Realigning universities’ paralegal sexual assault systems

Opinion by Neil Chaudhary
Nov. 20, 2014, 9:41 p.m.

Currently, both Stanford and the criminal justice system have processes to deal with sexual assault. Under Title IX of the Education Amendments of 1972, if a student wants to report an instance of sexual assault, (s)he doesn’t have to go through the criminal system. However, if reported to university officials, Stanford is required to investigate, determine guilt on the “preponderance of evidence” standard and take appropriate action. Title IX, in essence, forces universities like Stanford to become paralegal systems something a university is ill-equipped to handle and that results in inappropriate responses to sexual assault cases.

Stanford’s and other universities’ sexual assault judicial processes deny the rights that are crucial to ensuring a fair and impartial trial. Unlike in the justice system, Stanford’s Alternative Review Process (ARP) does not provide due process as conventionally conceived. The ARP is essentially an adjudication process conducted through a series of private interviews and arbitrated by a panel of three students and two faculty members who receive some sort of training in the legal aspects of sexual assault. Unlike with a jury, neither the defense nor the prosecution can make challenges to the panel composition if they believe certain members incapable of making impartial judgments (e.g., due to ideological reasons). Moreover, unlike in the justice system, the defense does not have the option to choose a judge (who is required to be extensively trained in the law) over a panel of peers. While university judicial systems are not required to abide by constitutional due process, not doing so opens the gates to personal biases influencing the evaluation of legal claims.

More than this, sexual assault cases represent a conflict of interest for universities trying to adjudicate and resolve these issues. Universities want to protect their images, but publicly exposing sexual assault would tarnish the reputation of a school and reduce admissions rates. For example, following Duke’s lacrosse sexual assault scandal, its offer acceptance rate fell ~two percent, with larger reductions in minority groups. Moreover, in a recent incident at University of Virginia, when rape survivor Jackie asked her dean why UVA does not publicly disclose its sexual misconduct data, he replied, “Because nobody wants to send their daughter to a rape school.” Similarly, survivors at both Harvard and Columbia were subtly encouraged by university administration to resolve sexual assault claims quietly. These incidents are not outliers. Currently, 64 universities are being investigated by the Department of Education for not adequately abiding by Title IX requirements, which include things such as basic as providing a grievance process and appeal rights.

One proposed solution to these issues is to encourage universities to rely on the outcomes of the justice system to determine academic punishment. There would be two main reasons to support such a proposition. First, requiring survivors who wish to press charges to use the justice system would remove a university’s conflict of interest. Universities would no longer have the power to shape the judicial process in a way that discourages hearings or ignores a survivor’s wishes. Moreover, the personnel and monetary resources used to investigate and resolve assault claims could instead be used to enhance prevention efforts and the network of support for survivors.

Second, the criminal system uses a high standard of evidence (i.e., “beyond a reasonable doubt”) compared to what universities are mandated to use for Title IX (i.e., “preponderance of evidence”). A “preponderance of evidence” standard requires that something be more likely than not to have occurred (a 51-percent threshold) for someone to be charged. If we are to agree that expulsion should be the presumptive sanction for forcible sexual assault (as many universities are considering), then we should also require greater certainty in the act. Such an approach reflects the seriousness of a crime like sexual assault, while also emphasizing the need for convincing, reliable evidence to justify the punishment.

Utilizing the justice system does bring up concerns about reporting sexual assault. Research indicates that survivors do not report sexual assault because they feel ashamed, they have confidentiality concerns and/or they fear not being believed. All of these concerns are more pronounced in the justice system, which can be slow and impersonal, than in the campus system. Consequently, universities are providing and should continue to provide the space for confidential counseling, psychological support and medical help. Moreover, the university should be the place that accommodates the requests of survivors (e.g., housing and class changes to be removed from proximity to past assailants) even if they have not or do not wish to go through the adjudication process.

However, when it comes to resolving claims through a judicial process, the university system is lacking. Specifically, connecting academic punishment to the justice system could resolve some concerns about the preservation of the prosecution and defendant’s rights and the impartiality in the decision-making process. But, even if you do not agree with such a drastic shift in our sexual assault response, there are no doubt areas to improve the university’s judicial system. Ensuring due process, providing appropriate punishments (e.g., expulsion for forcible sexual assault) and supporting survivors regardless of concerns for institutional reputation are all areas where universities can do a better job.

Contact Neil Chaudhary at neilman ‘at’

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