you have a record such as this one,

    http://www.paloaltoonline.com/news/show_story.php?id=20193

    there, your calls to dismiss Kevin Skelly are based only in a difference of opinion and what should be the priorities. You fell short of calling him unqualified to lead, but almost!

    This idea that ad hominem attacks are OK when you are the one making them but they are not OK when they are used to criticize  Jamie Pontius-Hogan or the whole ARP is a clear manifestation of hypocrisy on the part of the Stanford’s administration/faculty members :D.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Fair enough.  I don’t think that is necessary in what is a civil and pedagogical process, however you should raise with your student leaders whether or not they would like to ask the University to fund a “defense lawyer” for students.  What would that policy look like in implementation details? What about students who can afford to pay their own lawyers?  Should University funds subsidize attorneys for students who can afford them?  What about the fact that this is not strictly a legal process at all but an educational one?  It certainly would cut into the bread and butter of Dan Barton who has gone out of his way to have influence on a University matter without perhaps revealing to the extent he should have that he has a personal financial interest in the representation of students before OJA panels. Is that a conflict?  Anyway, whether or not the judicial advisor could or should be a lawyer is really quite apart from the ARP and is a matter of all judicial affairs matters, correct?  Perhaps it would be best to discuss it in the general rather than the specific context.  The judicial charter would have to be amended to provide that as a right for both the responding and impacted student (since all rights have to be symmetrical) and that would require hiring 2 attorneys, which would be an expensive proposition.  Perhaps we could find the money by eliminating this crappy student newspaper.

  • concerned

    I actually think Cal’s SAO is student run http://advocate.berkeley.edu/2005/main.php#about. Maybe Stanford Law students could run a similar office? I’m not sure the Charter would have to be amended. The office could exist external to Judicial Affairs and interested students could seek assistance if they want. For example, currently students who have the means can seek outside legal counsel. This would provide an option for students who don’t have such resources. Maybe this is something BJA could discuss and develop a proposal and work out the details?

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Not sure if the law school could do this at least not unless there was some kind of income guideline — our clinics serve underprivileged populations generally (though not exclusively).  Perhaps you could take this up with Tim Lau, who is a law student on the BJA and has been very vocal in his concern for the rights of students accused of sexual assault under the ARP (though he supports the ARP generally, he would prefer unanimity of reviewers).  So you could start there and see where that leads and feel free to come see me in office hours to discuss further face to face. 

  • Question

    You mention 2 attorneys would be required. Judicial affairs has (maybe had?) the same adviser advising both sides in a case. That seems like a conflict of interest?

  • concerned_male

    Professor Dauber,

    I mentioned Ms. Pontius-Hogan specifically because she is listed in the article as the Assistant Dean responsible for Judicial Affairs. I never questioned her competence or motivations, but I actually do think her qualifications are important because this program is being implemented under the trappings of a Judicial Office in response to a letter from the United States Department of Justice. If she’s not a lawyer, why is she the dean for Judicial Affairs administering a program to answer the concerns of the United States Department of Justice? We can debate the precise classification of the ARP endlessly, whether it is a pedagogical proceeding as you say, or whether kicking students out of Stanford and labeling them as sex offenders is more than a pedagogical exercise.

    Beyond that, and beyond simply criticizing the Daily’s comment boards (which I honestly believe work pretty well as a forum for concerned students to express their thoughts) I think a more constructive way of handling this would be for judicial affairs, you, Ms. Pontius-Hogan, or anyone with a thorough understanding of the process to write an op-ed, or to host an event in which students get to learn exactly how the process works and ask questions; how the judges are trained, what rights are available to accusing and responding students, and how those rights will be protected with a specific eye to the rights guaranteed us as students by the ASSU constitution. I think more than just a handful of ASSU senators have questions about this program, and any further publicity would have the desirable side effect of letting all students know that the University is cracking down on sexual assault, which might discourage criminal behavior.

    Until we get transparency into the process that strips us of half of the rights guaranteed to us as students (see Dan Ashton’s quote in the article) I don’t think as a man I can be anything other than terrified by the office of judicial affairs, and while you and other legal experts may have been involved in its creation, I don’t think I’m alone in wishing that legal professionals would also be involved in its administration and adjudication.

    Sincerely,
    Concerned Male

  • Guest

     This rant is what I would call reckless disregard for the rights of the accused. Ms Dauber would only be happy if she can get a bunch of male Stanford students expelled from the university, regardless of whether there is enough due process to prove that these students committed actual abuse.

    And continuing on the theme of hypocrisy, how can you say “Perhaps we could find the money by eliminating this crappy student newspaper” and then complain of ah hominem attacks against Jamie Pontius-Hogan?

