By Conor Friedersdorf at The Atlantic
Earlier this month, Stanford University senior Justin Brown published an opinion article in The Stanford Daily claiming that he was sexually assaulted by a female classmate. His account came amid an ongoing debate at Stanford about how best to handle allegations of rape, sexual assault, and sexual harassment. Those who hold that perpetrators of sexual assault escape with too little punishment have rallied around Leah Francis, who protested when a classmate she accused of “forcible rape” was found responsible in a disciplinary process, but permitted to return to campus upon completing “a five-quarter suspension, 40 hours of community service and completion of a sexual assault awareness program.” She declared in an open letter, “Stanford did not expel the man who raped me.”
Emily Bazelon of Slate later reported that from 2005 to 2011, nine Stanford students were found responsible for sexual assault. One was expelled. “The other eight received suspensions ranging from one quarter to eight quarters,” she wrote. “The average sanction for sexual assault at Stanford is a four-quarter suspension.”
At the same time, Stanford has been faulted by a largely different group of critics for offering inadequate due-process to students accused of sexual misconduct. “In 2011, a male student was found guilty of sexual assault and suspended for two years after Stanford determined that his accuser had been intoxicated during a sexual encounter, violating Stanford’s sexual assault policy which states that one cannot consent to sex if ‘intoxicated’ to any degree,” the Foundation for Individual Rights in Education reported. The organization objected that the burden of proof needed to find guilt was changed in the middle of that student’s case.
The op-ed that Justin Brown wrote describing an encounter with a female classmate does not fit neatly into either camp. He believes that Stanford has handled his allegation poorly and failed to properly discipline the accused. But he also insists that though she assaulted him, he does not want her expelled or suspended.
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Before reflecting on Brown’s story, which cannot be independently verified but that we’ll treat as accurate for purposes of conversation, let’s hear it in his own words.
He writes of the night in question:
I arrived at a party with a group of friends and struck up a conversation with a girl. We both were a bit drunk, but not to any dangerous levels, and slowly moved our conversation to the dance floor. We started dancing, then making out, then before I knew it, her hand was down my pants. I was surprised, as I hadn’t given her consent to take things a step farther, but I was nevertheless okay with it. Time passed with us together on the dance floor until she began whispering in my ear that she wanted to have sex. While I was enjoying myself, sex was not on the agenda for the night. I took a step back and realized that her friends were gone and she was seemingly alone at this party with me. Even though I didn’t want to end the night in her bed, since she was drunk, I felt I should help her make it back to her dorm.
We started walking home together, but our walk was prolonged by frequent stop-offs. We’d take a few steps holding hands, then take a moment to move off the path and make out with each other for a bit. After a while, these stop-offs became less of a mutual decision and more of a demand from her. I began denying her advances; it was late and I just wanted to get her home safely so I could get some sleep. She continued to engage with me and I denied her requests with a verbal “no” several times. After several failed attempts to push off her advances, we got to the point where I was trading kisses and gropes for steps back to her dorm. Several times her hands went down my pants, and I was not okay with it. I did my best to stick to my “no” every time she demanded more, but at each denial she would stop dead in her tracks and refused to walk with me unless I complied. I felt stuck. Dragging her back to her dorm with her fighting against me simply didn’t feel right. Physically fighting her struggle was not the safest means to that end. But, it didn’t feel right to abandon her there either. She was drunk and could not be left alone in the state she was in. So I felt I had only one option: I complied.
When I got back to my dorm at 2:30 that night, I was confused. Didn’t I go out wanting to engage in sexual contact? Shouldn’t I feel proud and confident that someone wanted me? As a man, shouldn’t I always want sex? This had been what I wanted for so long, but once it was in front of me, it simply didn’t feel right.
I don’t fault her for my change of heart; I fault her for not listening to my clear “no” several times after I made my final decision. Was the situation handled perfectly? No. I was confused, horny and intoxicated. I wasn’t properly educated to even understand that this experience would qualify as sexual assault. But even with all of these things in play, the fact of the matter is that my “no” was not respected. Sure, she didn’t use force, but what was I supposed to do?
