Questions & responses to the New York Times article of December 29, 2016

(Stanford statement on New York Times article of Dec. 29, 2016)

Why does Stanford investigate allegations of sexual assault? Shouldn’t this be left to the police?

We encourage all victims of sexual assault to report to the police, although some of them choose not to, for a variety of reasons. We are not – nor do we claim to be – a substitute for a criminal process. At the same time, we take seriously our obligation to have a safe campus, and both federal and state laws mandate that Stanford (and every college) must conduct its own investigation into reported allegations of sexual violence. So Stanford investigates allegations of sexual assault regardless of whether there is police involvement in a case. Stanford has zero tolerance for sexual violence on its campus and will continue to work aggressively to combat it.

Does Stanford’s process favor the accused in Title IX matters?

No. In 2016 alone, 13 out of 16 cases charged by the Title IX coordinator after investigation were decided or resolved in favor of the complainant, that is 81 percent of cases. One case (resolved by the Title IX coordinator through a procedure called a “Non-Hearing Resolution” that is available in cases where there is no significant factual dispute between the parties) involved an expulsion and other cases resulted in suspensions, based on the severity of the offenses. The cases at issue included sexual assault, online stalking, sexual harassment, and violation of university directive. Stanford’s processes are designed to be fair to all parties to a proceeding.

The New York Times story discusses Stanford’s prior Title IX process, which has been significantly modified in several respects (including the creation of the Non-Hearing Resolution procedure, which many complainants and respondents have chosen in preference to a full panel process). Both the prior process and the university’s new pilot process, initiated in February 2016, use a standard of proof called “preponderance of the evidence.” That is the standard the government requires universities to use for sexual assault proceedings under Title IX. This standard asks whether the charges are “more likely than not” true – as opposed to asking whether the fact finder is sure “beyond a reasonable doubt,” which is the more stringent standard used in criminal cases. This “preponderance of the evidence” standard is also the burden of proof required in civil lawsuits in the California court system involving allegations of sexual assault.

How did Stanford arrive at its threshold to find students responsible?

The precise workings of the process are aimed at balancing the rights of both the accuser and the accused in the context of the less stringent standard of “preponderance of evidence.” The Stanford process applicable at the time of the case discussed in the Times story required an affirmative vote by at least four out of five panelists to hold a student responsible for a sexual assault. That requirement was quite similar to the requirement for civil liability in California’s court system where a significant supermajority of jurors (at least nine out of 12) must agree that a plaintiff has proven his or her case by a preponderance of the evidence before a defendant can be found liable. This standard was approved by the university’s Faculty Senate and the student government. Note that a criminal conviction for sexual assault would require far more: it would require that all 12 jurors agree unanimously, and beyond a reasonable doubt, that the defendant was guilty. Thus, in the criminal justice system, even a conclusion by 11 of 12 jurors that a defendant is guilty beyond a reasonable doubt does not produce a conviction.

In 2016, Stanford began using a new pilot process. After extensive study by a task force headed by the dean of the law school and the then-president of the student body, and with widespread consultation throughout the campus, Stanford adopted a hearing process that uses three-member panels whose members undergo extensive training. To find responsibility, the three panel members must agree, using the preponderance of the evidence standard. The Task Force provided the following reasoning: “A system where several decision makers evaluate the crucial evidence and come to an informed judgment is one that relies on the benefits of deliberation among several people to reach a wise judgment, and it protects against a single decision maker with idiosyncratic judgments. It thereby protects both fairness as well as the perception of fairness.” So far, there has been no case where a split vote has prevented a finding of liability – that is, where a panel has divided 2-1 in favor of finding responsibility – which is the concern expressed by critics of the process. As already mentioned, the new process also allows for a more streamlined resolution in cases where, after an investigation, there is no disagreement on the relevant facts. Finally, Stanford also pioneered a program that provides students on both sides the ability to be represented by an attorney paid for and trained by the university, and gives access to licensed confidential counselors before students even decide whether or not to report a matter and begin the Title IX process.

Is there a mechanism to provide feedback on the pilot process?

Yes. As we continually aim to improve our processes, the pilot process included the establishment of an Advisory Committee on Sexual Assault Policies and Practices, comprised of faculty and students, and charged with monitoring and making recommendations on Stanford’s education, support and adjudication programs in this area. More information on the committee, including a link to a site where feedback can be provided confidentially, is available at:

http://news.stanford.edu/2016/10/10/advisory-committee-sexual-assault-policies-invites-input/

Is Stanford’s process “an outlier among prestigious universities” as the article states?

No. It is not true that Stanford is “an outlier among prestigious universities” – or among universities generally – in the manner in which it adjudicates Title IX cases. There is no single dominant process for adjudicating Title IX cases on college campuses. A number of schools, including Harvard, use a single-decision maker model; by definition, those schools require a “unanimous” decision. Other “top 20 colleges” require a unanimous 3-0 decision to determine the sanction. Processes vary significantly with respect to the number of people who make the decision, the role of people who make the decision (from professional investigators to students), the vote that is required to make a finding of responsibility, and the vote that is needed to impose discipline. Some schools start with a sole decision-maker model, whose decision can then be appealed to an appeal panel. Some schools, like Stanford, use a panel of specially trained faculty, staff and graduate students. Stanford’s process is designed to be fair and equitable to both parties.