    Wow, I am happy that my days at the Farm are long gone. I am not sure if I would have the courage to talk to any girl without the fear that I could be accused of sexual harassment. After all, it would be her word against mine and, no matter how well I articulate my case of being innocent, everything that I could say AND HOW I could say it would be considered evidence of my guilt. Time to move to another school guys!

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    If you host an event like that, perhaps in conjunction with the women’s center, and invite me to speak I would be glad to do it.   I disagree with you about the quality of comments on this board and I think it points to the reason that real identity in comment functions is crucial to ensuring good comment quality.  I have to endure a lot of snarky bullshit comments here in order to keep responding to the merits — and I am pretty sure that if you all had to use your real IDs that we would be just talking about the merits.  

    Nothing you are saying about the merits of your positions troubles me. And it is clear that there is a lot of misinformation (it’s not DOJ, it’s department of Education, which probably explains why we have a nonlawyer educator in a nonlegal educational role).  But when attacks get personal — this person is unqualified or that person is a liar — we have lost civility and lost the benefit of real discourse. So I think this board is really pretty much a cesspool.  And I would also love to have a different forum.  So host an event and invite and I will come.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    The judicial affairs adviser is not a lawyer and does not have the same conflicts issues that a lawyer does.  This is the problem with analogizing to a legal/trial context.  This is NOT a legal proceeding. However, students are free to obtain counsel .  I don’t have any idea whether the Provost would think that providing counsel to students charged by judicial affairs is a good or bad expenditure of resources.  There is no reason to provide them only in ARP cases — so that means you would be commiting to providing counsel to students charged in all OJA discipline hearings.  I hope you don’t like your nice amenities and your fancy classes and great teachers and pro quality sports facilities, since some of that would presumably  have to give way to hire the fleet of lawyers needed for all those cases.  So think about the tradeoffs and debate that one amongst yourselves.  BUt it has nothing to do with ARP — suspension is suspension and if you think a student facing suspension is entitled to counsel then you don’t have a reason for providing it only to those charged with relationship violence and rape.  

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    You’re hardly being “subordinat[ed]” and oppressed by me posting that you should debate the merits using your real names and identities and stop slagging people who are just trying to do their jobs.   

  • Guest

    Typical faculty arrogance.  You’ve made up your mind, have the power to enforce your decisions and there is nothing that can be said to reverse that. You’re only open to “explain”.
    Well, I guess that the consequences of the new process will be that more female students will become ostracized than when the older-better!- process was in place.

    As I said, I am very happy that I am no longer at the farm and that I live in the real world, where the presumption of innocence and “proof beyond reasonable doubt” are still the basic tenants of the criminal justice system. 

  • Clarification

    Yeah, but in the ‘real world’, ‘preponderance of the evidence’ is used all the time for civil cases, including restraining orders.  That is the same standard Stanford is using and the consequences associated with a restraining order are basically equivalent to the maximal consequences Stanford can dish out.

    I don’t think this is at all a justice system, let alone a criminal justice system.  Besides the Stanford Prison Experiment, when has Stanford ever put a student in jail?  It is a shame this conversation is getting overrun with law students who want a place to flaunt their education, since it takes it way off base.

  • Note

    Most people don’t care about rights until they are personally the one wishingthey had them.

  • stop.

    This is one of the most inappropriate comments I’ve ever seen by a professor. Regardless of your opinion on the matter, your decision to take to a public message board and bitch about the students you may very well teach is unbelievable. 

    I hope someone in the administration sees this and has a nice lengthy discussion with you. I’ll make sure to direct anyone considering your courses to your hilarious rants. 

    The sad part is, I generally agree with you on this topic. Too bad your credibility/likability is as low as your character.

  • Caroline Caselli

    Hi Professor Dauber,

    I don’t know you, nor am I well versed in this issue. I do know that I am a student journalist who has worked at The Daily for four years now, and will continue to work at The Daily in a business role after graduation next year.

    From perusing these comments and those on the other stories, I understand that this is an issue that you are quite passionate about and have invested a great deal of time into. I respect your expertise and your opinion, even if mine may (or may not) differ. 

    Similarly, many of the student journalists, artists, photographers, multimedia experts, and business staffers that work at The Daily are passionate about their work. Many of my peers have, and will continue to, go on to do remarkable work, both in the world of journalism and beyond. We don’t have faculty titles, and on occasion, we make mistakes, but we are a dedicated group of students looking to develop our skills while informing the Stanford community.

