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Senator scrutinizes claims by Judicial Affairs co-chair

Brendan O'Byrne

By: Brendan O'Byrne

Michele Dauber, Stanford law professor and co-chair of the Judicial Affairs Committee, made misleading statements to an assembly of student representatives last Wednesday regarding the new Alternative Review Process (ARP) for sexual assault cases on campus. ASSU Senator Ben Laufer ‘12 said at the Senate’s Tuesday meeting, at which Dauber was not present, that he felt she “misled to the point where she even actually might have lied to us.” Laufer later apologized for saying Dauber may have lied.

The misleading statement came when Dauber was discussing how sexual assault cases handled by Judicial Affairs are civil cases, which she incorrectly said never require unanimous agreement among jurors.

“There is no such thing as a unanimous requirement in any civil case anywhere, ever,” Dauber told the assembly last week. “We just don’t have unanimous requirements in civil cases.”

According to a Department of Justice Statistics Special Report on civil justice in state courts from 2004, 27 states require unanimous convictions in civil cases. Only 11 require a three-fourths majority and all others, except for Montana, require a higher percentage of agreement (Montana only requires two-thirds agreement).

Dauber responded in an email to The Daily that the 2004 report is accurate, but warned of intricacies in the legal process, as different courts have different rules across states. No such nuance or qualification was included in her original statement at the meeting.

In addition, Dauber said that by “we,” she was referring to the State of California, which she felt was clear given Stanford’s location. Laufer, Senator Alon Elhanan ‘14 and Stanford Daily Senate reporter Julia Enthoven ‘15 all stated that no such clarification was conveyed during that part of the meeting. All three stated that they were under the impression Dauber was speaking generally about the United States.

The ARP represents a change in the Judicial Affairs Committee’s procedure regarding trials of students who are accused of sexual assault, sexual violence, relationship violence and stalking.

Under the new ARP, three of the four “reviewers” would be required to agree in order to decide a student’s case, which is consistent with current University policy. The Senate and Graduate Student Council (GSC) are currently deliberating whether to approve the pilot program ARP.

Dauber commented on The Daily website, accusing the publication of publishing false accusations against faculty members after The Daily included Laufer’s quote in a Wednesday article (“Senate debates use of leftover funds,” April 25). Dauber wrote in the comments that the information she gave the Senate and Graduate Student Council was “entirely correct.”

A 2004 report from the American Bar Association states that, “In civil cases, jury decisions should be unanimous wherever feasible. A less-than-unanimous decision should be accepted only after jurors have deliberated for a reasonable period of time and if concurred in by at least five-sixths of the jurors.”

The report qualifies that a lesser number of jurors is acceptable if agreed upon by both parties.

Laufer, Elhanan and Enthoven all said that the overall message of Dauber’s comments was that nowhere in the United States are civil cases required to be decided by unanimous vote.

It is unclear whether the ARP seeks to conform to Federal or California guidelines or employs a hybrid of the two. The recommendation to lower the standard of proof to preponderance of evidence came from the U.S. Department of Education Office of Civil Rights, yet federal guidelines for civil jury cases require unanimous agreement.

In California a simple three-fourths majority is required, though juries on California civil cases consist of 12 jurors, while Judicial Affairs currently uses four jurors. No state currently uses four jurors for civil court cases.

 

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About Brendan O'Byrne

Brendan is a senior staff writer at The Stanford Daily. Previously he was the executive editor, the deputy editor, a news desk editor and a writer for the news section. He's a history major originally from New Orleans.
  • cardcounter

    Really?  This requires a 14 paragraph article???? It is much ado about nothing.  The only issue is a misunderstanding about the word “we”?

  • @cardcounter

    The fact that this decision determines policy for sexual assault cases on campus and the legal expert changing the policy was misleading is why this is so important. Sexual assault policy is pretty important stuff, and misinforming the deliberative body deciding upon it is big news.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Yes, evidently it is about what “we” means — I was speaking about the civil jury rules in order to analogize the new Stanford policy to what would be done in the state law context and I think it was pretty clear what I was saying but the Daily seems determined to gin up some controversy.  Nice.

    The sad thing is that I really wish we were talking instead about what kind of sexual assault policy we should have.  I really hope that the students will demand that they have that discussion. This entire thing about civil justice is a real red herring, since my mention of California tort law was just an analogy, and I probably should have been a lot more elementary in my explanation given that I was talking to undergraduates who don’t necessarily have the background knowledge in law that the students in the law school do, and that may have led to a misunderstanding. Of course, genuine misundertandings are easy enough to correct with a clarifying call or email, unless you prefer the controversy to the substantive discussion.

