By Emily Bazelon at Slate
ow should colleges punish students whom they find responsible for forcible sexual assault? It’s one of the questions riling campuses this year, as student activists push universities—and Congress and the White House—to focus on the problem of non-consensual sex on campus. Should schools kick out students based on the findings of a disciplinary committee, or is suspension enough? In other words, should universities treat these students as rapists—even though they have not been convicted in a court of law—or as kids who messed up?
In the last month, students at Brown and Columbia have brought complaints against their schools under Title IX, the federal law that protects against sex discrimination, for allowing male students they accused to stay on campus. At Brown, the man in question had been found responsible for a number of violations of the code of conduct, including “sexual violence involving physical force and injury.” Meanwhile, a judge in North Carolina just temporarily blocked the expulsion of a Duke student who was kicked out of school for allegedly forcing sex on another student who was too drunk to consent.
Duke is one of a few schools with a tough new policy: If a student is found culpable for sexual misconduct, expulsion is the presumptive punishment. Most schools haven’t gone that far. Universities want to support victims, but they don’t want to freeze out the perpetrators. They get blamed both for not taking alleged victims seriously, and for not doing enough to protect the rights of the accused. A finding of culpability with a lenient sanction is one way to split the difference. But it’s an uneasy compromise that causes its own set of problems, as a case that unfolded this spring at Stanford shows.
Hundreds of students joined a protest rally on campus Thursday, demanding the administration’s attention and sharing the hashtag #StandWithLeah. Leah Francis is a 21-year-old Stanford senior who grew up in Juneau, Alaska. When she went home last winter break, her parents, who were divorcing, were selling the family house. On New Year’s Eve, she spent the day with them, dividing possessions and packing up. Upset and hoping that going out with friends would help, Francis went square dancing that night and drank rum and tequila. “I was so drunk that I went out walking in the middle of winter in Alaska in the rain wearing a dress, intending to travel 10 miles home on foot,” she later wrote in the account of the night she gave to Stanford.
On a local bridge, Francis ran into a guy she’d previously dated in high school, and also during her first and second years at Stanford, where he too was a student. She’d broken up with him in the winter of her sophomore year, she says, and she hadn’t seen him much in the two years since. But now she felt relieved to see him. “I wanted to feel comforted by a friend,” she told me. She asked if she could stay at his house nearby. (I didn’t find out his name in reporting this story.)
Inside, Francis took off her wet dress, got into bed, and, she thinks, passed out. When she came to, her ex-boyfriend was on top of her and pulling her underwear to the side, she says, about to force himself inside her. Francis had a tampon in; it got pushed into her cervix, sending her to the doctor because of severe pelvic pain over the following days. “I was terrified, shocked,” she told me. “Waking up underneath someone bigger than me, who was pinning me down—I was like a deer in headlights.”
Afterward, she was filled with a sense of betrayal and broken trust. “It was awful. Awful,” she said. “This has ruined my ability to trust people. It has rendered the world a place of completely unpredictable individuals for me.”
Back at school, Francis, who had been on track to graduate this spring, had trouble concentrating and fell behind in her classes. “It was really difficult for me when I saw him around campus,” she said. “It would end my productivity for the day and send me into a panic attack. I was supposed to take a full course load, take the GRE, apply to grad school. But I couldn’t manage it. I just became completely unstable.”
Francis met with Stanford’s Title IX coordinator to tell her story on Jan. 7. She decided to make a formal complaint through Stanford’s Alternative Review Process, a new disciplinary procedure, established last year for sexual misconduct cases because few students were coming forward under the old system, which students said was too trial-like. The ARP was designed to address this concern. A panel of reviewers, three students and two faculty or staff, hears from both sides in a series of interviews, rather than a face-to-face hearing. Instead of direct cross-examination, each party can listen by phone and submit questions, which are asked by the reviewers.
