Widgets Magazine


Op ed: Setting the record straight on ARP and sexual assault

With 125 reported cases of sexual assault on the Stanford campus since 1996, it is easy to make the argument that sexual assault is the most important challenge we face. Sexual assault in any shape or form undermines the ability of our campus to provide a safe and healthy space for its students to both live and learn.

One incredibly important tool in preventing sexual assault at any university is a fair and comprehensive judicial process that (1) encourages those with legitimate sexual assault cases to come forward, (2) rightly identifies those who are guilty and (3) delivers punishment against perpetrators that gives at least a semblance of justice and closure to the victim. Without such a system, Stanford cannot hope to be credible in its commitment to students, especially women, to take every case of sexual assault seriously.

The Alternative Review Process (ARP) for sexual assault cases was created in April 2010 with the intention of addressing these challenges. The new ARP process, among other things, extended the statue of limitations on bringing a sexual assault case forward from six months up to two years. It also protected victims and the accused from cross-examination. A year later, President Hennessy strengthened the ARP when he responded to the U.S. Department of Education’s “Dear Colleague” letter by lowering the standard of guilt in ARP cases from “beyond a reasonable doubt” to “preponderance of evidence”–or, roughly speaking, “more likely to be guilty than not.”

Since these landmark decisions, the ARP has been subject to a number of important changes and to many criticisms–some valid, some absurd. One of the most troublesome criticisms has been that of the lowered standard of guilt in ARP cases. Former ASSU President Michael Cruz 12, for example, pointed to the potential for a party found guilty in an ARP case to sue the University for violating students’ legal protections as stipulated by the ASSU Constitution. This argument is false and encourages a bad policy of returning ARP cases to the “beyond a reasonable doubt” benchmark.

As Cruz himself stated, the Student Judicial Charter of 1997 empowers the University President to override the ASSU Constitution under “extraordinary circumstances.” It is clear that the Dear Colleague letter, as a federally endorsed legal position that requires Stanford to lower its burden of proof in sexual assault cases on the basis of Title IX of the Education Amendments of 1972, and by extension threatens to cut federal funding to Stanford, creates an extraordinary circumstance. Others, such as the Foundation for Individual Rights in Education (FIRE), have argued that Stanford should stand up to the U.S. Department of Education because this Title IX argument is flawed and the burden of proof is too low. I disagree.

Title IX is intended to prevent a person, on the basis of sex, from being “excluded from participation in, denied the benefits of, or subjected to discrimination under any education program or activity receiving federal financial assistance.” The reality of sexual assault is that this issue disproportionally affects women; according to the U.S Department of Justice, a woman was more than three times more likely to suffer rape or sexual assault than a man in the years between 1993 and 2008.

Furthermore, when considering Stanford’s judicial system, one must contextualize it within our own legal system. While criminal cases demand evidence to prove guilt “beyond a reasonable doubt,” civil courts often allow “preponderance of evidence” as sufficient cause for guilt. A famous example is O.J. Simpson, who was found liable (read: guilty) in civil suit for the wrongful death of Ron Goldman on the basis of “preponderance of guilt.”

A university legal system is a far weaker judicial authority than a civil court. Since a university lacks the power to impose punitive damage, students can choose to drop out should they be charged with a fine, injunction or other punishment. Stanford’s judicial processes should therefore be free to adjudicate by an even lower standard–for example, that of “substantial evidence.”

Ultimately, the big picture in the upcoming ASSU town meetings and all future debates on sexual assault judicial processes should be that the ARP, combined with the lower “preponderance of evidence” benchmark, has contributed toward significant progress in improving our university’s response to sexual assault. This is particularly true in the realm of moving victims of sexual assault who report these offenses on a path to gain justice through the University’s own judicial system.

This is a measurable fact. Out of 21 reported incidences between 2009 and today, 12 made it to hearings, as compared to only three cases going to judicial hearings out of the 104 reported in the thirteen years prior. Maintaining a reasonable standard of guilt is essential to continuing this trend.

There are a number of other, more important issues to be considered in the debate over ARP, among them the exceedingly low number of reported sexual assault cases. An April 2012 study by Stanford’s Health Promotion Services found that 360 out of 4000 (9 percent) students on campus reported having being sexually assaulted at Stanford. The number of incidents reported, however, remains fewer than 10 per year, nearly the same pace as before the installation of ARP. Debates over the definition of guilt are unnecessary and detract from discussion and progress in other areas of the sexual assault judicial review process.

Finally, I want to take on those who say this lowered standard is unfair to the accused. Ultimately, I believe that Stanford students are able bear the responsibility of acting in a manner that does not anywhere approach that benchmark of preponderance of evidence of a sexual assault. We should hold ourselves to high standards, rather than be concerned about our freedom to act irresponsibly in situations where there is legal uncertainty regarding our sexual interactions with others.

The strength of our anti-assault judicial processes depends on their consequences being credible. Reinstating standards deemed legally unjust under Title IX would undermine that credibility, both as a preventative tool and as a means of seeking justice.

Jonathan Poto ’13

  • Nope

    This is so off the mark.