    Since the Daily is obviously off in some alternate reality in which the “news” is whether or not a professor was totally clear, and the “source” is their own reporter (!), I will tell you what I think is actually important. You can decide for yourselves what you think about this.

    Sadly, real data was presented at this meeting that was never reported in the Daily about the lived experiences of victims of sexual assault at Stanford.First, the fact is that for many many years Stanford’s sexual assault policy has been badly in need of revision.  Between 2002 and 2009, Stanford reported 104 sexual assaults under the Clery Act to the Department of Justice.  Of these, just 16 were reported to the OJA. And of those, only 3 went to a hearing. That’s 3 hearings, for a reported total of 104 rapes, or less than 3%. That is because there were structural features of Stanford’s policy that made it very unlikely that victims would pursue any action.  This left victims feeling unsafe, and potentially put the entire Stanford community at risk since we had such a high rate of sexual offense with no action taken by the University.

    These factors led the BJA to work over a period of years, in a process that involved faculty, staff and students, in developing a revised plan.  The plan may not be a perfect one, because no plan is, but it is very good. And it is working.  The process is much more efficient, and much safer for victims.  

    The data show these results: in the one year since the ARP has been in effect, there have been 21 rapes reported under the Clery Act to the Justice Department, 13 reports to OJA, and 12 hearings.  In 9 of the 12 cases the alleged perpetrator was found responsible, and in 3 the alleged perpetrator was not found responsible.  This was a rate of  57%, compared with the 3% for the prior period.

    Thus, in one year of operation, the OJA had 4 times the number of hearings provided in the 7 previous years combined.  

    There is only one issue under discussion right now but it is an important one; whether Stanford should break with all its past judicial affairs traditions and implement a requirement that the alleged victim of a sexual assault must persuade all the reviewers on a panel that she was raped in order to find the alleged perpetrator responsible.  

    What this would mean is that rape would be the only offense at Stanford for which unanimity is required.  Cheating does not require unanimity.  Plagarism does not require it.  Nor does physical violence of other kids — only rape would require unanimity.

    The BJA decided in its deliberations to have smaller panels than the typical 6 for 2 reasons.  First, that it would be less intimidating for both parties and second, that it is frankly difficult to get enough trained students to staff the panels if we require more than that and still complete the process in a timely manner.  However, students on the BJA were very insistent that the panel composition be majority students.  This means that we have 4 panelists, 3 of whom must be students, and 3/4 of whom must agree on a finding of responsibility.

    One student on the panel argued strenuously for unanimity, and believes that this rule will lead to false findings of responsibility. I do not agree with this assessment but in deference to his concern I built in a 2 year review that guarantees an empirical review in 2 years of the data surrounding the working of the ARP in order to ensure that the ARP is working correctly and if not to specifically reconsider that issue.  I feel that this safeguard, together with the right of the responsible student to appeal, is a fine and well-working process.

    We felt that this struck the right balance on all the factors we considered: it adheres to Stanford’s tradition of student majority, and also Stanford’s tradition of not requiring unanimity (which is also consistent with CA civil procedure, the subject of this ridiculous article); it increased intimacy, and maintained efficiency of timing.  That last factor works to the benefit of the accused student who does not have to have an accusation hanging over him for a  long period of time as the hearing process grinds on.  For all these reasons, the BJA feels that this strikes a good balance and is a good process. 

    And, as I said above, it is working well, and we have met the goal of providing something that is a real benefit to the Stanford Community.

    So please do not be distracted by this sideshow and please give careful consideration to the important issue of sexual assault at Stanford. 

    Sincerely, 
    Michele Dauber

  • anon

    In response to the below quoted section of your comment, I actually think there are 2 issues under discussion: 1. unanimity and 1. preponderance vs. beyond a reasonable doubt (BRD). While the other violations you mention (cheating, physical violence, etc) do not require unanimity, they do use the BRD standard and that is a significant difference. I don’t think there would be much contention if ARP used 3/4 and BRD (that is how it was initially correct?).
    “There is only one issue under discussion right now but it is an important one; whether Stanford should break with all its past judicial affairs traditions and implement a requirement that the alleged victim of a sexual assault must persuade all the reviewers on a panel that she was raped in order to find the alleged perpetrator responsible.
    What this would mean is that rape would be the only offense at Stanford for which unanimity is required. Cheating does not require unanimity. Plagarism does not require it. Nor does physical violence of other kids — only rape would require unanimity.”

