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Members of the Senate of the Associated Students
In 1991, in response to recommendations by Stanford's Task Force on Sexual Assault, President Donald Kennedy requested the Committee of Fifteen to consider changes in the University's Legislative and Judicial Charter. In particular, President Kennedy charged C-15 with evaluating Charter amendments that would:
1. include a list of rights of victims/survivors;
2. require the cooperation of student witnesses during the investigation of complaints and during any subsequent disciplinary proceeding;
3. require the cooperation of the accused student during such investigations;
4. alter the current "beyond a reasonable doubt" standard of proof. After extended deliberations, including meetings with the Sexual Assault Task Force and an open university forum, members of C-15 unanimously recommend that the Charter be amended in all four areas. Our full proposal, which is keyed to existing Charter subdivisions, appears as Appendix I. In essence, we recommend the following changes:
1. Complainants will have the following rights, none of which are currently guaranteed in the Charter:
a) to make a confidential report, to file a written statement and to retain anonymity unless they choose to proceed with a formal complaint;
b) to have a person of their choice accompany them throughout the investigatory and the adjudicative process provided that this person will not participate actively in the process and will agree to be bound by the rules of confidentiality governing student misconduct cases;
c) to be offered reasonable protection from retaliation, intimidation, or harassment in response to their complaint;
d) to be informed of the disposition of their complaint or the outcome of any adjudicated formal charge, provided that they agree to keep the matter confidential;
e) to be entitled, in any case alleging sexual misconduct, to keep evidence of their sexual history from being admissible, absent a specific finding of relevance, and to keep confidential communications to support persons or university counselors privileged from disclosure.
2. Individuals who have information relevant to a complaint may not refuse to cooperate with the university's investigative or adjudicative process. The current Charter includes no such requirement.
3. A student who is the subject of a complaint may not refuse to cooperate during the investigatory process. The current provision requires cooperation only after the charge is filed.
The rationale for these changes is set forth in Parts III and IV below.
This committee was convened in the context of growing concern about the prevalence of sexual assault on college campuses, including Stanford. Although both C-15 and Sexual Assault Task Force members concluded that most of the Charter changes outlined above should apply to all student conduct cases, both groups also felt that the changes were particularly necessary for sexual assault complaints. What limited data are available indicates that campus sexual assault is a serious problem. National studies of college males have found that approximately five percent acknowledge committing an act that met the most common legal definitions of rape, and between a fifth and a quarter admit attempting forcible intercourse or coercing sexual contact.
1 In national surveys of college females, between 13% and 25% of women report having been raped, and comparable numbers report experiencing at least one incident of violence in a dating relationship.
2 Few of these incidents are ever brought to police or campus administrators' attention.
Stanford's experience does not appear atypical. In 1989, the Stanford Rape Education Project released its survey, which revealed that large numbers of students had experienced unwanted or involuntary sex and that only a tiny percentage had reported the conduct.
3 Stanford's Office of Judicial Affairs, which receives an estimated 150 reports of student misconduct annually, has only received four complaints of sexual assault in the last decade. A university's failure to respond adequately to sexual assault carries substantial costs: some students leave, others experience prolonged psychological difficulties, and a few are beginning to express their frustration through civil lawsuits or private retaliation.
4 Two of the most well-publicized recent cases have involved Brown University and Carlton College. Women students who reportedly were frustrated by university administrators' unwillingness to take significant action responded by naming their assailants on bathroom walls.
5 The resulting "rape lists" caused as much anger as they reflected. Male students who believed that they were unjustly accused had no opportunity to attempt to prove their innocence or even to identify the source of the charges.
6. Although the consequences of an unresponsive disciplinary system are particularly apparent in the context of a sexual assault, they are by no means confined to such cases. Members of the C-15 also heard reports about faculty members who have been frustrated by the extraordinarily high level of proof required to sanction cheating, and who have responded by simply failing the student. The Judicial Affairs Officer described barriers to enforcement resulting from the stringent burden of proof and the difficulty in securing cooperation from some witnesses or students who are subject to investigation.
The rights of complainants that C-15 recommends adding to the Charter are based on proposals by the Sexual Assault Task Force as well as a review of other university disciplinary codes compiled in Appendix II. Such safeguards are widely viewed as essential parts of an effective response structure, although much, of course, depends on how those rights are interpreted and implemented.