    1. If you actually read the Dear Colleague Letter, you will realize the legal justification is all but skirted over. In defending the legal ground, you made no argument as to why the standard used to resolve Title IX disputes against schools (PoE) should necessarily be the standard used in peer to peer cases. There is a reason that very legitimate lawyers, some who used to work in the Office for Civil Rights, are against the letter.

    2. The Office for Civil Rights has little (if any) credibility as a legal institution. It is part of the executive branch.

    3. By arguing that Stanford judicial affairs has less legal authority than a civil court, you neglect to bring up any discussion of consequences on those found responsible. Civil court is a fine, while judicial affairs it is often suspension or expulsion. Stanford students care deeply about their education- which penalty do you think is worse?

    4. While the trend towards more hearings is a good thing, you have to ask yourself at what cost. We all think more murderers should be behind bars, but does this mean we should lower the burden of proof in those cases to make sure we get all of them locked up? Also, the statistics cannot say which measures of the ARP led to the desirable results. The ARP had changes beyond the standard of proof, and it is not clear to me that lowering the standard of proof alone led to substantially more hearings.

    5. Regarding your last point, I wonder if you know what qualifies as rape in the legal sense. Under the definition of rape that campus authorities have told me, a large portion of men on campus could be classified as rapists. Furthermore, your argument assumes that anyone opposing the PoE standard is highly self-interested and wants to make sure they are protected if they act irresponsibly. That is like saying anyone who thinks murderers should be tried under beyond a reasonable doubt is only doing so to protect themselves should they ever be accused of murder. It’s not about me. It’s about justice and rights.

    At the end of the day, if the ASSU and Faculty Senate truly believe that the ARP in its entirety is best for Stanford and all of its students, then I will be okay with them upholding it (I did vote for my ASSU representatives after all). But if they are motivated because some activist bureaucrat made a baseless interpretation of Title IX and forced it on the schools, then I have a problem with that.

  • StanfordSupporter42

    Great article on an important topic Jonathan! Do you have a pointer to more info on the April 2012 HPS study which found that 9% of students reported having been sexually assaulted at Stanford? I couldn’t find it at the HPS site and more context would be real helpful.

    For example, a Frosh woman might find the reporting rate for Senior women more relevant than the overall student rate (since women are assaulted much more frequently than men, and an October Frosh’s remaining time on campus roughly equals the on-campus *tenure* of an April Senior).

  • Jonathan Poto


    My source for this is The Daily. Unfortunately I could not find the actual HPS study either. It is certainly worth looking into as to why it is not easily accessible online. Thanks for pointing this out.

  • Miranda

    Thank you so much for writing this!!

  • Robert

    I wonder if you would enjoy the preponderance of evidence standard if you were falsely accused.

  • Robert Sanchez

    Because we all know that it’s impossible for an accuser to just lie.

  • anonymous

    If I were still in college, I’d call on all my fellow men, to join me in a Dating Strike, til this evil rule is changed.

    We will not date, court, romance, get engaged to, hook up with, flirt with, dance with, kiss, buy flowers for, propose to, engage in any sexual act with– indeed we will not even SOCIALIZE with — the women of the campus. We will do all our dating elsewhere.

    In other words, we’ll treat school just like a lawsuit-happy adult workplace.

  • NWOslave

    What exactly is the defintion of “sexual assault?” You cite the Stanford’s Health Promotion Services as saying 360 cases of sexual assault were cataloged. Did actual sex take place? If a guy and a girl are making out and he reaches down and touches her butt through her clothing and she says stop and he does. Is that still sexual assault? Because it was unwanted? In the game of courtship the man must make the first move as well as the last, no amount of social engineering will change that. Does something as frivilous as a stolen kiss constitute sexual assault?

    Sexual harassment seems to have taken on the same all encompassing generalities. If two girls are wearing short skirts and a man says nice legs to one she could cry sexual harassment yet the other might smile and say thanks. Or even just one girl. A man she doesn’t find particularly appealing she could say it’s sexual harassment. A man she does find particularly appealing she could cozy up to and be flattered. Women dress up specifically to be sexually admired. Does it come down to the mood of a woman? A good mood and she’s flattered, a bad mood and she’s harassed? Since this is definitely the way sexual harassment is determined. The defintion of sexual harassment is whatever any woman feels at any particular moment in time.

    As far as the Stanford’s Health Promotion Services claim of 360 cases of sexual assault. I’d be curious to know if any sex actually occured. Saying 360 cases of sexual assault conjures images of violent rapes. 360 cases of clumsy or unwanted touching through clothing while making out, or stolen kisses doesn’t conjure the same stark images.

  • Telemachus_1

    In a country that is literally coming apart at the seems, I’m always confused as to why “sexual assault” seems to be such a unique crime. Why not have the preponderance of evidence rule for all crimes? Why is rape so special?

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  • Jonathan

    That would never happen. I don’t put myself in risky situations where there is ambiguity about sexual consent, and for that reason if I was falsely accused, I would win that case 100% of the time. If someone is reckless enough to put themselves in that situation (1) they probably don’t respect women and (2) I don’t feel bad for them if they get punished by Stanford.