Today, both FIRE’s press release and Samantha’s op-ed in the New York Post pry the lid off an ugly story at Stanford University, where due process rights and fair hearings have seemingly been abandoned for students accused of sexual misconduct.
It’s hard to know quite where to begin, but let’s start with the fact that Stanford University is training student jurors in sexual misconduct cases to believe that "act[ing] persuasive and logical" is a sign of guilt.
That’s not all: Stanford also instructs campus tribunals that being impartial is the equivalent of siding with the accused. The training materials for Stanford’s "Dean’s Alternative Review Process," which handles sexual harassment and misconduct cases, inform student jurors that they must be "very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence," claiming that "[t]he great majority of allegations of abuse-though not all-are substantially accurate," and that "an abuser almost never ‘seems like the type.’" Much of these training materials are comprised of an extended excerpt from a book titled Why Does He Do That: Inside the Minds of Angry and Controlling Men, and unfortunately seem to be less concerned with making sure the jurors serve as impartial decisionmakers than with pushing the idea that male students accused of sexual miconduct should be presumed guilty.
Compounding these problematic training materials is the fact that per Stanford policy, sexual assault occurs "when a person is incapable of giving consent. A person is legally incapable of giving consent … if intoxicated by drugs and/or alcohol." In other words, any sexual activity that occurs when one or both parties is intoxicated to any degree constitutes sexual assault—a definition at odds with both California state law and normative assumptions of the mechanics of adult consent. Under Stanford’s policy, then, if alcohol has been consumed, sexual assault has taken place even if the sexual activity in question was explicitly and continously agreed to by parties capable of making rational, reasoned decisions. In fact, under Stanford’s policy, if both parties are intoxicated during sexual activity, they are necessarily both guilty of sexually assaulting each other. Technically, then, drinking a couple of glasses of wine with one’s spouse before any kind of sexual activity could easily render both participants in violation of Stanford’s sexual assault policy.
Given this "training" and Stanford’s obviously flawed understanding of consent, it should come as no surprise that last semester the university found a male student guilty of sexual assault solely because the judiciary panel determined that his accuser, a female student, was intoxicated (as was the male student). The male student, who wishes to remain anonymous, came to FIRE for help.
The disciplinary panel that heard the student’s case had all the information it needed when it found that his accuser had been intoxicated. The panel didn’t even bother determining whether the sex was actually consensual. No, because Stanford’s findings of fact merely concluded that "the impacted party was intoxicated by alcohol," by definition the sex therefore could not be consensual. The guilty finding serves as a sharp contrast to the response of both the Palo Alto police and prosecutor. Their preliminary investigation turned up insufficient evidence of sexual assault, so the prosecutor declined to pursue charges and the male student was not detained for questioning.
The student’s situation was made worse still by Stanford’s receipt of the April 4 "Dear Colleague" letter from the federal Department of Education’s Office for Civil Rights (OCR), which requires all colleges and universities that receive federal funding to reduce due process protections for students accused of sexual misconduct. While FIRE has repeatedly warned that the new requirements will drastically impact students’ fundamental rights, and responded directly in a May 5 letter to OCR, Stanford nevertheless felt forced to immediately drop its prior "beyond a reasonable doubt" evidentiary standard for the OCR’s mandated "preponderance of the evidence" standard (approximately 50.01% certainty) — despite the fact the male student’s case was ongoing at the time.
Under the preponderance of the evidence standard — our judiciary’s lowest — the accused student was found guilty and suspended for two years. And because OCR’s April 4 letter also requires schools to grant the accuser the right to appeal a judicial decision if the accused student may do so, the Stanford student’s accuser has appealed the decision, asking for permanent expulsion. (The male student is also appealing; both appeals are pending.)
FIRE wrote Stanford President John Hennessy on June 20, protesting the violations of due process and basic fairness in Stanford’s sexual misconduct policies and procedures. On July 9, Associate Vice Provost and Dean of Student Life Chris Griffith responded by email, declining to discuss the matter with FIRE (despite having a waiver of the student’s privacy rights) but promising to "substantively address" FIRE’s objections in the student’s appeal. Griffith also argued that Stanford had no choice but to immediately lower its standard of proof upon receiving the federal government’s letter. Griffith also promised to "review" Stanford’s policies and training materials this summer.
Unfortunately, this will be far too late for the Stanford student. As Greg, a Stanford Law graduate, says in today’s press release: "One of the most basic tenets of due process is that the accused deserves a hearing in front of an impartial panel. My alma mater’s ‘training,’ however, ensures that this panel is biased against the accused. Add to that both the recent, unwise ‘guidance’ from the Department of Education’s Office for Civil Rights, and Stanford’s policy that makes virtually any sex after drinking tantamount to rape, and the accused have little hope of fundamental fairness."
If you’re outraged by Stanford’s judicial proceedings here, check out our Take Action page and tell President Hennessy what you think.
Of course, we’ll keep you posted on any further developments here on The Torch.