The problem is what happens when these changes are made. Emily Bazelon has an excellent piece at Slate on a case at Stanford that’s generating controversy. The key parts about the shift in the complaint process:
She decided to make a formal complaint through Stanford’s Alternative Review Process, a new disciplinary procedure, established last year for sexual misconduct cases because few students were coming forward under the old system, which students said was too trial-like. The ARP was designed to address this concern. A panel of reviewers, three students and two faculty or staff, hears from both sides in a series of interviews, rather than a face-to-face hearing. Instead of direct cross-examination, each party can listen by phone and submit questions, which are asked by the reviewers.
The standard of proof at Stanford for a finding of liability is preponderance of the evidence; in other words, the reviewers must find only that it’s more likely than not that the sexual assault or harassment occurred. Preponderance of the evidence is a common standard for civil liability, used for civil protection orders in domestic violence cases, for example. And it’s what the Department of Education decided Title IX requires, in a 2011 letter to universities that stressed their responsibilities to protect students from sexual assault and harassment.
Stanford law professor Michele Dauber, who helped design the ARP as the faculty chair of Stanford’s Board of Judicial Affairs, told me that many more students are making complaints than did so under the old system.
All well and good, but as Bazelon goes on to note, this has led to an unexpected outcome: a greater number of findings of sexual assault, but also relatively minor punishments short of expulsion for those found guilty of rape.
In closing, Bazelon proffers her own opinion on what should be done:
As the incentives shift, and schools try to prove their commitment to combating sexual assault, will they become too quick to find accused students culpable? That’s a legitimate fear. And so (though I’m still thinking this through) here is where I come down at the moment: I think the Department of Education should raise the standard of proof to clear and convincing evidence, to underscore the importance of (relative) certainty. And then universities should stiffen the standard punishment, so that a student who is found responsible for rape (let’s call it what it is) can expect to be expelled (though accused students should be able to argue for exceptions).
Here’s the thing though: if you’re going to raise both the standard of proof and the punishment if found guilty, I think you’re also going to need to shift the adjudication process back towards a more legal set of norms and structures. Civil liability is based on a preponderance of evidence standard, but I’m also rather certain that civil litigators get to cross-examine witnesses (in Massachusetts at least). If severe punishments like expulsion are going to be meted out, there has to be a due process that is fair to the accused and recognizes some kind of Sixth Amendment protections. Or, to put it more plainly, expelling a student from a university without any direct cross-examination of the accuser doesn’t seem like a viable system.
To be fair, Bazelon recognizes the problem here, noting later that, “It still won’t be easy for a university to run a quasi-judicial process that is fair to everyone involved—and that also gives students who feel they’ve been victimized emotional support.” That’s the tradeoff. If you make it easier for rape victims to come forward with a non-adversarial adjudication process, the punishments of the accused will likely fall short of expectations. If you make the punishment fit the crime, then you also have to shift back to a more legalistic set of procedures, which will be more daunting to the accused. I’m not happy about this tradeoff — but it can’t be ignored, and unfortunately I don’t think it can be ameliorated.