At Stanford University, in a conference room above a Starbucks and other shops, a panel of five gathered in June 2015 to decide whether a sexual assault had occurred on campus. Several months later, after a process marred by procedural errors, five different panelists convened to rule on the matter again.
The case involved a woman, a sophomore, who had met a player on Stanford’s powerhouse football team at a fraternity party one Saturday night. They went back to her room where, she said, he raped her. He said they had consensual sex.
Seeking to avoid the trauma of a police investigation, the accuser turned to the university’s in-house disciplinary board, one of many on college campuses that adjudicate sexual assault cases, and it would decide whom to believe. If the panel had found that sexual assault had taken place, the man could have been expelled.
Both times, three of the five panelists — drawn from a pool of administrators, faculty members and students — concluded that the man, who remained on the football team throughout the case and is on the roster for a bowl game Friday, committed sexual assault.
At many schools, this simple majority vote would have been enough to find the accused responsible. But Stanford had set an uncommonly high bar, requiring at least a 4-1 decision.
This year, amid growing dissent over how it handles these kinds of cases, Stanford changed its procedure in a way that victims rights advocates say favors the accused. It now requires a unanimous verdict from a three-member board, making it an outlier among prestigious universities. Only one other school (Duke) in U.S. News & World Report’s list of the country’s top 20 colleges that use such panels has such a stringent requirement.
As awareness of sexual assault on college and university campuses has surged, institutions have struggled to balance the desire and legal obligation to cultivate a safe campus, where victims feel comfortable coming forward, with maintaining due process for the accused.
At Stanford, however, that effort has set off a particularly vigorous debate, as a school that is an innovator across fields and has a sterling image to protect faces a community in which many believe it has fallen short of leading on one of the thorniest issues of the day.
In the case with the football player, the woman, who had gotten a second hearing after presenting evidence of errors in the first proceeding, remains angry and has temporarily left the school to avoid the player.
“I realized that I got into this school and deserved to get an education here,” the woman said in an interview. “He was a valued football player, but I had earned my right to be here, too.”
The man, who did not reply to repeated requests for comment, remains enrolled at Stanford and is expected to be a member of the team for its game against North Carolina in the Sun Bowl on Friday.
Stanford officials said they could not talk about details of the case because of confidentiality rules and federal law. But they defended the system they have put in place to resolve sexual assault allegations.
Stanford’s decision to require a unanimous panel of three, in place since February 2016, stemmed from recommendations made by a task force last year.
“In deciding we wanted well-trained, long-term panelists, it made sense to go to a three-person panel,” said Pamela S. Karlan, a Stanford Law professor who is now chairwoman of a sexual assault advisory committee, “and having three people decide something by a preponderance of the evidence seemed to us the appropriate way of deciding whether a life-altering sanction should be imposed on somebody for his or her behavior.”
Reports of sexual assaults on and around Stanford’s campus increased to 39 in 2015, from 21 in 2010, according to data Stanford compiles under federal law, though it is possible victims were coming forward more often, rather than there being more attacks.
Still, very few sexual assault cases that have gone through the university’s internal process in recent years have led to any significant punishment for the accused, a fact that Stanford attributes to a rigorous but fair standard to guard against wrongful judgments. Advocates for sexual assault survivors consider it a sign of a system stacked against victims.
A New York Times examination of the Stanford case concerning the football player, based in part on a review of more than 100 pages of documents from Stanford’s proceedings, illuminates the school’s struggles and pitfalls in adjudicating these kinds of cases.
“Everyone knows sexual assault on campus is a serious problem, and one that is very difficult to tackle,” said David Palumbo-Liu, a professor of comparative literature at Stanford and one of dozens of faculty members who have criticized the school’s sexual assault policies.
“Many of my colleagues are deeply concerned about it,” he said, “and want Stanford to be a leader in addressing this issue assertively.”
The woman who made the accusation against the football player said that she decided to speak about it so the public might have a better understanding of the lapses that can occur when such cases are handled internally.
The Times is not identifying her or the man she accuses of assault.
Last season, as his case was proceeding, the football player was a regular for the Cardinal, which went 12-2 and won the Pacific-12 Conference title and the Rose Bowl.
The football coach, David Shaw, a member of the N.C.A.A. Commission to Combat Campus Sexual Violence, said in an interview that he was aware that a “proceeding was happening” involving the player, but that he did not know the charge. He said he saw no reason to suspend him from the team without more information.
The woman, now 22, frightened she might encounter the man on campus, left the university to study elsewhere last quarter and has not decided whether to return. After the case ended, she sought a temporary restraining order in state court against the man, but was denied, court records show, because the judge found that she did not demonstrate that there was an imminent threat.
A Duty to Its Students
Stanford was empowered to handle the case internally by Title IX, a federal law dating to 1972 mandating equal access to higher education regardless of gender, and the United States Education Department’s interpretation of that law as requiring universities to carry out investigations of alleged sex crimes on campus.
