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Senate approves new student disciplinary process for sexual assault and harassment cases

L.A. Cicero Law professor Michele Dauber and undergraduate student Jonathan York, right, explain the proposed changes to the Judicial Charter at the Faculty Senate.

Law Professor Michele Dauber and undergraduate student Jonathan York, right, explain the proposed changes to the Judicial Charter at the Faculty Senate.

The Faculty Senate on Thursday approved a proposal to amend the Student Judicial Charter of 1997 to incorporate the Alternate Review Process of 2013, a student disciplinary process for reviewing allegations of sexual assault, sexual misconduct, sexual harassment, relationship (dating) violence and stalking.

Stanford introduced the Alternate Review Process (ARP) as a pilot project in 2010, with President John Hennessy's approval.

The co-chairs of the Board on Judicial Affairs – Michele Dauber, professor of law, and Jonathan York, an undergraduate student – explained the proposed changes and the reasoning behind them. The board, which is part of the Office of Community Standards, is a 15-member committee composed of faculty, staff and students.

When a complaint that fits one of the five sexual assault and harassment categories comes into the Office of Community Standards, it is handled under the Alternate Review Process, Dauber said.

"The ARP is designed to handle sensitive complaints and is tailored in some ways to meet the unique aspects of these important issues," she said. "ARP should be distinguished from criminal or civil legal action. ARP is a university disciplinary proceeding. It's unrelated to any criminal prosecution. In point of fact, those prosecutions are extremely rare, as Santa Clara County district attorneys do not tend to bring charges in college acquaintance rape cases, and rape victims often decline to prosecute for reasons that are well documented."

To illustrate the need for the Alternate Review Process, Dauber presented data on sexual assault reports and adjudications at Stanford during the 13-year period – 1997-2009 – prior to the adoption of the ARP. In 10 of those 13 years, Stanford did not have a single adjudication for sexual assault or sexual violence, she said.

Yet during that 13-year period Stanford reported 175 forcible sex offenses to the federal government under the Clery Act. But only four cases went to a hearing and only two students were found responsible during that 13-year period on campus.

"Our experience since the adoption of the ARP has been only three years, so I wouldn't want to overstate the case, based on three years of data," Dauber said. "But it appears that we've had a turnaround. We've had 53 reports, with 11 cases going to a hearing and seven findings of responsibility. So we've had more than double the number of hearings and more than triple the number of [findings of responsibility] in just the last three years compared with the last 13 years combined."

She said further study revealed reasons why alleged sexual assault victims were not reporting the crime: Stanford had a "mock trial" type process that involved cross-examination of the alleged victim by the alleged attacker; there was no right of appeal for the alleged victim; and there was a high burden of proof for alleged victims.

"Our goal was to address these concerns and create a more welcoming process for victims while maintaining a high level of protection of the rights of accused students," Dauber said, adding that the Student Judicial Charter of 1997 was not designed to handle sexual assault cases, but cases in which, for instance, a professor accuses a student of cheating.

"The Student Judicial Charter is intended to protect students against accusations from more powerful faculty members," Dauber said. "The procedures used in such a case, such as not providing appeal rights to both parties, may not be the best fit for a case involving sexual assault or stalking."

Dauber said the ARP lowers the barriers to entry for complaining parties through several methods:

  • There are a series of private interviews, rather than a single trial-like hearing;
  • Five reviewers (three students and two faculty/staff) decide responsibility;
  • Each party listens to the other party's interview by phone and submits questions via email in real time during two breaks;
  • Rather than direct cross-examination by the accused, questions are asked by reviewers;
  • Reviewers make findings using a "preponderance of evidence standard," as required by law; four of the five reviewers must agree on finding of responsibility;
  • Both parties have the right to appeal the outcome to the vice provost for student affairs.

Over the last three years, Stanford has revised the Alternate Review Process to incorporate changes recommended by students and to ensure that it complies with federal laws and regulations.

The Alternate Review Process, which uses "preponderance of the evidence" as the standard of proof (that is, a determination that it is more likely than not that the charge is true), also gives students – the accused and the accuser – the right to appeal. Both decisions were based on direction provided to universities by the U.S. Department of Education Office of Civil Rights in an April 2011 letter.

The 19-page "Dear Colleague" letter said sexual harassment of students, including acts of sexual violence, is a form of sex discrimination prohibited by Title IX. The letter described the necessary processes and best practices for managing sexual assault allegations and investigations in school districts, and at colleges and universities.

In an interview prior to the meeting, Lauren Schoenthaler, an attorney in Stanford's Office of the General Counsel, said the Alternate Review Process complies with Title IX, as well as the Campus Sexual Violence Elimination Act, which Congress passed earlier this year.

At the senate meeting, Jonathan York, co-chair of the Board of Judicial Affairs, said students have been involved in the process of designing and developing the new Alternate Review Process since 2009, when they helped faculty and staff draft the original Alternate Review Process.

"It's important just to note that students have really felt throughout the process a high level of engagement with the administration and the Board on Judicial Affairs," he said.

York presented a slide showing several changes proposed by the Associated Students that were incorporated into the final version of the ARP, including a process to review the standard of evidence if the law changes; an increase in the number of reviewers to five, from four; a clarification of the admissibility of sexual history (only admissible where directly relevant to an issue in the case); and a decision to proactively provide support resources for students who are going through the process.

"We wanted to ensure that even as the process remains non-confrontational – and that was a major goal – we wanted to ensure that each student still has the opportunity to propose questions and to have those answered. So, as was mentioned, we have a break in the hearing process to have questions answered via email in real time. And as we already mentioned, the new ARP strengthens both parties appeal rights."

In February, the Board on Judicial Affairs, the Graduate Student Council of the Associated Students of Stanford University and the Undergraduate Senate of the ASSU approved the proposed Alternate Review Process. Now that the Faculty Senate has approved the process, it will be sent to President Hennessy for his approval.

Provost John Etchemendy, who described the Alternate Review Process as an immense improvement over what the university had before, said he particularly wanted to thank Dauber and all the staff for the work they've put into designing and shepherding it through.

"But I particularly want to thank students, not just Jonathan, but the several years' worth of student leadership that have been pushing for this and making sure that not just the Alternate Review Process goes through, but also pushing for the creation of the Sexual Assault and Relationship Abuse Office (SARA), which we recently created. It makes me so proud.

"A few years back, at one of our peer institutions back east, many of the male students were marching around campus shouting absolutely objectionable misogynistic things. Meanwhile, our students were pressuring the university, pushing forward this alternate review process and the SARA office. The difference was so extraordinary. I think we should be very proud of our students and thank them for what they've done."

At Thursday's meeting, the senate also heard presentations on issues of general concern to students from the four student representatives to the Faculty Senate: Shahab Fadavi, ASSU Undergraduate Senate representative; Olivia Hu, ASSU representative at large; Michael Shaw, ASSU Graduate Student Council representative; and Robbie Zimbroff, ASSU president.

The full minutes of the May 2 meeting, including the question-and-answer sessions that followed the presentations, will be available on the Faculty Senate website next week. The next Faculty Senate meeting will be held May 16.