    It is beyond hurtful to hear from you, a faculty member, that we are “crappy,” a “newspaper” (quotes duly noted) with no standards, and unworthy of funds (we have actually received overwhelming student support in recent special fees elections). As a student, I thought that faculty members were supposed to applaud extracurricular pursuits that encourage Stanford students to engage their community, form lasting relationships, and develop critical thinking, writing, business, artistic, and other skills, all of which The Daily has done for me and countless other students.

    Of course, you, like everyone on this board, are entitled to your own opinion, be it about the ARP or The Daily as an organization. However, I suppose that I expected more, better, and kinder from an educator here at Stanford.

    Caroline Caselli ’12

  • Guest

    First, the person deciding on a restraining order is a judge. While not all judges are perfect, and there is misconduct,
    that’s a higher protection than a bunch of untrained amateurs making the call. Finally, , a restraining order is very different from being expelled from the university. I agree with Note though, you deserve to be falsely accused of sexual harassment (even if you are a female say that some nut lesbian accuses you of that) and suffer the consequences of the process. Only then you’ll understand what the real issues are.

    of  ducto

  • readability

    could you get the webmaster to please expand the width of the comment module so we can continue this lovely discussion at length with more than a few characters visible per line

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Dear Caroline:   Thanks for your note and for using your real name.  If you would like to meet and chat about why I feel that the Daily has behaved badly in this instance, I would be glad to do that.  I am sure there are a lot of students working there who love what they are doing.  I was editor of my own college paper (also at a school that lacked a J-school) so I do know that this is hard, and applaud that.  I was a very involved student journalist, did a lot of freelancing in college, and so I do know a bit about this.  I have been very very disappointed with the behavior of some of your editors which I think has been scandalous and not at all in the interests of the students or school.  I would be totally happy to talk with you about that face to face if you like any time.  Just email me. 

    Michele

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    QED.

  • Guest

    BS, you first insult the Daily and now you think you can fix things in a private talk. This whole episode has shown just how arrogant some faculty members are. I would not recommend anybody to take any of your classes :D. 

  • Student

    Preach. You hit the nail on the head. I am also concerned that sexual assault cases are under-reported, but with the new procedures the ARP recommends, even unintentionally unwanted acts of intimacy or acts that students 2 years later decide were unwanted because they now do not like the other person can successfully be “prosecuted”, leaving members of our community to be given the precedent of sanctions: suspension until the other party is off campus, which can be years if not decades.  Atrocious.  

  • Guest9999

    Because of all the secrecy and procedural failings surrounding its implementation. It’s hard to be positive about it!

  • A Concerned Law Student

    Professor Dauber,

     

    As a law student at Stanford Law and as someone who knows
    Mr. Lau personally, I can tell you that perhaps you should not be so quick to
    put words in his mouth. Amongst other students, he has expressed concerns about
    nearly every single part of the ARP policy and the administration’s secrecy
    surrounding its implementation, not just the removal of unanimity like you
    suggest. Perhaps the undue influence that you exert as a member of the faculty,
    which many on this comment board have identified, is already chilling the
    debate about this controversial policy, even amongst us graduate and
    professional students. (If our student representative doesn’t feel safe
    addressing these issues with you, how can you say that you’ve adequately considered
    the opposing views?)

     

    We don’t even have to reach the merits of the underlying
    policy to be suspicious. The procedural shortcomings surrounding its
    implementation call to mind the process that enabled the PATRIOT Act to pass.
    If you want to teach Stanford students that that particular political “achievement”
    is ideal, then please continue in the way that you have, especially criticizing
    the free and open press. You honestly don’t see your error in this? You have no
    idea why the undergrads (and Stanford Daily members) are revolting on this
    page?

     

    –A Very Concerned Law Student

     

    P.S. Yes I’m posting this anonymously because there is
    absolutely no way you would be able to grade me without bias after this. Your
    attacks on the undergrads have convinced me of that.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Dear Law student below: Tim stated that he supported the ARP  at the ASSU senate meeting two weeks ago and stated that he only objectedto the unanimity provisions.  Personally I don’t mind if he changed his mind and opposes it — that’s fine with me.  Perhaps the Daily can run a story “Law student misleadsASSU.” 

  • Lei

     Hey Folks, lets keep this Civil. I’m pretty sure Professor Dauber is not out to get male students expelled. While I personally have a different perspective on what a appropriate rights for the accused may be, and wish more of the process was brought out for discussion months ago, these comments attacking her as a representation of “faculty arrogance” are just incorrect. Based on the number of comments, and complexity of arguments advanced,  you can see that both Dr. Dauber and Concerned Male have spent a great deal of time and energy thinking through their positions. If you’d like to rebut an issue, do so, but insults will get us no where. The most fundamental question here is “would we rather have a system that risks occasionally  convicting an innocent male or more frequently victimizing an innocent female?” I’ve had friends on both sides of the equation, and feel that an inch-wide comment box is a difficult place to fairly elaborate the right balance. Its good that we’re at least discussing this now. The safest tactic for all my brothers out there, it seems, is to ask early and often, and not risk the drunk hookup (no matter how appealing it may seem).

