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11/19/91

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Unlikely allies oppose change in standard of proof

An unusual blend of campus groups, ranging from 1960s activists to conservative Stanford Review writers, are finding themselves in agreement in opposing a series of proposed amendments to Stanford's Legislative and Judicial Charter.

The most controversial of the amendments would lower the standard of proof needed to find a student guilty of a conduct violation -- including rape, theft, cheating or disruption of normal university operations -- from "beyond a reasonable doubt" to "clear and convincing" evidence.

Other amendments would guarantee certain rights to students who initiate complaints, and would require accused students and student witnesses to cooperate during disciplinary hearings.

To take effect, the amendments must be approved by the Faculty Senate, the enate of the Associated Students, and Stanford President Donald Kennedy.

A lengthy discussion of the amendments at the Nov. 7 Faculty Senate meeting ended with no action when the senate lost its quorum. The propositions will come up again for votes at the Nov. 21 meeting.

A student senate vote on the amendments was expected after press time on Nov. 19.

Particularly vocal in their opposition to the burden of proof amendment are 19 Stanford alumni and faculty who were active in the campus upheavals of the 1960s, and attorneys who once defended Stanford students involved in those demonstrations.

They include Stanford Prof. Emeritus Raymond Giraud, former Associated Students senator Bill Evers and former judicial counsel defendants Yale Braunstein (now a UC-Berkeley professor), David Fidanque, Merle Rabine, Leslie Rabine and Leonard Siegel.

In a Nov. 15 statement, the group called the proposed amendments "unnecessary, unfair to students and inappropriate for a university that professes to recognize the individual's right to hold diverse opinions."

The current student judicial system, they said, grew out of the Vietnam War tensions of the '60s and represented a compromise between a student self-discipline system and an all- administration or all-faculty system.

"The current proposals would erode student protections further and would increase administration dominance of the judicial system," they charged.

"The proposed changes are not a rifle shot aimed at (improper sexual conduct or racist activities). Instead, they are a blunderbuss aimed at all on-campus activities, including protests on issues such as programmatic cutbacks; actions of the U.S. military and local police; the rights of women, people of color, gays and lesbians, and those seeking improved treatment of animals; alleged Honor Code violations, and free speech or racist speech issues.

"There is no doubt in our minds that the proposed changes are a fundamental attack on legitimate student rights to a fair hearing."

An editorial in the Nov. 14 Stanford Daily saw a different flaw.

"It is not plausible that the chance of convicting innocent students would not increase if the probability of convicting the guilty increased," the paper said. "Consider the obvious equation: If more people are convicted of wrongdoing, the chances of miscarried justice also increase."

Senior David Sacks, writing in a Nov. 18 column for the conservative Stanford Review, agreed.

"Rarely, if ever, have '60s protesters and Hoover fellows, students and alumni, the Daily and the Review rallied together so dramatically, so decisively around one campus issue," he said.

"Lowering the burden of proof could too easily result in increased accusations and convictions of innocent students. . . . If we really want to be tough on rapists, we should send alleged victims to the police, who can conduct search and seizure of important evidence, subpoena witnesses and mete out a sterner punishment than expulsion from college."

"A 'beyond reasonable doubt' standard was developed for criminal processes, which are unlike disciplinary proceeds in several important respects," said the committee of 15 faculty and staff members and students who proposed the changes.

For example, student disciplinary findings do not carry the same impact as criminal convictions, the committee said. And campus administrators do not have the right to subpoena witnesses and conduct searches and seizures that state law enforcers have, making it harder to meet the more stringent burden of proof.

"Given the absence of such enforcement tools, the university often has difficulty satisfying its stringent burden of proof requirements, even in the face of strong evidence of guilt," the committee said.

Proponents of the amendments, which are based in part on recommendations from the 1990 report of the university's Sexual Assault Task Force, note that few victims of sexual assault report the incidents because they are discouraged by the heavy burden of proof required in the current system.

They add that changing the standard of proof would not endanger innocent students, but would marginally improve chances of convicting the guilty.

Stanford Judicial Affairs Officer Sally Cole has estimated that about 25 reported Honor Code and Fundamental Standard violations a year could satisfy a standard of clear and convincing proof but are not prosecuted because they do not meet the reasonable doubt standard.

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