On Wednesday, Provost Persis Drell released a “progress report” on the first 15 months of experience with Stanford’s new procedure for resolving sexual assault complaints. The report contains good information and the tone is admirably neutral. Drell deserves significant praise for this report, given Stanford’s previous lack of transparency and frequent institutional self-congratulation on this issue.
One regrettable false note is the continued whitewash of the termination of Crystal Riggins. Drell writes that a committee overseeing the Title IX process investigated and concluded that the termination “was not motivated, in whole or in part, by comments [the attorney] made to reporters criticizing Stanford’s processes,” despite the fact that Stanford Associate Vice Provost Lauren Schoenthaler sent Riggins a letter explicitly telling her she was being terminated due to her critical comments to the press about the process. Continuing to suggest otherwise merely undermines the credibility of the oversight committee and the report itself.
Turning to the specifics of the report, there are two areas worth highlighting.
First, the data supports concerns raised by faculty, students and lawyers (including Riggins) regarding Stanford’s requirement that survivors obtain a unanimous finding from a three-person hearing panel in order to obtain remedies like a no-contact directive or a housing change for the perpetrator. Only one other school — Duke — has such a requirement.
The figures released by Drell suggest that the unanimity requirement is distorting the pattern of outcomes, as survivors actively avoid going through a hearing process that is slanted against them.
A high proportion of cases ended in informal resolutions in which victims accepted negotiated outcomes, perhaps due to fear that they would not receive a unanimous finding at a hearing. Out of 22 cases charged, only eight cases went to a hearing, compared with 14 “nonhearing resolutions.” This means that even among the 2.7 percent of victims who made a formal report, nearly two-thirds declined the hearing. When the 29 cases of “informal intervention” are included in the total, the proportion of victims who reported abuse but avoided Stanford’s hearing process increases to 84 percent.
There is zero legal basis for requiring a victim to receive 3 votes, rather than a simple majority of 2 out of 3 votes. Stanford claims that its hearing panelists are “highly trained.” If two out of three of these “highly trained” panelists believe after a review of the evidence that a student was raped, that should be more than sufficient to provide that student with remedies allowing them to safely complete their education.
Stanford says “so far” no accused student has prevailed on a 2-1 vote, but that is not reassuring. First, 4-1 and 3-2 votes were common under the prior process (known as the ARP). More importantly, lawyers for survivors have stated publicly that they and their clients view the unanimous panel requirement with apprehension and take it into account when deciding to accept informal resolution. They know that the deck is stacked against them, and they are deciding not to play the game.
Stanford’s unanimity requirement is inconsistent with Title IX’s requirement of an equitable hearing process. Instead of putting both students on a level playing field, it tilts the process in favor of the accused student. While the accusing student needs to win all three votes to receive any help, the accused needs just one vote to prevail. This bias is appropriate to a criminal process, where the higher stakes of loss of liberty justify it. But it has no place in a process that is mandated by law to provide strictly equal opportunities and treatment to both parties.
Second, Stanford’s new narrow definition of sexual assault is a significant problem. Under the new process, assault is defined as penetration carried out through force or while a victim is completely incapacitated. The expected sanction is expulsion. This definition excludes conduct that is a felony sex crime under California criminal law and is narrower than that used by any of our peer schools. When this definition was adopted, faculty members and students objected that the narrow definition sent damaging messages by labeling particular types of conduct as “assault” but not others. They also cautioned that it appeared designed less to set community standards than to ensure that few, if any, students would be expelled.
Drell’s report now acknowledges that during the 15 months in which the new process has been in effect, literally no one was found responsible for sexual assault at a hearing. Instead, students apparently were found responsible for lesser offenses like “misconduct” or harassment (or perhaps for nothing at all under “nonhearing” settlements). As a result, Stanford continues to struggle to impose sanctions of sufficient severity. Despite Drell’s refreshing acknowledgement of the high rate of campus victimization, no one was expelled. This report documents that with the exception of one student who withdrew voluntarily, students received short suspensions or leaves of absence after which they were free to return to campus — and potentially re-offend.
This is a longstanding problem. Stanford has expelled no more than two students for sexual assault in its entire history.It’s an unsustainable pattern, particularly for a school that holds itself up as a model. The lack of serious consequences reflected in the report impacts not only the victim in an individual case, but also fails to deter other sexual violence from occurring on campus. Anger over allowing serious offenders to remain on campus has in large measure driven the wave of federal civil rights complaints and lawsuits against Stanford, with its attendant negative media attention. It is past time to face facts squarely. Sexual assault and serious sexual misconduct violate the Fundamental Standard and have no place on campus. The University must send the message that if you commit these offenses, you cannot be a part of this community.
Frederick I. Richman Professor of Law and Professor (by courtesy) of Sociology
Contact Michele Dauber at mldauber ‘at’ gmail.com.