Just months after revamping its handling of campus sex assault cases, Stanford University is coming under criticism from victim advocates for setting up a case-review system that some believe favors the alleged perpetrator.
Under the new process, which was set up earlier this year and based on recommendations by a task force, a panel of three must decide unanimously whether an assault took place, and if so, whether the offender should be suspended or expelled from school. Critics say that that high standard tends to give the accused an advantage and ultimately creates an unsafe campus environment for the accuser.
“What if we required the accused to get three votes to win? What if two on the panel thought he was innocent, but since he didn’t get all three votes then he’s guilty?” asked Michele Dauber, a Stanford law professor who along with several of her colleagues wrote an open letter last year to the provost complaining about the new policy. “The howls of outrage would be very high and nobody for a moment would believe that that was fair.”
The policy came under renewed scrutiny in a New York Times article published Thursday that said Stanford is the one of just two peer schools in the U.S. News Top 20 that has such a stringent requirement to take action when sexual assault is alleged.
Stanford officials, who point out that the panel is part of an ongoing pilot project and is still being evaluated, insist the three-vote requirement is fair.
“What Stanford supports overall is due process and we want to have a process that is fair and equitable for both the accuser and the accused,” Stanford spokeswoman Lisa Lapin said Thursday. She pointed out that under the review process, the panel uses a “preponderance of evidence” standard to decide a case, a lower legal bar than “beyond a reasonable doubt,” which is applied under U.S. law in criminal cases. So if lower threshold tends to favor the accuser, said Lapin, the unanimous vote essentially serves as a counterbalance.
“Our process,” said Lapin, “is designed so that it provides due process for both parties.” She said of 16 cases reported so far this year, six went to the three-member panel, with three of the accused found to be responsible while the other three were not.
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The Times story focuses on a current and unnamed member of Stanford football team who was accused of sexually assaulting a fellow student in 2015. At the time, the university required a 4-1 vote of a five-member panel to take action in such cases, and two different panels voted 3-2 that an assault had occurred. As a result, the accused was not held responsible and is still playing on the powerhouse team, which faces North Carolina on Friday in the Sun Bowl in El Paso, Texas.
Dauber declined to speak specifically about the case. But generally, she said, instead of leading the nation’s universities in the area of investigating sexual assault on campus and ensuring the safety of its students, Stanford has instead created a more threatening environment for victims of attacks.
“You have to look at the process holistically, and when you see a series of hurdles and roadblocks, this becomes a very unfriendly place, if not one of the most unfriendly in the nation,” she told the Times.
Dauber and others find fault with several aspects of the university’s new system for investigating sexual assaults and determining responsibility of the accused aggressor. But the requirement of a unanimous vote is top of the list: the victim, they say, should not be obliged to garner three votes to win while the accused essentially needs to garner only one. Only Duke University among top peer schools has a similar policy.
Stanford administrators disagree with their critics.
“In deciding we wanted well-trained, long-term panelists, it made sense to go to a three-person panel,” Pamela S. Karlan, a Stanford Law professor who now chairs a sexual assault advisory committee, told the Times. “And having three people decide something by a preponderance of the evidence seemed to us the appropriate way of deciding whether a life-altering sanction should be imposed on somebody for his or her behavior.”
The debate over how schools implement Title IX regulations comes as reports of sexual assaults on campuses continue to rise. The number of forcible sex crimes reported on American college and university campuses more than doubled to 5,000 between 2001 and 2013, possibly because of more diligent reporting by victims and institutions. Reports increased by nearly 1,000 from 2012 to 2013 alone, according to report earlier this year by the National Center for Education Statistics, the Bureau of Justice Statistics and the American Institutes for Research, a nonprofit social sciences research group.
At Stanford, reports of sexual assaults on and around campus rose to 39 in 2015 from 21 in 2010, according to data Stanford compiles under federal law.
As it interprets Title IX, the 1972 law mandating equal access to higher education regardless of gender, the United States Education Department authorizes universities to carry out investigations of alleged sex crimes on campus, as well as complaints about sexual discrimination of any kind. But colleges are allowed to set up their own ways of doing this. Stanford’s panel is drawn from faculty and administrators.
In many cases, the university investigation is the only review such accusations receive; victims are often reluctant to go to police, especially considering the high standard to find guilt in criminal cases. The alleged victim in the case explored by the Times said she was simply hoping for a “no-contact order” from the university, which she could not obtain, and has temporarily left school to avoid the football player.
Meanwhile, critics of the school’s policy repeated a common mantra: for a university of its stature, whether it’s for research or excellence ranging from the humanities to social sciences and engineering, Stanford can do better when it comes to taking the lead in dealing with on-campus sexual crime.
“Everyone knows sexual assault on campus is a serious problem, and one that is very difficult to tackle,” said David Palumbo-Liu, a professor of comparative literature at Stanford and one of dozens of faculty members who have criticized the school’s policies. “Many of my colleagues are deeply concerned about it,” he said, “and want Stanford to be a leader in addressing this issue assertively.”
