SAN FRANCISCO, July 20, 2011—Displaying a shocking disregard for fair procedures on campus, Stanford University is training student jurors in sexual misconduct cases to believe that "act[ing] persuasive and logical" is a sign of guilt. Stanford also instructs campus tribunals that taking a neutral stand between the parties is the equivalent of siding with the accused.
In this climate, Stanford last semester found a male student guilty of sexual assault solely because it determined that his partner was intoxicated (as was he). Stanford policy states that students cannot consent to sex—even with a spouse—if "intoxicated" to any degree. To make matters worse, after receiving an April 4 open letter to all colleges from the federal Department of Education, Stanford lowered its standard of proof from "beyond a reasonable doubt" to the "preponderance of the evidence" standard—our judiciary's lowest—in the middle of the student's proceedings.
The student, who wishes to remain anonymous, has come to the Foundation for Individual Rights in Education (FIRE) for help. Samantha Harris, FIRE's Director of Speech Code Research, tells the story in today's New York Post.
"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," said FIRE President Greg Lukianoff. "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."
The training materials for Stanford's "Dean's Alternative Review Process," which handles sexual harassment and misconduct cases, also inform student jurors that they should 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.'"
The material provided to student jurors, much of which comes from a book titled Why Does He Do That: Inside the Minds of Angry and Controlling Men, is generally directed not at ensuring a fair trial for both the accuser and the accused, but at ensuring that accused men are presumed guilty.
"Imagine being a male Stanford student at your sexual assault hearing," said FIRE Senior Vice President Robert Shibley. "The 'jury' has been told that denying the charges is a sign of guilt, and so is being persuasive and logical. They've been told that accusers almost never lie, that they need to be extra suspicious of men who don't seem like they'd commit rape, and that being neutral is taking the side of abusers. Additionally, the Department of Education has mandated that a sliver of certainty is all that is required to find you guilty. Would any Stanford administrator volunteer to be tried for sexual assault in a real court under the same conditions that they have imposed on their students?"
Stanford's definition of consent to sex imposes a concept that is foreign to most people's idea of adult consent and inconsistent with California state law. Stanford policy states that 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 while intoxicated to any degree constitutes sexual assault. This is true even if the activity was explicitly agreed to by a person capable of making rational, reasoned decisions, and even if the partners are in an ongoing relationship or marriage. Further, under a policy like Stanford's, if both parties are intoxicated during sex, they are both technically guilty of sexually assaulting each other.
In the Stanford student's case, the disciplinary panel had all the information it needed when it found that his accuser had been intoxicated. The panel did not even bother to determine whether the sex was actually consensual. Stanford's findings of fact merely conclude that "the impacted party was intoxicated by alcohol." Per Stanford's policy, the sex therefore could not be consensual.
Stanford's finding contrasts dramatically with the response of the Palo Alto police and prosecutor, whose investigation turned up so little evidence suggesting that a sexual assault occurred that the prosecutor declined to act and the police did not even detain the accused student for questioning.
The April 4 open letter from the federal Department of Education's Office for Civil Rights (OCR) has guaranteed that such injustices will become more common by requiring all colleges and universities that receive federal funding to reduce due process protections for students accused of sexual misconduct. FIRE has repeatedly warned that the new requirements will drastically impact students' fundamental rights, and responded directly in a May 5 letter to OCR.
OCR's mandate that colleges lower their standard of proof to "preponderance of the evidence" (approximately 50.01% certainty) came during the Stanford student's proceedings. Stanford immediately dropped its "beyond a reasonable doubt" standard and retroactively applied the new, low standard to the case.
Another provision in OCR's April 4 letter dictates that if accused students may appeal disciplinary decisions, their accusers must also be allowed to appeal. Not even victims of the most heinous crimes in our court system have this right. At Stanford, the student's accuser was not satisfied with his two-year suspension, so she has appealed for Stanford to permanently expel him. (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.
"While we appreciate that the federal government has put Stanford and all universities in a difficult position with its new mandates, that does not excuse the injustice of changing the rules in the middle of a process," FIRE's Shibley said. "The government did not force Stanford to adopt its absurd rules about consent to sex and its 'training' materials that owe more to politics than justice. Stanford's review should be swift and comprehensive, and any student who was found guilty under these unjust circumstances should be given the opportunity for a new, truly fair, hearing. Stanford students pay $57,000 per year to attend. For that price, the university owes them at least a bare minimum of justice."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Robert Shibley, Senior Vice President, FIRE: 215-717-3473; email@example.com
John Hennessy, President, Stanford University: 650-723-2481; firstname.lastname@example.org