  • anon

    And ARP switched from BRD to preponderance in the middle of the trial I think? Hasn’t it been in operation for two years (since spring 2010)? Can you post stats (number of cases, convictions, acquittals, etc) in order to compare ARP when utilizing the two different standards?

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Fair enough.  It is true that we would be using a preponderance standard.  I personally (and I said this at the meeting as well) do not really fetishize the burden of proof all that much.  I encourage you not to get too wrapped around that particular axle, since I think that people tend to use common sense judgments about responsibility no matter what the instructions are about the burden of proof. 

    The US Department of Education office of Civil Rights instructed Stanford to lower the burden of proof in order to be more fair to victims.  How then would it appear if what we did in response to that mandate was to at the same time and lacking any evidence that it is necessary raise the requirement to a unanimous determination?  To me that looks as if we are trying to evade the instructions of DOJ.  Indeed, I think the number of people who have said that very thing in various emails and recorded statements is somewhat damaging already.  A number of people both inside the BJA and on the ASSU have stated that they want to impose unanimity to “counteract” the lowering of the burden of proof.  How do you think the Office of Civil Rights will react to an effort by Stanford to counteract its mandate?  Not well would be my guess.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    I don’t know the precise figures as yet. The reason we wanted to have the 2 year review is in order to ensure that we had enough experience in order to see what was really happening and proceed carefully and deliberately through iteration. 

    When you are innovating you want to try to change as few things as possible at once so that if you do discover a problem you can have some hope of identifying the mechanism causing the problem and then a manner of addressing it.  Hypothetically, if we were to change the burden of proof AND the voting requirement at the same time, and then discovered that once again victims were not coming forward, how would we know the cause of that fall-off or how to address it?  I advocate making small changes, moving incrementally, acting conservatively, and evaluating where we are along the way.  

    So far, the OJA reports that there is no issue and things are working well. There is no current cause for concern. However, there have been relatively few cases. If we should see the number of split decisions rise (right now they are almost all unanimous anyway) or the number of appeals and reversals spike, then we will be able to do an evaluation and determine the cause and remedy for the problem.  

    Please bear in mind that there is an appeals process that allows any student who is found responsible to appeal either the finding or the sanction or both. 

  • anon

    I am not a lawyer or even a law student so please correct me if I am wrong. From some quick research, it seems jury instructions and the burden of proof does make a difference. Some articles I found:

    1. http://www.coll.mpg.de/pdf_dat/2008_36online.pdf
    2. http://pss.sagepub.com/content/1/3/194.short
    3. http://www.scribd.com/doc/91440005/brd

    In regard to the US Department of Education Office of Civil Rights – what if they have made a mistake in their instructions? My understanding is that using a higher standard is not illegal correct? It might be in violation of Title IX according to the current DOE administration. What if the next DOE administration reverses the decision? Let’s assume preponderance is the standard that should be used. Let’s assume next year there is a republican administration and DOE recommends using BRD. Should Stanford simply switch to using BRD? The Stanford community (and a student body vote to change the Constitution if it comes to that) should consider what DOE has instructed and make a decision as to whether or not lowering the standard is the correct thing to do. If people come to think DOE has made a mistake, then Stanford should not follow the instructions. Also, I don’t think DOE has recommended what sanctions are appropriate to go along with the preponderance standard. Maybe Stanford should request DOE clarify:

    1. What the vote requirement should be 
    2. What the sanctions should be

    And to be clear – I’m no advocating for a specific standard of proof or voting requirement. I think this is a very important issue and thus this discussion is important so people understand the issue. I’m actually torn on the topic – I believe Judicial Affairs was badly broken (as your stats relay) and the ARP is a huge improvement, but the burden of proof change concerns me. I worry about possible false convictions and sanctions that I feel are more serious than what a civil case results in. I know you have argued the sanctions are equivalent to a monetary sanction and the reputation damage is also analogous to the public aspect of a civil case, but to me it seems that being suspended/expelled from Stanford is worse than simply paying a fine. I would much rather pay a fine than be forced to leave what now feels like my home where my friends are etc. I wonder if there is any precedent or research on this issue? Maybe the standard should be in the middle of preponderance and BRD? Maybe it should be “clear and convincing?”