  • guest

    the calendar in the article says the votes happened may 1 and may 2. what was the outcome?

  • Guest

     Always , always, side on the innocent’s behalf. That’s why the standard for criminal convictions is “beyond reasonable doubt”. History teaches us that there has been quite a bit of shedding of blood so that we Americans enjoy the presumption of  innocence and the “beyond reasonable doubt” for criminal convictions.  Ms Dauber is nothing more than an arrogant faculty member who believes in either her way or the highway.

    Guys, stay away of nut girls because they can put you in a great deal of trouble

     

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    I think that the ASSU postponed the vote (though the straw polls seemed to overwhelmingly favor passage of the ARP), and the Daily seems to have not reported on what GSU did or did not do on 5/2.  I think that more debate on the merits of the proposal is healthy and I welcome it.  I don’t personally agree that the process would expose students to a risk of unfairness.  The reason I feel the process is good are:

    1.  The alleged victim must persuade a majority of the reviewers that he/she was actually raped or abused.  As others have pointed out the burden of proof is placed on the victim not on the alleged perpetrator.  

    2. Majority (3/4) juries are used in civil matters all the time with fine results.  This is the rule in CA by our constitution for civil matters, and it is the rule for all other OJA proceedings (no requirement of unanimity). 

    3.  A student who loses (whether impacted or responding) has the opportunity to appeal, and the right is not illusory, it is real. The concerns about the ARP presume an error in the panel decision, that ends up being 3-1 for a finding of responsibility.  In that instance under the ARP rule, the responsible student can appeal.  However, under the “unanimous” finding rule in which one lone holdout could determine the panel’s conclusion, a student alleging that he/she had been raped would have persauded 3 reviewers yet still have the burden to appeal.  I am not sure why anyone thinks that would be more fair.  

    In the first instance, the one currently in use in the ARP, the alleged victim of rape has persauded 3/4 of reviewers that she was raped.  The alleged rapist only convinced one reviewer and he has the burden to appeal

    In the second instance — the one being advocated by concerned_male, Tim Lau, and some others on this board, the alleged victim of rape has persuaded 3/4 of reviewers that she was raped.  The alleged rapist only convinced one reviewer that he was not a rapist.  The victim has the burden of appeal.  

    There is no magic bullet here.  In either case, someone has to appeal.  A decision rule must be selected that is the most fair.  Why is it more fair to place the burden on the student who persuaded 3/4 of the reviewers than on the student who persuaded  1/4 of the reviewers?  

    Such may be the rule in criminal proceedings, but this is absolutely not a criminal proceeding. It is not even analogous to a criminal proceeding.  I don’t even think you can get Dan Barton to say that a University disciplinary hearing is the same as a criminal proceeding.  He just thinks he has a better chance of getting his clients found not responsible if it mimics a criminal proceeding since his clients will have a lawyer (who is also possibly representing them in a tandem criminal case) and the alleged victim generally speaking will not.   

    Stanford University is not a court of law.  It is not a criminal justice system.  The things you are arguing for like confrontation of witnesses and cross examination are misplaced.  For one thing there are no real rules of evidence or procedure or any of the other safeguards that ensure that a trial is actually designed to get at the truth.  The old process just set up a kangaroo court that looked like a court but provided basically a Rock-Em-Sock-Em Robots area where the two parties went after each other before large panels that sort of kind of looked like courts but had no real rules or procedures of courts.   There was no judge to moderate what a jury would hear or not hear, for one thing. So law students who are wrapped around the axle should ask yourselves: why are you advocating for a fakey court with no real procedures or rules that is demonstrated to result in all victims walking away rather than participate. The old system is a proven failure.  It did not work.  It was BROKEN.  There were over a hundred rapes and 3 hearings during a 7 year period.  Why are you defending that system? Does that strike you as a fair process? 

    As future members of the bar you should be advocating for something fair.  How is the current system fair?  Please explain to me how  104 rapes and 3 hearings in a 7 year period makes sense to you.  Until you can do that, I don’t think you have an argument on the merits, you are just being emotional.

