After making modifications based on a variety of comments from the campus community, Stanford is launching a new process for investigating and adjudicating cases of sexual assault and other prohibited sexual conduct brought against students.
The new process, the Stanford Student Title IX Investigation and Hearing Process, will be implemented on a pilot basis beginning Feb. 1, 2016. It will replace the current Alternate Review Process.
Most elements of the new process were recommended last year by the Provost's Task Force on Sexual Assault Policies and Practices, an 18-member panel of students, faculty, staff and alumni. A comment period in the fall offered the campus community an opportunity to suggest changes to the draft process.
Key features of the process include:
- A unified process extending from investigation through adjudication of a case
- Beginning with an investigation by the Title IX Office of a reported incident
- Followed by a hearing by a panel of highly trained faculty, staff and graduate student reviewers to determine responsibility and discipline
- An advance, independent review of the evidence to be used in the hearing process, if requested by either party
- Legal assistance for students in the process who wish to have it
- Expulsion as the expected sanction for incidents of sexual assault
- And an appeal process for both parties involved.
Based on community feedback, the process being implemented:
- Includes more legal assistance than originally proposed
- Clarifies the services available to students whether or not they go through the process
- Includes nominations from the Faculty Senate for faculty panelists and consultation with the Graduate Student Council on the appointment of student panelists
- Assigns the Title IX Office, not a hearing panel, responsibility for determining ongoing accommodations for a student after a finding of responsibility
- May be adjusted further, however, during the pilot phase based on monitoring of other issues raised in the comment period – discussed more fully below.
As was the case with the current Alternate Review Process, the new process is being implemented on a pilot basis with the approval of the president.
Stanford Law School Dean M. Elizabeth Magill, who co-chaired the Provost's Task Force, will head an advisory group of faculty and students to receive information about the new process during its pilot period and work with university staff to assess its success. Other members of the advisory group include Professors Pamela Karlan (Law), Laura Roberts (Psychiatry), and Robert Weisberg (Law); graduate student Aku Ammah-Tagoe; and undergraduate student Claudia McKenzie.
The pilot period is expected to continue through August 2018. It can be adopted as ongoing university protocol with approval from the Board on Judicial Affairs, ASSU Undergraduate Senate, Graduate Student Council, Faculty Senate and the president.
"This process represents Stanford's commitment to care for students in crisis, to ensure a timely and fundamentally fair hearing process, and to give cases of prohibited sexual conduct the deeply serious attention they deserve," said Stanford President John Hennessy. "It also is a pilot process, and we will be monitoring it to ensure its success and to continue evaluating some of the issues that were highlighted in the campus community feedback."
The new process, one of numerous steps Stanford has taken to address sexual offenses on campus, is designed for cases in which a Stanford student is alleged to have committed a sexual offense, domestic violence, dating violence or stalking in violation of university policy. Universities are responsible for addressing such cases under Title IX, which prohibits discrimination on the basis of sex in educational programs. A police investigation and criminal prosecution may also occur separately to determine if conduct violated criminal law.
The current Alternate Review Process was adopted on a pilot basis in 2010 and on an ongoing basis in 2013. One of its objectives was to encourage the reporting of prohibited sexual conduct by providing a process separate from that for other judicial cases, such as Honor Code cases, recognizing the unique features of cases involving sexual offenses.
The new process preserves that overarching framework while adopting recommendations that came out of the deliberations of the Provost's Task Force – including streamlining the process, providing legal assistance, improving the hearing process, and establishing expulsion as the expected sanction for findings of sexual assault under university policy.
Many comments submitted about the proposed new process were supportive of it; others suggested changes. Below is a summary of key issues that were raised in the comment period and the ways in which those suggestions have been addressed.
Support for students: Some comments sought assurance that accommodations or protective measures will be available to students who have experienced a sexual assault or other offense but who choose not to bring a case through this process.
While this has been the university’s standard practice, the updated document includes a new Appendix C clarifying that university services are available and addressing which services can be provided under what conditions. A range of support, housing, academic and other measures is available. Some measures are not available in every circumstance, however; for instance, fundamental principles of fairness prevent the university from taking some actions affecting another student absent a finding of wrongdoing by that student.
In addition, based on community comment, the pilot process now assigns the Title IX Office, rather than a hearing panel in consultation with the Title IX Office, the task of determining ongoing accommodations for a student after a finding of responsibility.
Hearing panels: Universities adjudicate cases of prohibited sexual conduct in different ways. Some universities use a “single decision-maker” model in which one individual makes the key findings. The Task Force recommended that the university continue its practice of relying on panels to decide cases, but recommended that the panels consist of three members (instead of five) and that they make findings of responsibility unanimously (instead of four out of five being sufficient).