Most campuses now operate under guidelines that the Education Department’s Office for Civil Rights explained to university administrators in a 2011 letter aimed at making students feel safe to report allegations.
It urged a legal threshold based on a preponderance of the evidence, the legal standard in civil cases, rather than the higher threshold of beyond a reasonable doubt, used in criminal cases.
Many universities had used the “beyond a reasonable doubt” standard, but the vast majority now have adopted the lower standard, including Stanford.
At Stanford, the cases rely heavily on written statements from all parties produced by university staff members, 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. The accused and accuser appear separately before the panel. Each can submit follow-up questions, for the panel to ask the other, but it does not have to use them.
This procedure reflects the broad latitude universities have been given to set up their own methods of examining and adjudicating cases. Many cases never end up before law enforcement because the accusers refuse to cooperate, trusting their universities to take action. Often, the accusers simply want the accused expelled or kept at a safe distance.
“All I really wanted was a no-contact order,” the woman said in an interview. “I wanted little things to make being on campus more bearable. I knew he was never going to get suspended or expelled. That’s what kept me moving forward.”
Several independent experts said universities’ obligations to follow the law while supporting both the accused and the accuser as members of the campus community — and looking out for their own institutional interests — make flaws like those the woman found in her case all but inevitable.
“Under Title IX, educational institutions are responsible for being all things to all people: the caregiver, the impartial investigator, adjudicator, sanctioner, trainer and preventer,” Gina Maisto Smith, a former prosecutor whose practice at the Philadelphia-based law firm Pepper Hamilton includes advising colleges on Title IX compliance, wrote in an email.
“As much as schools are doing it better — and they are — and as much as they try to separate the fact-finding process from the provision of resources and support, many, if not most, institutions lack the resources and dedicated personnel to separate and fulfill each of these roles effectively,” she added. “Even if schools have the resources to do so, exercising oversight of the entire process often leads to a perception of institutional bias and a lack of faith in the reliability of outcomes.”
Advocates for sexual assault victims say that Stanford’s process has made it more difficult for accusers to receive rulings in their favor. Critics say the university has done this to protect its public image; Stanford maintains it wants to ensure fairness to the accused in a proceeding with standards lower than a criminal case.
“Imagine a senior, who has paid four years of Stanford tuition,” said John W. Etchemendy, the outgoing provost, explaining why Stanford’s system includes significant protections against adverse findings for accused students.
“Being expelled is really a life-changing punishment,” he said. “I think we as an institution have a duty to take that very seriously.”
This high bar for accusers has left the university open to criticism from victims’ rights advocates.
“They are very keen on protecting the brand over supporting survivors,” said Stephanie Pham, a co-founder of the Stanford Association of Students for Sexual Assault Prevention. “If you ask, ‘Do I feel safe on campus?’ I do. When something happens, though, will Stanford protect me? The feeling is, no, they won’t. To have prevention, you need to hold people accountable. They haven’t.”
Earlier this month, Stanford was sued by a student who accused the university of failing to protect her from a student who she says sexually assaulted her after Stanford had heard at least one sexual assault complaint about him. He was sanctioned only belatedly, barred from campus for 10 years — after he graduated. The university called the suit “unfounded.”
Michele Dauber, a Stanford law professor and vocal critic of the university’s policies on sexual assaults, declined to comment on the case involving the football player because she did not know the specifics of it. But she said she doubted that the university’s proceedings complied with Title IX — particularly its requirement to have unanimous rulings, the standard in criminal cases, though Stanford’s proceedings are administrative actions.
“You have to look at the process holistically, and when you see a series of hurdles and roadblocks, this becomes a very unfriendly place, if not one of the most unfriendly in the nation,” said Ms. Dauber, one of five Stanford professors (including Mr. Palumbo-Liu) who wrote an open letter in December 2015 to the provost complaining about the new policy. “The victim should not need to garner three votes to win while the respondent needs to garner only one. That is basic inequality.”
While defending current protocols, Stanford officials acknowledged that the school had relied on a flawed process for investigating campus sexual assault in years past.
Before 2010, such cases were handled through the same disciplinary process as less egregious offenses like cheating. Rarely did claims result in students being expelled.
That system, Mr. Etchemendy acknowledged, “was not victim-friendly.”
Stanford then set up what it called the Alternative Review Process, which included the panels that the woman who accused the football player went through.
Of the 22 cases adjudicated by its panels, 13 resulted in a finding that the accused had acted improperly. Yet only one student has been expelled for sexual assault since 2014, Stanford officials said, with a few others voluntarily withdrawing, which Stanford counts as an expulsion. (Among them was Brock Turner, the Stanford swimmer whose criminal sentence of six months in jail for sexually assaulting an unconscious woman on campus in 2015 received notoriety for its perceived leniency.)
When the new policy was rolled out in February, the aim was to make expulsion the “expected” punishment for sexual assault, though after a panel determines that sexual assault has occurred, it must also decide unanimously to expel a student. Under the new system, one case has produced an expulsion.
