Op-Ed: Protecting women’s rights in the ARP

The Alternative Review Process (ARP) is a judicial review system used by Stanford in cases of sexual misconduct. Over the past few weeks, there has been a great deal of debate about which standard of proof should be used in the ARP. While it is easy to identify two sides in this debate and to pit them against each other, such a strategy oversimplifies the issue. The interests of the victim are not, as one might assume, diametrically opposed to those of the accused. This is not a zero-sum game between the accused and the abused; instead, the interests of these two groups complement each other.

According to numerous studies, there are three reasons why most sexual assaults go unreported. The first is that many victims blame themselves for what happened and feel too ashamed to talk to authorities. The second reason is that victims want to avoid reliving the incident. Before we discuss the third reason, it is important to understand a few things about the ARP. Two years ago, when it came into effect, the ARP implemented a variety of reforms which make it easier for victims to approach authorities. These changes were effective: initial figures suggest the reforms led to a substantial increase in reporting of abuse to authorities. The changes made by the ARP, however, do not tell us anything about how the standard of proof impacts one’s willingness to come forward, since Stanford only recently changed the standard of proof used by the ARP. For its first year, the ARP operated using beyond a reasonable doubt. Stanford switched to preponderance of the evidence (PoE) during the ARP’s second year. Current data does not suggest that the switch to PoE made it easier for victims of abuse to come forward. To the contrary, we have reason to believe the switch will actually decrease the rate at which victims will report abuse. To understand why, we can look to the third reason why victims do not report abuse.

The third reason victims do not report sexual assault is out of fear they will lose the respect of their peers – that they will be perceived as troublemakers and blamed for harming the reputation of their abuser. The standard of proof in sexual assault cases does impact this reason in that it affects the extent to which women experience stigma. One might be tempted to think a lower standard of proof would decrease stigma by increasing the rate at which the accused are found guilty, legitimizing the claims of the victim. We contend that a lower standard of proof will actually make things worse for victims. The stigma experienced by victims of abuse does not depend simply on the verdict in a judicial affairs hearing, but is also impacted by the legitimacy and credibility of the process.

A standard of proof is only as strong as its minimum requirement. The conviction of a man who is unquestionably guilty is no more legitimate than the conviction of someone who barely passes the PoE threshold. This means that even in clear cases, a woman who reports abuse will face doubt and scrutiny from her peers and will suffer the emotional distress that follows. Hence, even when she wins, she loses. The abuser will be gone, but the stigma will remain. Worse still, the incredulity now has legitimacy, since rational people can, and indeed should, by definition, harbour a reasonable doubt about the validity of the outcome.

But there’s more to it. PoE certainly makes it more likely that an accused man will be found responsible for sexual assault, but it does not guarantee such an outcome. We have shown that a lower standard makes a conviction less believable. A corollary is that a lower standard makes a finding of innocence much more believable. If a person is found innocent at the lowest standard of proof, then he would certainly have been found innocent under a higher standard. Since we know that people shun negative outcomes more than they desire positive ones, the impact is that the number of women who will come forward as a result of the lower standard will be outweighed by the much larger number of women who will now be deterred from coming forward for fear of the accused being proclaimed innocent. Since the standard is much lower, a woman who loses a sexual assault case is now much more likely to be seen as a troublemaker.

Choosing a standard of proof is about balancing the rights of the victim and the rights of the accused. Thus far, student debates have placed the rights of these groups in opposition to each other. It is our hope that students and administrators will recognize that the rights of these two groups are interdependent, and that the preponderance of the evidence standard is harmful to everyone.


Adam Adler B.S. ’12
Rory MacQueen B.S. ’12 M.S. ’13

About Op Ed

  • http://www.facebook.com/people/Politically-Incorrect/100001896293128 Politically Incorrect

    I wouldn’t have argued things this way but I can understand your point of view as well. The bottom line is that using PoE to prosecute sexual assault cases is a really, really bad idea. 