Studies of college date rape procedures reveal that many women students feel victimized twice; first by the sexual assault, and again by the process of trying to do something about it.7 Often female complainants and their alleged assailant have mutual friends and even efforts to make confidential reports result in retaliatory abuse. So too, other kinds of cases such as those involving racist speech may present comparable risks of harassment. The proposed right to reasonable protection against retaliation contemplates that administrators will respond to complaints with promptness and sensitivity, and will consider preventive measures such as transferring students' residences where appropriate.
The safeguards regarding sexual history are modeled on rape shield legislation. Interpretation of these safeguards can draw on extended experience with such statutes as well as with comparable campus disciplinary code provisions. As that experience makes clear, the rights of accused students to defend themselves against serious accusations can be respected without insensitive or needlessly intrusive inquiries into complainants' prior intimate relationships.8
The proposed privilege for confidential communications made to support personnel and university staff is frequently recommended for sexual assault cases. It seeks to encourage assault victims to obtain adequate professional assistance and to invoke university disciplinary processes without fear of damaging disclosures. Committee members felt that any evidentiary value such disclosures might have was far outweighed by the need to insure that such disclosures are in fact made and that appropriate complaints are initiated. Since this privilege would not extend outside the university, no accused student would suffer the risk of criminal or civil liability without access to such evidence.
Complainants' proposed right to have a person of their choice accompany them throughout the investigatory and adjudicative process also builds on widely recommended procedures for sexual assault cases. Again, however, the usefulness of the safeguard is not limited to this context. Students who for various reasons feel intimidated by the disciplinary process may be more likely to proceed with a complaint if someone perceived as sympathetic to their concerns is present. In order to avoid disrupting the process, the support person would not be entitled to participate actively by asking questions, raising objections, and so forth. Rather, the person's function would be to provide reassurance and counseling to the complainant.
Complainants' proposed right to make a confidential report serves a related purpose in enhancing the responsiveness of the disciplinary system. Experience both at Stanford and other campuses makes clear that some students will not report prohibited conduct unless they can retain anonymity. Having such reports on file enables the Judicial Affairs Office to identify patterns of offenses and potential avenues for investigation. In some instances, students who are initially unwilling to file complaints because of doubts about guilt or about their own complicity may reverse their decision on learning that others have made similar reports. However, concerns about procedural fairness dictate that no anonymous reports may be used as evidence in formal disciplinary proceedings. If a charge is filed, an accused student should have the right to know the facts on which it is based and to cross-examine the accuser.
Finally, the proposed right to file a written statement parallels the right increasingly recognized in many jurisdictions for victims of criminal offenses. Such a report insures that decision-makers will consider the impact of prohibited activity on those who directly bear its consequences. By allowing complainants to present, in their own voice, information relevant to assessing culpability, this Charter amendment may enhance both the fact and appearance of justice.
The current Charter provides that students who are subjects of complaints may not refuse to cooperate with the adjudicative process. There is, however, no requirement of cooperation with investigations prior to the filing of formal charges. Nor does the Charter mandate cooperation by a student who has, or is reasonably believed to have, information relevant to a complaint. Such requirements are a standard part of student disciplinary codes (see Appendix II) and C-15 members believed that including them in Stanford's Charter would improve the quality and timeliness of the fact-finding process.
The proposed changes require cooperation by both parties and witnesses during investigative and adjudicative processes, subject to students' right not to engage in self-incrimination. That right is currently recognized for students who are formally charged with misconduct. Under C-15's proposal, the privilege against self- incrimination would extend to all individuals whose cooperation is required. The suggested sanctions for failure to cooperate are similar to those currently provided in the Charter and include the withholding of registration privileges, transcripts, diplomas, and degrees.9
The proposed amendments also add a protection not included in the current Charter by allowing students subject to sanctions to appeal through the procedures normally provided for adjudicative review. Such a provision would provide a check against abuses of discretion and insure an opportunity to be heard by students who felt that they had a legitimate reason to withhold cooperation or that they had been unjustly subject to sanctions.
Whether to change the burden of proof was the issue of greatest concern and controversy to the Committee. Most C-15 members felt that there were compelling arguments on both sides.
On balance, however, the Committee unanimously concluded that the standard for establishing guilt should be modified to "clear and convincing" evidence.