    Given that the process was broken, we had to fix it.  We did the best we could and the new system is not perfect but it is very very good.  It may need adjustment and that is built into the process.  I am sure Dan would prefer the old system in which pretty much every rapist in the history of Stanford got to walk away from the scene without so much as a housing suspension.  Good for client relations.  But is it good for Stanford?  Is it good for Stanford students to have sexual predators in your midst that you cannot exclude? Where it is impossible to guarantee female students a safe educational environment?  

  • guest

    Thanks for your candor. I was actually quite surprised you would put this so explicitly:
    ” The things you are arguing for like confrontation of witnesses and cross examination are misplaced.  For one thing there are no real rules of evidence or procedure or any of the other safeguards that ensure that a trial is actually designed to get at the truth. “If there are no real rules of evidence or procedure or any safeguards, and the desire for a confrontation of witnesses and cross examination are misplaced, what exactly is a responding student supposed to have at his disposal with regard to exculpatory evidence? More importantly, how does this support your earlier statement that the program provides due process for the accused student?If I wasn’t terrified before, the open acknowledgement from someone as involved as you were in crafting the program that there are “no real rules of evidence or procedure or any of the other safeguards” certainly has me quaking in my boots.

    How would it be any comfort to a responding student that there is no real procedure designed to get at the truth? And in the absence of a procedure designed to make sure all the facts reach the deciding body, isn’t it even more important that the deciders are unanimous?

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Relax. That is my description of what we had BEFORE the ARP, not after it. The old OJA process for sexual assault looked kinds sorta like a court but it was not a court.  It does not have the same procedural and evidentiary rules that a court has.  Obviously it has rules, but they are quite minimal compared with those you might find in a state or federal code of criminal procedure for example.  So to insist on the form of the hearing without all the substance behind it created a very unfair and bad process in which you have something that looked like a court but did not have all of the things that go along with a trial that help us to ensure that we are having a process designed to ferret out the truth.  Instead what we had was a process that was resulting in a truly unfair situation in which nearly every victim who took a look at it said “no thanks” and the rapist got to just carry on.  

    What we did when we designed the ARP was to start with the goal of delivering due process for an educational institution.  The old system did not have due process.  I repeat: the old, failed system did not offer due process. Due process doesn’t mean this or that fetishized practice in any setting.  It means “what process is due to this person in this setting under these conditions.”  The process due in certain settings may be less than in others and that is not a miscarriage of justice that should incite high dudgeon, it is a fact of what “due process” means.  It means, literally, what process is due here, now.  

    The old system was error ridden and cruddy.  It resulted in over 100 rapes (itself known to be a vast underestimate) and 3 hearings in a 7 year period.  It was not a good, fair process and it did not deliver the “process that was due” to anyone in it, responsible or impacted parties.  

    The ARP repaired what was wrong with it, and the ARP system functions well and does the job it is supposed to do.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Also, you will see that my comments are really directed at law students who I think will know a bit more what I am challenging them to think about: why is the old system fair?  Why, SLS students, would you argue for a system known to be procedurally flawed?  I suspect that back of some of these law student objections is a desire for the slanted outcomes we have previously seen (100 rapes, 3 hearings, in 7 years).  

    SLS students, if you are really worried not about preserving this unfair allocation of substantive justice, but about the procedural fairness of the process, please articulate any plausible theory of how the old, pre-ARP system was fair.  Otherwise, this is just special pleading.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Sorry I think I was a little confusing in my terminology: by “current system” I was referring to pre-ARP.  

  • Guest

    Sorry, in any case it would be 100 “alleged rapes”. The way you are arguing your side should make any male Stanford student very, very scary. Your basic contention is that since the ARP doesn’t amount to a criminal conviction that results in a public record -never mind that being expelled from Stanford might be more damaging for one’s future than say a DUI or marijuana conviction-, it is free lunch to err on the side of the accuser. Anybody wonders where activist judges got their inspiration from? If this is the type of ethic taught at one of the country’s best Law schools, our system of justice is screwed if people with this mindset reach the high ranks of the judiciary.

  • http://www.facebook.com/people/Roberta-Sandolval/100003470614274 Roberta Sandolval

     What’s your response to the training materials that were referenced above?  I think they very much call into question the competency and integrity of those overseeing the ARP.

    Those materials serve no other purpose than to bias the board members against the respondent.

  • Cotwa

    “There were over a hundred rapes and 3 hearings during a 7 year period. ”

    The comment above exposes the writer as an gender divisive ideologue as opposed to someone interested in even-handed fairness and justice for all. She has decided, with no authority beyond her serene and ill-informed ipse dixit, that every claim of rape was, in fact, a rape, due process be damned. Thus, every male student accused of rape over seven years was, by necessity, a rapist.

    So much basic human decency, Prof.