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