While some comments supported the Task Force recommendation, others suggested that hearing panels have four or five members and that findings of responsibility require a majority vote rather than a unanimous vote. Still other comments supported the requirement of a unanimous vote on findings of responsibility, but suggested that the panel size be increased to five.
The pilot process being implemented continues to reflect the original recommendation of the Task Force, requiring that three panelists from the university community reach a finding of responsibility (compared to the current four under the Alternate Review Process) and that they do so unanimously. The new process is premised on the fact that all reviewers will now be highly trained and serve for several years, filling a role more akin to judges than jury members, and that a smaller panel size is more welcoming for students who appear before it. In addition, the standard of proof for a finding of responsibility in these cases is "preponderance of the evidence" (that is, "more likely than not"), not the more stringent “clear and convincing” or "beyond a reasonable doubt" thresholds some people may be familiar with from legal contexts.
However, because the process is a pilot process, it can be modified as the university gains experience with it. Recognizing the concern expressed, the university will collect data on voting patterns on panels, and the advisory group will pay particular attention to cases in which panels reach majority, but not unanimous, votes on responsibility. The panel composition and decision threshold may be adjusted as the pilot progresses.
Appointment of panelists: Some comments urged a different appointment process for the pools of panelists from which individual hearing panels will be drawn.
The process being implemented states that the panelist pool "will be diverse and representative of the Stanford community" and now includes the provision that the provost will receive nominations from the Faculty Senate and will consult the Graduate Student Council, respectively, in making faculty and graduate student appointments of hearing pool members.
Rights of the accused: Several comments expressed concern about whether the rights of the accused would be adequately protected by the new process. Some comments objected to using the “preponderance of the evidence” standard to determine responsibility. This has not been changed, since the “preponderance” standard is specifically recommended by the U.S. Department of Education's Office for Civil Rights, the federal body that oversees Title IX enforcement.
Other comments objected to specifying expulsion as the default sanction for sexual assault, suggesting that this could be overly harsh in certain cases. The Task Force recognized this concern, which is why it recommended that expulsion be the “expected” sanction, rather than mandatory, allowing panelists to apply their judgment based on the facts of the case.
Legal assistance: The feedback period elicited some comments suggesting that the university offer more paid legal assistance to students in the process.
The process has been updated to provide up to 9 hours, rather than 6 hours, of paid legal assistance to either or both students participating in a case. Because the process is being implemented on a pilot basis, adjustments may be made in the future based on feedback from participating students and their legal advisors about whether this level of assistance is sufficient. Stanford, through the pilot process, will become one of a small number of universities to offer paid legal assistance for such proceedings.
Definitions of prohibited conduct: Some comments suggested broadening Stanford's definition of sexual assault.
The university is not making such a change through the implementation of the new process, though it is open to continued discussion of the best terminology to use for different kinds of prohibited conduct. A definitional change would not affect this adjudication process or the sanctions that can be imposed through it.
A definitional change would not affect this pilot process because Stanford already explicitly prohibits all unwanted sexual conduct. Stanford has one of the broadest ranges of prohibited conduct in the country (including bans on consensual faculty relationships with undergraduates and with graduate students in a faculty member's department or program, a policy which is not common across universities).
In addition, a finding that a student has engaged in any prohibited sexual conduct can under the new process lead to suspension or expulsion. Following a Task Force recommendation, hearing panels will consider the full range of sanctions for any offense. If a panel finds a student responsible for prohibited conduct, the panel will begin by considering the highest possible sanction – expulsion – and only afterward consider less severe sanctions. Expulsion will be the "expected" sanction under the process for the highest aggravated sexual offense – a nonconsensual sexual act involving intercourse or penetration that is accomplished by use of force, violence, duress, menace, inducement of incapacitation or knowingly taking advantage of an incapacitated person.
Non-hearing resolution: Some commenters suggested eliminating the option of a "non-hearing resolution" for cases in which there is no significant dispute between the parties about the case.
The pilot process preserves this option, which was recommended by the Task Force, given that it is only for cases in which there is no disagreement between the parties about the outcome or sanctions. Forcing all such parties into a hearing process would involve students in a stressful and time-consuming process unnecessarily.
In no case will the parties be required to engage in discussions together regarding a proposed resolution. And both parties will always have veto power over any proposed non-hearing resolution, with the option to take the case to a full hearing.
Sanctions: Some comments recommended providing hearing panels with detailed guidance on the sanctions appropriate for different kinds of conduct.
The Task Force anticipated that more detailed guidance on sanctions will result from experience with the pilot process. The process will be implemented initially as proposed, with sanctions determined through the judgment of panelists hearing a case, and with expulsion being the expected sanction for cases of sexual assault under current Stanford policy. The new process calls for the hearing panelists, after one year of experience under the new process, to consider whether more detailed guidance on sanctions is warranted.
January 21, 2016
