The 14th ASSU Undergraduate Senate will discuss the Alternative Review Process (ARP) tonight at the senators’ first full-length meeting in office. The program, which piloted in 2010 and was set for review and re-approval this year, provides an alternative judicial procedure for cases of sexual harassment, sexual assault and relationship abuse.
The ARP was developed and initiated partially in response to Office of Judicial Affairs (OJA) statistics that showed a disproportionately high rate of students who reported they had been sexually assaulted at Stanford but did not have a hearing.
From 1996 to 2009, there were 104 reports of sexual assault, yet only 3 of those cases went to hearing, according to OJA statistics. After the establishment of the ARP in April 2010, however, there have been 21 cases reported, 13 transferred to ARP and 12 tried.
With the debate over ARP reaching a critical juncture for student legislators, The Daily has broken down each component that has changed since 2010 or is currently being discussed for proposed changes.
Standard of proof
Before the ARP was established, all campus judicial panels, including those reviewing cases involving sexual assault, issued verdicts by a standard of beyond a reasonable doubt, the same standard used in criminal trials. The original charter of the ARP, piloted in 2010, also operated with the beyond a reasonable doubt burden.
In April 2011, however, President John Hennessy employed his executive power to lower the standard of proof to preponderance of evidence, which requires that reviewers find a student responsible if they believe a student to be more likely to have committed the act than not. Preponderance of evidence is the lowest existing burden in any type of civil, judicial or criminal proceeding.
Hennessy’s order responded to the April 2011 Dear Colleague Letter, issued by the Office for Civil Rights (OCR), which argued that the Supreme Court and the OCR use a preponderance of evidence standard when evaluating cases of discrimination and required Universities to do the same in cases involving sexual assault.
Although several parties have challenged the claims of the Dear Colleague Letter, Stanford would be in danger of being denied its Title IX funding had it not adjusted the standard of proof.
Currently, nearly every university, including Harvard, Princeton, Yale and Caltech, uses a preponderance of evidence standard in cases involving sexual assault. However, the Foundation for Individual Rights in Education (FIRE), a nonprofit organization that opposes both the logic and authority of the Dear Colleague Letter and directly recommended that the Stanford Graduate Student Council reject the lower standard of proof, reported that nine of the top 10 colleges, according to U.S. World and News Report, did not use the OCR-mandated standard prior to the OCR letter.
All other judicial proceedings at Stanford are still tried by a beyond a reasonable doubt standard.
When the ARP was altered in 2011 to lower the standard of proof, the authors also removed the right “to be considered innocent until found guilty.” The corresponding clause in the existing ARP says that a responding student has a right “to have the Reviewers determine responsibility by a preponderance of the evidence standard of proof.”
Dan Ashton ‘14, a member of the 13th Undergraduate Senate, pointed out this absence and encouraged his peers to amend the ARP to include a presumed innocence protection similar to that in the ASSU Constitution and Judicial Charter.
Size of review panels
Since its inception, the ARP has decided its verdicts with four members of the Stanford community — three students and one faculty member, distinguishing it from all other judicial proceedings, which have panels of six. The Office of Judicial Affairs said that it altered the procedure in 2010 to best protect the confidentiality and comfort of both parties, to align with student feedback concerning the optimal student-to-faculty reviewer ratio and to meet more practical concerns of ensuring that the appropriate number of qualified students is available at the time of a hearing.
The existing ARP requires, and has always required, a finding of responsibility from a simple majority of reviewers to hold a student responsible, as does every other type of judicial proceeding.
Several opponents of the looser procedural protections afforded by the Dear Colleague Letter, including a few outgoing ASSU Senators and students in the Office of Judicial Affairs, have advocated for increasing the voting requirement to unanimity so as to better guard against false verdicts.
Right to confront and cross-examine witnesses
In all other types of judicial hearings, and in cases involving sexual assault before the establishment of the ARP, responding students have and had the right “to cross-examine witnesses against them.” Within the ARP, however, responding students do not have the right to question impacted students, who often give the most influential, if not only, witness testimony.
Instead, responding students can make statements to both the investigator, who is responsible for compiling information about the case, and the review panel, which makes the final decision. These statements may refute the allegations against the responding student but cannot engage in the adversarial court process.
According to the OJA, impacted students are not expected to speak with the responding student at any time during the trial process because of the intimate and traumatizing nature of the alleged act.
Right to have witnesses heard
The pre-ARP process, and the judicial proceedings of all other types of cases at Stanford, guaranteed students the right to “call witnesses on their behalf at Judicial Panel hearings.” Responding students within ARP are only given the right “to request that the Investigator contact individuals who are witnesses to an event.” The new process gives the investigator discretion to not speak with individuals proffered by the responding student if they so choose.
Tessa Ormenyi ‘14, a student reviewer for ARP and coordinator at the Women’s Community Center, explained at the May 1 Senate meeting that the OJA has, in the past, had responding students call numerous irrelevant witnesses just to delay the trial.
Right to appeal & double jeopardy
Before the ARP was introduced, cases involving sexual assault had an appellate process similar to other judicial hearings: Students who felt they had been wrongfully found responsible could bring their case to a Final Appeals Panel for review.
In its pilot form, the ARP changed the process by allowing a student found responsible to appeal the decision to the Vice Provost for Student Affairs, whose verdict was final, instead of a panel of several members of the OJA.
After operating this way for a year, the ARP appellate process changed again with the publication of the Dear Colleague Letter, which requires that Universities shift their procedures to allow appeal from both sides when an unfavorable verdict is issued. This eliminates students’ right against being tried twice for the same offense, known as double jeopardy.
Shortly following the publication of the Dear Colleague Letter in April 2011, President Hennessey amended the ARP charter to grant equal appeal power to both the responding and impacted student.
Of the 12 hearings in the past two years, 10 responding students were found responsible, but only one verdict was reversed in appeal.
A few former ASSU Senators, notably Alon Elhanan ‘14, have voiced opposition to the unilateral discretion of the Vice Provost in affirming or overruling verdicts.
Statute of limitations
Until 2008, all impacted students, including complainants of sexual assault, were required to have a charge filed no more than six months after the alleged misconduct occurred. Any complaint filed after the six-month statue of limitations could not be tried through the University judicial process without an extraordinary circumstance.
In January 2008, however, the Office of Judicial Affairs extended the statute of limitations to two years for cases involving alleged sexual assault, dating/domestic violence, sexual harassment, stalking, hate crimes or physical assault. This statute applies to all cases that are heard under the ARP.
After a series of straw poll votes, the 13th Undergraduate Senate declined to vote on the ARP, leaving it to the 14th Senate to give approval or advocate for revisions. Since the ARP represents a change to the Office of Judicial Affairs charter, which operates under the ASSU Constitution, it must receive approval from both the ASSU Senate and Graduate Student Council (GSC) before it can be officially appended to the charter. The Senate may vote on the ARP tonight, or may postpone the vote further.
The pilot program of the ARP was extended to the fall of next academic year, so it will continue to operate pending an ASSU vote.