  • anon

    I agree with you on changing a single variable at a time. My understanding is all ARP cases have been decided with a 3/4 vote requirement so you can’t do a 3/4 vs unanimous comparison, but I think you can do a preponderance vs BRD comparison. My understanding is:

    Year 1. April 2010 – April 2011: (when the DOE letter came out) BRD 3/4 was used.

    Year 2. April 2011 – present: preponderance 3/4 has been used.

    I think we can do a comparison of Year 1 vs. Year 2 and compare preponderance vs BRD and look at:

    1. number of cases files
    2. number of acquittals
    3. number of convictions
    etc

    Please correct me if I’m wrong about anything. I’m not on the BJA so I’m not intimately familiar with how ARP has progressed other than basically from what the Daily reports.

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Your story inaccurately reports that “Dauber responded in an email to The Daily that the 2004 report is accurate.”  I never said that (though I would imagine that it is accurate, if hard to read). You never asked me whether the table was accurate.  You also did not ask me whether *your counting* of the various state rules reported in that table is accurate. What I said about the table is:

    “In terms of that table you need to be careful because not every court in every state tries personal injury cases and without some research there is no way to be sure — many states list different rules per court.”

    I did NOT say that your count was accurate. To the contrary, I said that without further research it would be impossible to know since the table is quite complex, shows different courts within each state (not different courts across states as your story inaccurately reports my view) and without knowing more it would be hard to say.  Also I informed you that there can be wrinkles in local practices that would not be necessarily evident in that table, including variation by agreement of the parties. 

    I concluded by saying: “The more simple point is that:

    Fortunately we don’t have to know the rule in North Dakota with certainty since this is California.”

    You weirdly just chose to print that I affirmed that the table and your use of it was accurate even though I didn’t. 

    Tomorrow I am sure there will be a story reporting that I am an axe murderer so I guess I should just stop posting or responding to your emails.  And I would except that the issue that is actually on the table is addressing campus rape. 

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Hi Anon,
    It is not up to the ASSU or the students to decide whether or not to comply with the DoE guidance.  University Counsel and the President’s Office have already made that decision.   In terms of my view, it is the right decision.  Stanford was one of only 2 or 3 schools using beyond a reasonable doubt and it is very unlikely that any future administration would change it back to something that only 3 schools were using.  What is the constituency for that change?  Everyone else had already changed long ago, if they ever even used the higher standard at all.  Thus, your hypothetical is too implausible to consider.  Even if it was not however, the argument that Stanford should refuse to make a change demanded by the DoE is impractical.  

  • http://www.facebook.com/profile.php?id=515270985 Michele Dauber

    Dear Anon:

    I understood your question and already answered it to the best of my ability.  There have not yet been enough cases to report on (and in fact, reporting on such small numbers of cases in the detail you are requesting trenches on confidentiality. Without any risk to confidentiality I can say that to my knowledge based on my information from the OJA there is no worrisome trend at this point. That is why we will look again in 2 years and evaluate outcomes in order to ensure that there is no pattern once we have enough data to do a valid analysis.  That’s really all I can say at this time.

  • anon

    Thank you for clarifying. I was worried there wasn’t enough data yet. It seems like there may well only ever be 1 year of ARP 3/4 BRD data so it may never be possible to actually do the comparison because there will never be a large enough 3/4 BRD sample.

  • anon

    I don’t exactly agree but I want to thank you for your time and lending your expertise to this important discussion. It has been helpful to understanding the issue.

  • Heck_of_a_job

    Seems like the headline should be “ASSU Senator apologizes to Professor for suggesting that she lied.” What’s ironic is that this piece is way more misleading than what Professor Dauber apparently said. For example, lines like this one, “Laufer, Elhanan and Enthoven all said that the overall message of Dauber’s comments was that nowhere in the United States are civil cases required to be decided by unanimous vote.” What is the “overall message”? Did she say it or not? This piece reads like the “reporter” is getting paid by the inch, and probably being overpaid at that.

  • Student

    The Professor did mislead… the Senator called her out, and was right. 

  • MS Student

    Yeah, why is this an article again?

  • anon

     you are seriously a troll.

  • Mark

    Yeah, this bitch is cray.

  • Student1

    Ok, say that on your own computer lol 

  • Guest

    this comment sounds a lot like Professor Dauber herself.

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