  • anonymous

    A couple of assumptions in this op-ed that I would seriously question:
    1) It seems that the authors are basing their “scrutiny from her peers” argument on the assumption that Judicial Affairs processes are in some way public.  In fact, these processes are very private events and frequently a victim will not tell his or her peers that he or she in involved in the process.  Instead, the ARP is a private and safe process of figuring out the best way to look out for the overall safety of our community.  The ARP requirements state that this process will remain confidential to the fullest extent possible.2) It also seems that both male authors make a number of assumptions about the inner workings of the brain of a female sexual assault victim.  In order for their argument to be credible, I would like to see some evidence or testimonials to back up their claims, especially their claim that women will be deterred from coming forward because of a lower standard of proof.  As of now, it seems like more of a speculation than a likely scenario.

  • fan

    well-reasoned argument. Mr. Macqueen one again stands up for the rights of women the world over. 

  • anon

    Yeah, but the Dept of Education expects a “preponderance of evidence” standard as specified in the Dear Colleague letter (http://chronicle.com/article/Education-Dept-Issues-New/127004/).

    So unless Stanford is willing to lose Title IX funding or wants to challenge the Department of Education in court, it doesn’t matter. Also, all of the arguments put forth in the article are entirely theoretical — is there any evidence to even suggest that the lower standard has decreased reporting?

  • guest

    I think it’s also troubling that there seems to be an assumption that “justice is being served” under the current system, wherein the worst that could happen to an accuser is that she is stigmatized, and that this would not be the case with the PoE standard. In fact, the worst thing that would happen under tha current standard would be that she accuses someone, they are released on “not enough evidence” (which is all too common across many universities who, understandably but unfortunately, want to suppress possible problems or press to preserve their reputation) and she is still stigmatized. Especially in he-said-she-said situations where the victim knows her attacker (which is statistically much much more probable than stranger rape), this is overwhelmingly the case, thus continuing to discourage victims from reporting. 

    Most importantly, as far as I understand, Stanford is only one of a few American universities to retain this aggressively high standard of proof, which means that while we are pushing for innovation, creativity, equality, and education, we can’t even adapt for the sexual protection of 50% (or so) of the undergraduate population. 

  • AnonResponse

    That Department of Education/funding argument is a fallacy for 5 reasons.

    1. It assumes, without justification, that the Department of Education would pull funding from Stanford if Stanford elected to use a higher standard of proof.

    2. It assumes, without justification, that Stanford would have to go to court to resolve the issue, rather than settle with the Department of Education out of court.

    3. It assumes, without justification, that the Department of Education’s interpretation controls the issue. In fact, it is the Civil Rights Division of the Department of Justice that controls the issue, and the Department of Education would not be able to take funding away with the a finding of discrimination from the Department of Justice.

    4. The purpose of the Op-Ed is to show how the preponderance of evidence standard is bad. The piece never addresses and never purports to address what Stanford should do about it.

    5. It assumes, without justification, that the Department of Education’s interpretation is correct and enforceable. In fact, their view of Title IX is embarrassingly laughable. See: http://www.openmarket.org/2011/04/11/education-department-changes-burden-of-proof-in-sexual-harassment-cases-under-title-ix/

  • Rory MacQueen

    Notwithstanding the best efforts of the university to keep sexual assault cases confidential, I think it is quite wishful thinking to assume that news will not get out about the identity of the parties involved. In fact, precisely because there is no official announcement made by the university, unconfirmed rumours, which can be much more devastating to the girl’s reputation, are allowed to flourish. 
    Recognize also that much of our argument is based on a distinction between perception and reality. The distinction is particularly applicable here. It’s not about whether details of the case will actually get out – it’s about whether those who are considering coming forward with their case believe that details will get out. Those are two quite different concepts.

    As for your second point, we don’t pretend to make assumptions about the “inner workings of the brain of a female sexual assault victim” – all we do is try to consider what a reasonable individual would be thinking when deciding whether to come forward with their case. It is our belief that a reasonable individual, when weighing up the consequences, would be more, and not less, deterred by a lower standard of proof for the accused. Unfortunately, the change in the standard is so recent that no one has been able to gather any concrete data to either support or refute our claim, but it is still a claim backed by logical arguments and is therefore, I think, a bit more than just mere “speculation”.