Brown goes on to relay why he came to believe that this constituted sexual assault:
About eight months had passed since my assault before I even considered the gravity of what happened that night. I relayed the experience to a few friends and at first, we nervously laughed about it. It all just seemed like a joke. Trading kisses and gropes for steps back toward her dorm? The whole situation seemed laughable, all centering on the inconceivable image of a horny college male denying a female’s sexual advances. In June, I started asking why the events happened even though I said no. It didn’t seem like sexual assault. I wasn’t physically beaten or forced to engage with her. This wasn’t some traumatic event that threw me into a deep depression. But Stanford’s current definition of sexual assault states, “Sexual assault is the actual, attempted or threatened unwanted sexual act, whether by an acquaintance or by a stranger, accomplished against a person’s will by means of force (express or implied), violence, duress, menace, fear or fraud. If coercion, intimidation, threats and/or physical force are used, there is no consent.” Actual unwanted sexual act? Check. Coercion? Check. There was no consent.
If you received a call from a Stanford student who related all of the foregoing, how would you react? Brown reports that the people he contacted varied in their responses. He spoke first to someone at the YWCA sexual assault center on campus:
I told my side of the story and she listened attentively until I ended with the simple question, “Does this qualify as sexual assault?” After a short moment acknowledging the difficulty of all the factors at play, what she said left me flabbergasted. “You just have to be careful,” she said to me plainly. She began to outline how situations like these are difficult when alcohol is involved, but when I reiterated that I clearly said “no” and felt trapped in the situation she continued to astound me with her suggestions at what I should or could have done. “You could have just left her,” she insisted. “If I were a man in your shoes, I would have definitely called 911.” At this point it was tough to hold back my frustration. I was calling this hotline because I was trying to figure out if what I experienced was sexual assault. How could I have called 911 in the moment if I didn’t even know I was being sexually assaulted?
I continued and began speaking of how I felt my gender could have played a role in the incident and how it was beginning to color our conversation. In response to this she began explicitly insisting that the woman in my case might not even know what happened that night and could accuse me of sexual assault. I had gone from possible victim to possible attacker in this woman’s eyes…
She never once validated that this was indeed sexual assault.
Frustrated, he ended the conversation. He later spoke to the Sexual Assault and Relationship Abuse Office on campus, which he found to be much more supportive. Its director told him that what he experienced does constitute sexual assault, offered counseling resources, and explained how he could file charges if he chose.
He opted against doing so. “While Stanford has a concrete definition of sexual assault, the SARA Office affirmed that before even consulting legal definitions, it is first up to the survivor to define what happened based on how they feel,” he wrote. “I personally do not want to press charges; we both strayed blindly into grey areas that night. Luckily, I came out the other side without any traumatic emotional scarring or depression. However, not everyone may be so lucky if put in this situation.”
What did he want? For Stanford to educate the woman who reached down his pants, but not to expel her, as would happen if advocates of harsher sanctions had their way.
As he put it:
Never once have I called this woman my “attacker” or “assailant” because I didn’t emotionally respond as though it were an attack or an assault. To me, she’s just a student that made a mistake. However, she does deserve to know that what she did is defined as sexual assault. What she does not deserve is expulsion.
We need to understand that we can’t solve these grey issues with black and white statements and punishments. By demanding a “strong presumption in favor of expulsion” …we begin to force the hand of the administration in cases where they should instead be using a discerning eye… In my case, I don’t believe she had any especially malicious intent during the incident and her presence on campus does not present any imminent danger to me… She deserves to be educated about her mistakes, but this education remains unavailable to her as a result of the punitive approach proposed by the ASSU. The burden of providing her with this education should not fall onto me simply because I disagree with the recommendation for such a harsh punishment.
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Brown’s newspaper piece held my attention in part because it forced me to grapple with so many confounding questions about sexual assault policy on campuses.
- If a person says, “No, you may not grope me,” but subsequently says, “Okay, fine, I’ll let you grope me once more if you take another 10 steps toward home,” does that constitute coercion of a sort that should be punished? Or should punishment be reserved for those who coerce with a threat of force or harm?
- Did the student have any obligation to see his classmate home safely?
- Brown writes both that Stanford has a clear definition of sexual assaultand that “it is first up to the survivor to define what happened based on how they feel.” Can both of those things be true? If the writer decided to define what happened that night as “not sexual assault” would it be so? And if what happened to this student was sexual assault under the controlling definition, is it appropriate to call him a “survivor” given his own assurances that he suffered no danger, injury, or significant emotional trauma?
