Widgets Magazine

OPINIONS

Realigning universities’ paralegal sexual assault systems

Currently, both Stanford and the criminal justice system have processes to deal with sexual assault. Under Title IX of the Education Amendments of 1972, if a student wants to report an instance of sexual assault, (s)he doesn’t have to go through the criminal system. However, if reported to university officials, Stanford is required to investigate, determine guilt on the “preponderance of evidence” standard and take appropriate action. Title IX, in essence, forces universities like Stanford to become paralegal systems something a university is ill-equipped to handle and that results in inappropriate responses to sexual assault cases.

Stanford’s and other universities’ sexual assault judicial processes deny the rights that are crucial to ensuring a fair and impartial trial. Unlike in the justice system, Stanford’s Alternative Review Process (ARP) does not provide due process as conventionally conceived. The ARP is essentially an adjudication process conducted through a series of private interviews and arbitrated by a panel of three students and two faculty members who receive some sort of training in the legal aspects of sexual assault. Unlike with a jury, neither the defense nor the prosecution can make challenges to the panel composition if they believe certain members incapable of making impartial judgments (e.g., due to ideological reasons). Moreover, unlike in the justice system, the defense does not have the option to choose a judge (who is required to be extensively trained in the law) over a panel of peers. While university judicial systems are not required to abide by constitutional due process, not doing so opens the gates to personal biases influencing the evaluation of legal claims.

More than this, sexual assault cases represent a conflict of interest for universities trying to adjudicate and resolve these issues. Universities want to protect their images, but publicly exposing sexual assault would tarnish the reputation of a school and reduce admissions rates. For example, following Duke’s lacrosse sexual assault scandal, its offer acceptance rate fell ~two percent, with larger reductions in minority groups. Moreover, in a recent incident at University of Virginia, when rape survivor Jackie asked her dean why UVA does not publicly disclose its sexual misconduct data, he replied, “Because nobody wants to send their daughter to a rape school.” Similarly, survivors at both Harvard and Columbia were subtly encouraged by university administration to resolve sexual assault claims quietly. These incidents are not outliers. Currently, 64 universities are being investigated by the Department of Education for not adequately abiding by Title IX requirements, which include things such as basic as providing a grievance process and appeal rights.

One proposed solution to these issues is to encourage universities to rely on the outcomes of the justice system to determine academic punishment. There would be two main reasons to support such a proposition. First, requiring survivors who wish to press charges to use the justice system would remove a university’s conflict of interest. Universities would no longer have the power to shape the judicial process in a way that discourages hearings or ignores a survivor’s wishes. Moreover, the personnel and monetary resources used to investigate and resolve assault claims could instead be used to enhance prevention efforts and the network of support for survivors.

Second, the criminal system uses a high standard of evidence (i.e., “beyond a reasonable doubt”) compared to what universities are mandated to use for Title IX (i.e., “preponderance of evidence”). A “preponderance of evidence” standard requires that something be more likely than not to have occurred (a 51-percent threshold) for someone to be charged. If we are to agree that expulsion should be the presumptive sanction for forcible sexual assault (as many universities are considering), then we should also require greater certainty in the act. Such an approach reflects the seriousness of a crime like sexual assault, while also emphasizing the need for convincing, reliable evidence to justify the punishment.

Utilizing the justice system does bring up concerns about reporting sexual assault. Research indicates that survivors do not report sexual assault because they feel ashamed, they have confidentiality concerns and/or they fear not being believed. All of these concerns are more pronounced in the justice system, which can be slow and impersonal, than in the campus system. Consequently, universities are providing and should continue to provide the space for confidential counseling, psychological support and medical help. Moreover, the university should be the place that accommodates the requests of survivors (e.g., housing and class changes to be removed from proximity to past assailants) even if they have not or do not wish to go through the adjudication process.

However, when it comes to resolving claims through a judicial process, the university system is lacking. Specifically, connecting academic punishment to the justice system could resolve some concerns about the preservation of the prosecution and defendant’s rights and the impartiality in the decision-making process. But, even if you do not agree with such a drastic shift in our sexual assault response, there are no doubt areas to improve the university’s judicial system. Ensuring due process, providing appropriate punishments (e.g., expulsion for forcible sexual assault) and supporting survivors regardless of concerns for institutional reputation are all areas where universities can do a better job.

Contact Neil Chaudhary at neilman ‘at’ stanford.edu.

  • Stand with Leland

    Pretty good op-ed piece. It feels like the tides are starting to turn back against this wave of fascistic campus feminism, which is nice to see. This article makes a reasonable suggestion: tie academic punishment to criminal punishment in sexual assault cases and eliminate the campus tribunal, which all sides agree is ill-equipped to adjudicate allegations of felonies. It misses certain issues though. For one, Stanford is federally obliged to have these grievance processes and convene these panels. Now, one can argue that Stanford is positioned as well as any university in the country to stand up to the federal government and refuse to try these cases, thereby forgoing federal funding; in fact, 28 professors at the Harvard Law School advocated for just that at our Ivy League counterpart. But Stanford is a corporation and money is the bottom line, so you can as much as forget that. Also, there’s somewhat of a tautology in saying that academic punishment should be tied to criminal punishment. I mean, of course it should. If you’re convicted of rape and spend the next 15 years of your life in jail, it’s kind of hard to be a Stanford student at that point. But do we really need to codify that?