In general, student disciplinary codes and the legal proceedings on which those codes are modeled operate with one of three basic evidentiary requirements. "Beyond a reasonable doubt" is the burden applicable in criminal proceedings. As commonly explained in jury instructions, the standard requires a "moral certainty . . . of the truth of the charge."10<degree> In most civil proceedings, the standard is "preponderance of the evidence," which requires a belief that a party's claim is more likely true than not true. Between these two standards lies a third intermediate formulation, typically phrased as "clear and convincing" evidence. Representative jury instructions, reprinted in Appendix III, generally explain that this requires proof sufficiently "explicit and unequivocal" as to leave no "serious or substantial doubt." This standard has been applicable in civil proceedings where the consequences of an inaccurate verdict have been thought particularly great, such as in hearings to commit a person involuntarily to a mental health institution, or to terminate parental rights because of abuse and neglect.
To assist C-15 in its deliberations, the Judicial Affairs Office surveyed other campus disciplinary codes. It found only two other institution besides Stanford -- Harvard and Princeton -- that employ a "beyond reasonable doubt" standard. At Harvard, recommendations are pending to reduce the burden of proof, and the university's legal office reportedly supports that change. Appendix IV indicates that out of a representative sample of other institutions, eleven have some variation of "preponderance of the evidence," five have some variation of "clear and convincing," and one has a combination of those standards. The only reported judicial decision to consider the issue suggested "clear and convincing" as the appropriate burden of proof for college disciplinary processes.11
So too, the only expert commentary in the area concludes that an intermediate standard best accommodates the competing interests.12 It also bears note that Stanford employs an intermediate standard, "highly persuasive evidence," in cases alleging faculty misconduct.
As C-15 members noted, a "beyond reasonable doubt" standard was developed for criminal processes, which are unlike disciplinary proceedings in several important respects. Criminal sanctions are unique in their impact on life, liberty and personal reputation, and criminal procedures are unique in their ability to command the investigatory resources of the state. By contrast, student disciplinary findings do not carry the same impact as a criminal conviction. Nor can campus administrators rely on powers that enable state law enforcement officials to meet their stringent burden of proof, such as the right to subpoena witnesses, conduct reasonable searches and seizures, grant immunity, or threaten contempt and perjury prosecutions. 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 Stanford Judicial Affairs Officer has estimated that a substantial number of reported honor code and fundamental standard violations, on the order of 25 per year, probably would satisfy a standard of clear and convincing proof but do not result in formal charges because they probably would not establish guilt beyond a reasonable doubt.
The University's inability to proceed with such cases can have corrosive effects on the entire disciplinary system. Students and faculty who lack confidence in the administration's ability to respond to misconduct are unlikely to make complaints, which further undermines the system's effectiveness. This absence of confidence is undoubtedly one factor contributing to the infrequency of sexual assault reports. For many such cases, a beyond a reasonable doubt standard is particularly difficult to satisfy since the issue is usually consent and the primary evidence is oral testimony.
Although such considerations convinced C-15 members that the University's burden of proof should be reduced, they wished to retain greater protection for accused students than the preponderance of evidence standard specified in most student disciplinary codes. An intermediate standard, by minimizing the risk of inaccurate adjudications of guilt, reflects the potential significance of university sanctions in shaping students' reputations and career options.13
The Committee does not mean to overstate the importance of changing the formal standard of proof. C-15 members doubt that many faculty or students are aware of current requirements. The Committee was also confident that decision-makers would not make findings of serious misconduct or impose serious penalties without a high degree of certainty, whatever the precise formulation of the burden of proof standard. To the extent that changing the burden would have impact, the Committee believed that it would marginally improve the disciplinary system's capacity to respond to misconduct. And to the extent the proposed change receives attention, it could have some symbolic significance in convincing victims of sexual assault or other misconduct that the university is committed to providing an effective response.
1 Koss, "Hidden Rape: Sexual Aggression and Victimization in a National Sample of College Students," in A. W. Burgess, ed. Rape and Sexual Assault, Vol. II 1, 5 (New York: Garland Publishing Co. 1988).
2 Koss, Godyz, & Wisniewksi, "The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization," Journal of Clinical and Counseling Psychology 455 (1982); Bogal-Albritten & Albritten, "The Hidden Victims: Courtship Violence Among College Students," 26 J. College Student Personnel 201 (1985).
3 Of the 2400 surveyed students, one in three women and one in eight men reported having full sexual activity that they did not want. Only 2% of the incidents resulted in reports to the police.
4 See Gibbs, "When is it Rape," Time, June 3, 1991, at 48; Collinson, "Increase in Reports of Sexual Assaults Strains Campus Disciplinary Systems," Chronicle of Higher Education, May 15, 1991 at A 29; Hauserman & Lansing, "Rape on Campus: Postsecondary Institutions as Third Party Defendants," 8 J. College & University Law 183 (1981-82).