The standard of proof at Stanford for a finding of liability is preponderance of the evidence; in other words, the reviewers must find only that it’s more likely than not that the sexual assault or harassment occurred. Preponderance of the evidence is a common standard for civil liability, used for civil protection orders in domestic violence cases, for example. And it’s what the Department of Education decided Title IX requires, in a 2011 letter to universities that stressed their responsibilities to protect students from sexual assault and harassment.
Stanford law professor Michele Dauber, who helped design the ARP as the faculty chair of Stanford’s Board of Judicial Affairs, told me that many more students are making complaints than did so under the old system. That’s true nationally as well since the DoE letter clarifying the standard. Dauber thinks preponderance of the evidence is sufficient. “Reviewers are very careful and want to do the right thing,” she said. “No one thinks, ‘this guy is 51 percent responsible, so let’s throw him out of college.’”
But the preponderance standard is controversial, because it’s a relatively low threshold. Stanford used to use “beyond a reasonable doubt,” the standard for criminal conviction. Other schools used “clear and convincing,” which meant that adjudicators had to find that the sexual assault or harassment was “highly probable or reasonably certain.” Combined with procedural changes, like eliminating direct cross-examination, the lower burden of proof raises fears that male students will be falsely accused and railroaded by inept university panels, which, after all, are not made up of legal professionals. “They’re trying to set up a much lower-quality shadow justice system on campus,” said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, in an excellent piece by Michelle Goldberg in the Nation.
Francis’ assailant put on a defense. I don’t have the documents he prepared for the case but according to Francis’ summary of his statements in her appeal, which she put together to respond to his arguments—the student she says raped her told the ARP reviewers that he was asleep during the sex, “completely oblivious to the situation,” but also was “not forceful” and perceived “indications” of consent. He raised the idea that he suffered from “sexsomnia,” a supposed sleep disorder, in which people express uncontrolled sexual aggression while sleeping. A handful of rape defendants have tried to raise this defense in court in the United States, but it hasn’t worked. The Stanford reviewers didn’t buy it, either. They found the male student responsible for violating Stanford’s code against sexual assault and sexual misconduct, and for violating the school’s fundamental standards. Four out of five members of the panel found that “the sexual act was committed through use of force.”
That was on April 26. But then nothing happened to the student. Stanford didn’t say what sanctions would be imposed on him.
Days later, Francis was lying in her bed one night, in her room on campus with the lights off, when, she says, the door flew open. A man she didn’t know burst in. “He seemed intoxicated,” she told me. “He lunged toward me and shouted, ‘Don’t you think they’d be punishing him if he’d actually done it?’ Then he slammed both doors and left.”
“I think he was just trying to deliver that message,” Francis told me. Still, the arrival of an angry man in her room in the middle of the night was scary. Feeling increasingly frustrated and let down by the school, she talked to a friend who put her in touch with Dauber. On May 6, Stanford informed her of the punishment for the student she accused: He would be suspended for five academic quarters, including the summer. This meant he would not get his degree on time but would be able to walk in commencement this month, and then take a year away from school and return in fall 2015 for the advanced degree he planned to get. If he decides not to return to Stanford, then the only sanction would be the withholding of his degree for a year, contingent on his completion of community service and a sexual assault awareness course.
If that sounds lenient, it’s also typical for Stanford. From 2005 to 2011, nine students were found responsible for sexual assault. One student was expelled, for violations involving multiple victims. The other eight received suspensions ranging from one quarter to eight quarters. The average sanction for sexual assault at Stanford is a four-quarter suspension. (Stanford confirmed those numbers.) And it’s definitely not just Stanford: In a yearlong investigation published in 2010, the Center for Public Integrity found that across the country, “students found ‘responsible’ for sexual assaults on campus often face little or no punishment from school judicial systems, while their victims’ lives are frequently turned upside down.”
To Dauber, this is a serious problem, one she thinks is out of sync with how students and their parents imagine a college would deal with such situations. “Allowing a student who is responsible for sexual assault through force to remain on campus is not consistent with student and parent expectations,” she said. She’s in favor of a policy like Duke’s, which sets the default punishment as expulsion and then allows students who have been found culpable to explain why they deserve lighter punishments.