    At the end of the day I find myself in agreement with many of the points the author made; yes, universities are ill-equipped to try rape cases and yes, rape and sexual assault should be dealt with by the police. I just think the op-ed missed a bit of nuance. Plus, the article was totally self-deflating at the end. Pro tip to the author: if you’re going to advocate for an unpopular position, be firm in your conviction about it. Don’t back down at the end.

  • Read Up a Bit

    This article is really under-researched. There are some pretty glaring technical problems with his understanding of Stanford’s current ARP process, and the reasons why universities adjudicate these cases to begin with. The criminal justice system and protection of civil rights under Title IX are very separate discussions that become quite muddled here.

  • DavidDoe

    I see shameful anti-female and pro-rape tactics in play here.

    There are many studies and statistics which prove that rape culture exists. CDC for instance states that nearly 1 in 5 women (http://www.cdc.gov/violenceprevention/pdf/sv-datasheet-a.pdf) are raped at some time in their lives. President Barack Obama (see video below) has stated that 1 in 5 of female students are sexually assaulted during their stay on college campus. It is also estimated that women make 77 cents for every 1 dollar a man earns, which is a form of financial rape.

    Unless the facts change, there is no need to change the policy regarding rape. The truth is undeniable and it is very hurtful that you are apologizing for rape.

    https://www.youtube.com/watch?v=6uvhYjmAiEc

  • Anders

    I think the 1 in 5 figure refers to sexual assault. They counted positive responses to being “kissed against your will” towards that figure. So the stats are misleading (if I remember correctly an even larger percentage of men would have been sexually assaulted using the same criteria), but of course you are right that sexual assault is a serious problem. But the seriousness of the problem does not justify victimising wrongfully accused as well, does it? Rapists are, I submit, borderline psychopathic. Why in the world would we not expect borderline psychopathic women to misuse sexual assault accusations? Their psychopathy and the simple fact that they were not actually assaulted will insulate them well from the much-vaunted distress of going through the investigation (which, again, I am not questioning).

  • Lodadissqu32
  • Incorrect

    This article lacks sufficient research. It is California law, also reinforced by the Supreme Court, that the preponderance of evidence standard will be used to address sexual assault cases under Title IX.

    Unless someone wants to work at actively changing California law, and challenging the Supreme Court, that standard is here to stay. I would recommend that op-eds focus on changes are legally plausible for the university.

  • Mina Shah

    The 1 in 5 statistic includes being “kissed against your will” because that is sexual assault. It is also troubling to me how narrow your conception of sexual assault is with regard to gender roles. Both men and women can be sexually assaulted or raped. Both men and women can be perpetrators of rape and sexual assault. These things do not just work in one direction.

    Not all rapists are borderline psychopathic or as rare as you seem to think. Psychologist David Lisak surveyed over 2,000 college men asking questions about behaviors that are defined as rape without using the word “rape” in the questioning. One in sixteen men answered in the affirmative. That’s over six percent of men surveyed self-identifying as a rapist. (http://www.npr.org/templates/story/story.php?storyId=124272157)

    Additionally, women very seldom lie about being raped or sexually assaulted. There is a very real social stigma against victims of rape and sexual assault; coming forward as a victim is often a traumatic experience, and victims, instead of being met with care and trust, are often met with accusatory questions regarding their level of intoxication, what they were wearing, who they were with, etc. Instead of belief, they are often met with an “Are you sure?” Further, sexual assault victims are seldom believed, so why bother coming forward if the likelihood that anything will come of an accusation is so slim?

  • Anders

    Of course I agree that sexual assault against men has been vastly ignored and diminished – but that gender role-based tendency has, arguable, been strengthened by societal hysteria about sexual assault against women. And if you want to call kissing sexual assault, that is fine, but the problem is that rape and sexual assault get conflated in the discourse – even Obama used the terms interchangeably.

    As far as lying about rape go, I find it astonishing that we expect several hundred times as many men to rape as women to lie about rape – they are both, after all, abuses of traditional advantages (men abuse their power; women society’s conception of them as victims). But that issue has been discussed elsewhere; what I wanted to wonder is how come on the one hand we are convinced that society does not believe sexual assault victims, while on the other hand Rolling Stones can report of a UVA assault that challenges even the most credulous among us and enjoy close to no second-guessing whatsoever? I think, on the contrary, that we are obsessed with believing the accuser – at least the ones that fit our preconceived notions of a victim.

  • Anders

    Ok, no links. Am too lazy. Let us say we have 100 k rape accusations (male to female), and that unreported rapes are about 90% (modest compared to overall estimations of rape prevalence). So 1 million rapes. Out of the 100 k accusations, common estimates would be that 2-10 k are false. 2,000 false accusations is 0.2% when compared to the total number of rapes. We would hence have to believe that men are 5,000 times more likely to abuse their physical power then women are to abuse their gender role – and that although the punishment for rape (and opportunity cost for the assailant) are enormous compared to those of a false accuser (where punishments are mild, few cases are prosecuted, and only, I understand, if the falseness has been proven in full).

    So no, even if I accept that women are “gooder” then men, rates of sociopathy alone would suggest a much higher prevalence of false accusations. Glossing over the problem will simply increase the cases of provable mistreatment of the accused, which will of course in turn lead to more distrust of accusers. The only way out is a level-headed approach.