5 Foster, "Problem of Rape on Campus Tackled Anew by Activists," Christian Science Monitor, Dec. 26, 1990, at 7; Collison, supra note 4. For other publicized cases, see Olen & Ostrow, "New Attitude Toward Date Rape," S.F. Chronicle, April 23, 1991 (William & Mary); Weiss, "The Second Revolution: Sexual Politics on Campus," Harpers, April 1991, p. 58 (Dartmouth).
6 Celis, "Date Rape and a List at Brown," New York Times, Nov. 18, 1990, at 16.
7 Collinson, supra note 4 at 31, and sources cited in note 5.
8 An example of such inquiries appears in accounts by one of the plaintiffs in a suit against Carlton College for its alleged negligence in dealing with sexual assault cases. During a hearing that resulted in a finding of assault, the complainant was asked how many times she had had oral sex and "how far" she had gone on her first date. Collinson, supra note 3. For general background on rape shield statutes, see e.g., "The Current Status of Rape Reform Legislation: An Examination of State Statutes," 10 Women's Rights Law Reporter 25 (1987).
9 The current Charter specifies two sanctions: placing a hold on the next quarter registration and denial of graduation in the case of students in their last quarter.
10 See sample instructions in Long, "The Standard of Proof in Student Discipline Cases," 12 J. College & Univ. Law 71 (1985).
11 Smyth v. Lubbers, 398 F. Supp. 377 (W.D. Mich. 1975).
12 See Long, supra note 10.
13 See J. Picozzi, "University Disciplinary Process: What's Fair, What's Due and What You Don't Get," 96 Yale L. J. 2132 (1987).
Proposed Modifications for The Legislative and Judicial Charter
The following procedures will apply to complaints involving alleged violations of a student conduct rule or a regulation subject to the jurisdiction of the Stanford Judicial Council:
1. A student who is the subject of a complaint may not refuse to cooperate with the investigatory or adjudicative process, except that the student has the right not to engage in self-incrimination. Sanctions for refusal to cooperate, except as otherwise provided in these procedures, may include the withholding of registration privileges, transcripts, diplomas, and degrees. A student subject to such sanctions may appeal through the procedures set forth in these regulations (see A.2.b. above).
2. A student who has, or is reasonably believed to have information relevant to a complaint may not refuse to cooperate with the investigative or adjudicative process when requested to do so by the university officer responsible for student judicial matters, except that the student has the right not to engage in self- incrimination. Sanctions for refusal to cooperate, except as otherwise provided in these procedures, may include the withholding of registration privileges, transcripts, diplomas, and degrees. A student subject to such sanctions may appeal through the procedures set forth in these regulations (see A.2.b. above).
1. Persons who report to the university officer responsible for student judicial matters an alleged violation of a student conduct rule or a regulation subject to the jurisdiction of the Stanford Judicial Council have the following rights: a. to make a confidential report, to file a written statement, and to retain anonymity unless they choose to proceed with a formal complaint; b. to have a person of their choice accompany them throughout the investigatory and the adjudicative process provided that this person will not participate actively in the process and will agree to be bound by the rules of confidentiality governing student misconduct cases; c. to be offered reasonable protection from retaliation, intimidation, or harassment in response to their complaint; d. to be informed of the disposition of their complaint or the outcome of any adjudicated formal charge, provided that they agree to keep the matter confidential. In any formal charge alleging sexual misconduct subject to the jurisdiction of the Stanford Judicial Council: a. evidence of the sexual history of persons initiating complaints shall not be admissible unless a hearing officer at the fact-finding hearing makes a specific finding of relevance according to the rules of evidence. The offer of proof must be made and resolved by a hearing officer before a complainant testifies; b. persons who initiate complaints shall have the privilege not to disclose or to have disclosed in any student disciplinary proceedings any confidential communication made to the person who accompanies them throughout the investigatory and adjudicative process and to any university employee whose official functions include counseling students or responding to reports of sexual assaults.
3. Conduct of proceedings before a Hearing Officer c. Facts alleged in the formal charges must be established by the charging party by clear and convincing evidence.
9. To be considered innocent until proved guilty by clear and convincing evidence.
Other appendices are available at the Office of Judicial Affairs, Old Union, or Stanford News Service, Press Building East.
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