Stanford is, however, distinctive in one respect that the Times story failed to mention: its express directive that expulsion is the expected sanction for individuals who are found responsible for a sexual assault. Moreover, even for wrongdoing that does not constitute a sexual assault – for example, viewing an intimate image of another individual without that person’s consent (which is another form of sexual misconduct that is addressed through the Title IX process) – panels are directed to start the penalty deliberation by considering whether expulsion is the appropriate sanction. Few other schools have taken as categorical an approach to sanctioning.

How many students have been expelled for sexual assault since 2014?

There have been four expulsions since 2014. The New York Times incorrectly reported it as one.

What is the standard discipline at Stanford for findings of sexual assault?

The expected disciplinary outcome for students found responsible of sexual assault is expulsion. This policy was put in place in October 2015. While no panel has heard a sexual assault case involving conduct occurring after that time (and therefore there has not yet been an opportunity for a panel to apply the expected expulsion standard), this new standard was recently used to impose an uncontested expulsion through a Non-Hearing Resolution.

Does Stanford allow cases to be resolved as part of a mediated or plea-bargain type process?

No. In 2016, Stanford adopted a Non-Hearing Resolution process as one method for resolving cases. This method is not a “plea bargain,” not a negotiation, and not a mediation. Our Non-Hearing Resolution option is formal, involves a full investigation, and consists of the Title IX coordinator issuing a recommended outcome order including sanction. Each of the parties is entitled to decide whether to accept that recommended order. If both parties choose to do so, then the order becomes final, there is no opportunity to appeal, and the decision is implemented immediately. But if either student decides that a hearing would better serve that student’s interests, then the matter goes to a hearing. Contrary to what was stated in the New York Times story, no student is ever pressured to accept a Non-Hearing Resolution. We never ask a complainant to negotiate with an assailant. The Department of Education guidance discouraging mediation is therefore not applicable to Stanford’s procedure for reaching a Non-Hearing resolution, because Stanford’s process is not a mediation involving negotiation between the parties. This process results in an uncontested outcome and we have used it 10 times this year in favor of complainants, including to expel a student from Stanford.

Is Stanford’s new Title IX Student Process for resolving complaints described correctly in the article?

No. The Times’ description is neither accurate nor complete. For example, the article’s assertion that “the cases rely heavily on written statements from all parties, rather than on interviews by detectives or forensic evidence, as in a police investigation, which some legal experts assert makes for a less proficient investigation” gets several things wrong.  First, the “written statements” are the result of interviews by specially trained sexual assault investigators in the Title IX office who have investigated the claims and collected evidence.  In addition, both parties have the opportunity to present live testimony on their own behalf and by witnesses at the hearing. Second, no university can conduct “forensic” examinations of the kind performed by law enforcement. Police departments have “detectives” – universities do not. Among other things, universities lack the legal authority to use many of the tools available to police and prosecutors, such as subpoenas for recalcitrant witnesses. That is why we encourage students who report they have been sexually assaulted to contact the police, who can engage in those processes. In addition, universities are limited in the sanctions they can impose on students, whereas the criminal process can impose prison time, restitution, probation and other sanctions not available to universities.

Why wasn’t there a football sanction for the player described in the article?

Stanford handles Title IX matters through the Title IX Office – not through other offices. Although the student described in the story was reported to be a Stanford football player, Stanford football did not have a role in this matter, nor should it have had a role. It is not appropriate for Athletics’ coaches or staff to be involved in Title IX matters because such involvement could suggest inappropriate influence during the process. Accordingly, and in keeping with federal privacy laws protecting students, Stanford’s Title IX Office does not share details of pending cases against students with coaches (or choir directors, or computer science professors), unless there is a safety issue requiring the school official’s involvement.

Stanford will take interim measures to protect the safety of the Stanford community while a matter is pending if such an action is necessary to protect either the complainant or the community at large. Such decisions are made centrally by the Title IX Office and not by any individual within Athletics or any other department. Stanford does not take disciplinary measures against students before a finding of responsibility is made. It is not appropriate to withhold university privileges from students who have been accused, but not found responsible, of any act of misconduct.

Stanford’s football team represents approximately 3 percent of all Stanford undergraduate males and since 2010 Stanford football players have collectively been accused in approximately 3 percent of all Title IX allegations. That is, Stanford football players are not overly represented in Title IX complaints based on their percent of the overall male undergraduate population.

What is Stanford’s response to the lawsuit mentioned in the New York Times article?

Stanford denies the allegations and is vigorously defending this lawsuit. Stanford’s Answer to the Complaint is available online, here: http://news.stanford.edu/2016/12/08/information-jane-doe-lawsuit/.