- Was this student well-served, personally, by coming to believe, 8 months after the fact, that what happened to him was best characterized as a sexual assault? To what extent, if any, did he decide to reinterpret his experience, and to what extent was it a matter of involuntary, dawning realization? Does the distinction matter? Should people like him be encouraged to revisit non-traumatizing events that constitute sexual assault so that they see it as such? If a friend or therapist were asked to help him determine if he should consider himself to have been assaulted, what advice should they give?
- Is the degree of trauma suffered by a sexual assault victim a relevant factor in if, or how severely, their assailant should be punished? How heavily should it weigh?
The response of the YWCA sexual assault center also deserves additional scrutiny. When the counselor began “insisting that the woman in my case might not even know what happened that night and could accuse me of sexual assault,” Brown took that as victim-blaming and an illustration of a sexist double-standard.
But there’s a more charitable way to interpret her words: as a well-intentioned, “let’s be realistic here” warning about reality. As noted above, Stanford’s sexual misconduct policy holds that “intoxicated” students cannot give consent, and doesn’t specify how intoxicated one must be (going beyond California state law, which says the “incapacitated” cannot give consent). The student in this case tells us he felt the woman that he was with was too drunk to walk home alone. He also tells us that when they stepped off the path to kiss and grope at the beginning of their walk, he was okay with it, but that he eventually changed his mind.
What would happen if the woman in this case decided to file a complaint, arguing that her intoxication rendered her unable to consent to kissing and groping sessions during the early part of the walk when he, too, was an initiator? If Brown’s account of that night is accurate, it would seem perverse if both of these students were ultimately found guilty of sexually assaulting one another. But given how the rules are written at Stanford and how they’ve at times been applied, it seems that such an outcome is plausible, even if not the likeliest scenario. Were I Brown’s father or big brother I’d have urged him to weigh that risk.
Today’s uncertainty about what, precisely, a campus disciplinary body might consider punishable misconduct ties back to the larger question that inspired Brown to write his op-ed. He is ultimately taking a stance on the following question: Should those guilty of sexual assault be expelled under something like a zero-tolerance standard? Or is a stern, educational talking-to sometimes appropriate?
His personal testimony is a confounding case study. So many people, myself included, tend to conceive of sexual assault as a very serious crime committed by a predatory perpetrator who victimizes a devastated survivor. The outpouring of passionate support for anti-sexual assault campaigns is premised on that understanding. But here is a man citing his experience as a victim—a status that inclines many to avoid questioning his narrative—to argue that his sexual assault proves it can be a non-catastrophic act carried out by a non-dangerous person with no malicious intent, and that the victim’s reaction might be, “the whole situation seemed laughable.”
How we ultimately define sexual assault is a choice–one that combines elements of prevailing culture and law, of connotation and denotation. Insofar as a community adheres around a notion of sexual assault that tends to involve high degrees of predation and trauma, the stigma against it will remain relatively powerful. As “sexual assault” is broadened to encompass gray areas that combine low degrees of predation with victims who aren’t traumatized, the stigma may diminish. Expelling the woman in this case would cause even her accuser to object.
What’s most striking to me, as someone from an earlier generation of college students, is not this student’s aversion to a punishment for the accused. One commenter observed that since, “there was no great or permanent harm done to him and as she did not act with malice, he reasonably concludes that he, in turn, should cause no great or permanent harm to her… Instead, he looks at the event, recognizes where bad decisions were made, accepts responsibility for his actions and decisions that contributed to the situation, and seeks to use the unfortunate as a learning experience to enlighten and not as a legal club with which to punish.”
That’s an understandable reaction.
More remarkable is the extent to which even this heterodox thinker, who offers a forthright, unsparing critique of his university and of its disciplinary norms, was simultaneously so eager to resolve problems through official channels. At a time of confusion, he turned to campus administrators to help understand his own experience. What he wanted most of all was an administrator who would validate his understanding of what happened during a traumatic moment. How many older readers would’ve thought, as undergrads, to cast an administrator in those roles?
Although Brown didn’t want administrators to punish the woman who stuck her hands down his pants after he said no, he did want them to explain to her why it wasn’t okay, because he wanted that done and didn’t feel that it was his job to do it. His generation’s notion of normal involves college administrators—people paid to safeguard the interests of multi-billion-dollar institutions—intervening in the sexual lives of students to a much greater extent than they did in the recent past, even as the normative judgments of administrators are both policed and exalted.
There is no telling how this will turn out.
Schools: Stanford University