Stanford may move in that direction. When I emailed the university for comment, Lisa Lapin, associate vice president for communications, wrote back, “Expulsion currently is one of a range of potential outcomes of the disciplinary process for cases of sexual assault at Stanford, and we are discussing the option of imposing it as the presumptive outcome when there is a finding of forcible sexual assault.”
But in Francis’ case, the battle over punishment continues. With Dauber’s help, Francis got one concession: The male student is not to be allowed to walk at graduation after all. He is appealing that decision, along with the finding of responsibility, while Francis appeals the decision not to expel him. The male student also argued on appeal that Stanford shouldn’t have taken Francis’ case because the sex occurred off-campus. But as Francis pointed out in her response, Stanford’s code of conduct applies to all acts that “threaten the safety and integrity of the University community regardless of where such acts occur.”
On May 9, Francis got an email from Stanford’s Dean for Student Life telling her that if she publicized the name of the student she accused, and the finding of responsibility through the Alternative Review Process, “that would constitute a breach of the confidentiality expectation” Stanford has, and the male student could file a complaint against her with the school. Stanford’s policy is that students are allowed to talk about cases with parents, confidantes, supporters like Dauber, counselors, and local law enforcement, but are otherwise expected to keep the experience confidential. The idea is to shield both sides from potential damage (legal, psychological) if they disclose private information about each other. But Francis said she felt like the university was threatening her. Stanford also tells students that documents generated through the disciplinary process, such as student witness statements, should not be released publicly.
Dauber thinks the solution is for the school to stop producing documents with student names or identifying details on them, and then to stop telling students what they should or shouldn’t say. “Ultimately, it is up to them,” she said. “Victims have the right to talk about their experiences, and the university just comes across as if it is trying to shut them down.”
In Francis’ case, the dean actually sent a follow-up email a couple of weeks later, after Francis objected to the confidentiality policy. “It was not my intention to silence your voice; but rather to give my best advice,” she wrote. “I think you should do what you believe will begin the healing process.”
For Francis, that has meant taking her disappointment with Stanford to the student body and the Web, even though the university still has power over her. Her appeal is pending, and she has yet to graduate. That didn’t stop her from writing an email this week in which she laid out her story and asked friends and supporters to forward the message and post it online. “I don’t care any more what they say or what they can do to me,” she told me on Wednesday, driving with a friend to pick up supplies for the rally she was planning for Thursday. “I’m tired of having my chance for justice held over my head by the university.”
I’ve been writing about the problems universities have handling these cases for years, and I have two competing concerns. The first is that to date, as the investigation by the Center for Public Integrity made starkly clear, universities have too often treated victims as if they were the problem, leaving them feeling unsupported and silenced. If schools could protect their brands by shunting victims to the side, they too often did so. Now, however, national attention—thanks to smart and decided student survivors and activists—is changing that picture. As the incentives shift, and schools try to prove their commitment to combating sexual assault, will they become too quick to find accused students culpable? That’s a legitimate fear. And so (though I’m still thinking this through) here is where I come down at the moment: I think the Department of Education should raise the standard of proof to clear and convincing evidence, to underscore the importance of (relative) certainty. And then universities should stiffen the standard punishment, so that a student who is found responsible for rape (let’s call it what it is) can expect to be expelled (though accused students should be able to argue for exceptions). I’d also like schools to be fined when they fail to live up to their obligations to investigate under Title IX violations. That’s not happening now, because the DoE thinks it can’t impose a fine without taking away all of a university’s federal funding. It’s a problem of overkill that Congress should fix.
It still won’t be easy for a university to run a quasi-judicial process that is fair to everyone involved—and that also gives students who feel they’ve been victimized emotional support. For Francis, that support finally came Thursday, at the rally where hundreds of students joined her. “I feel free,” she told me the next day. “It feels worth it. It feels worth it for every survivor who came up to me and said, ‘You did something I couldn’t do. Thank you so much.’” She is part of a network now, of activists all over the country. They have each other’s backs. And when they say they are making their schools change, they are right.