That outcome came through a “non-hearing resolution” process — also in the new system — allowing the Title IX coordinator to propose a resolution of the case acceptable to both students, forgoing a hearing. It is a process that some other universities have decided is inappropriate to apply to sexual assault cases — it potentially creates pressure for an accuser to negotiate with an assailant — and that the Department of Education has discouraged.
Stanford officials said 10 of 16 cases so far under the current system had been decided in this way. But some faculty members, as well as lawyers who have represented accusers in the process, have objected to this option, calling it a form of plea bargaining.
“It is frustrating because universities should be getting this right, and they are not, and the idea that they can keep pushing this under the rug doesn’t make the campus any safer, as we keep seeing as these incidents come to light,” said Crystal Riggins, a lawyer who has represented accusers at Stanford. “The process is complex and takes a long time. It is very difficult to get a 3-0 decision from a panel, and these young women are terrified and traumatized and just want it to be done.”
The woman who agreed to talk about her case described an arduous process that took nearly nine months and, she said, was plagued by several lapses.
On the afternoon of June 25, 2015, the woman, along with her lawyer, took their places at a crowded table inside the Tresidder Memorial Union at Stanford.
Her lawyer was there only for support and was prohibited, under the rules of the proceeding, from guiding her testimony. In the middle of the table was a telephone for the young man to listen to the proceeding. She had about 30 minutes to give her account of what had happened four months earlier.
Afterward, the football player was allowed to email follow-up questions to the panel that they could decide to ask or not.
She began the hearing feeling that the deck was stacked against her. She said that only the night before did she see the accused’s statement for the first time, and that it included new statements from two of his football teammates. She said she had exchanged emails with an administrator in May and June 2015 and “not once” did that administrator “indicate that any other files had been added to the investigation file, nor did she respond to my previous questions regarding the investigation file,” according to her appeal, which included the email exchange with an assistant dean coordinating the process.
When she asked to postpone the hearing so she could ask for redactions of statements that she deemed prejudicial as well as suggest follow-up questions for an investigator to ask the witnesses, she said she was denied without an explanation.
“I was told to stick to the facts on my statement, and I did,” she said. “He was allowed to speculate on why I ‘targeted’ him. His teammates, who were not even involved in that night, basically said he was a great guy and was being punished for consensual sex.”
After listening to his version, she said that she offered follow-up questions to the panel. She said that they did not ask them. The next day she was notified that a majority of the panel agreed with her that a sexual assault had occurred, but the football player would not be given a finding of responsibility.
By then, she said, she had already missed one quarter of school and would eventually miss two. She was, and remains, in therapy and on anxiety medications.
Within days, with the help of a lawyer, she appealed the decision on the grounds that the “investigation process was so inequitable and unfair” that it violated her rights as a victim of sexual assault under Title IX. Along with numerous procedural errors, she said, she was bothered that the man’s status as a football player was injected into the proceedings by him and his teammates.
Mr. Etchemendy, the provost, insisted there was no special treatment for athletes or anyone else. Despite two 3-2 rulings that the football player had committed sexual assault, Mr. Etchemendy said, the coach of the football team would not have been notified because the player had not been found responsible. The player apparently received no punishment.
“Unless there is reason — for safety — we do not inform the individuals’ teachers, their conductor in the choir if they’re in the choir, the football coach if they’re on the football team, or any other head of an activity that they participate in,” Mr. Etchemendy said.
‘My Worst Nightmare’
Before the second hearing, the panel saw statements from the accused that said he had been “reassured” by Stanford’s Title IX investigator that “situations like these more times than not result in nothing,” and that a lawyer for the Associated Students of Stanford University had reviewed his response and advised some changes, “but mostly began to sympathize with me,” and said that “what I was going through was unfair.”
The administrator organizing the hearing acknowledged that those statements should have been redacted because they were not testimony germane to whether a sexual assault had occurred. (Under the new system, an outside lawyer decides what will be allowed as evidence.)
After the second five-member panel came back 3-2, the accuser appealed again. She asked that Stanford’s Office of Community Standards “issue a no-contact order to protect me” from the accused. One had been in place throughout the months of proceedings. On at least two occasions, the football player had to be asked to leave parties by a resident dean — and on another, by campus security — because of his apparently violating that order, both the accuser and the accused acknowledged in statements.
“The past nine months of my life have been the worst of my life,” she wrote to Greg Boardman, Stanford’s vice provost for student affairs, on Oct. 20, 2015, as part of her appeal. “I’ve experienced fear, anxiety, depression, self-doubt, and hatred in ways I never imagined during the first 20 years of my life. An introduction to someone new in early February turned into my worst nightmare — every woman’s worst nightmare.”
Her appeal for a third hearing and a no-contact order was denied, without explanation.
Stanford said that it accommodates accusers even after their cases come up short. They can secure special housing arrangements or even escorts to certain parts of campus. But officials said that they could not impose anything that looked like penalties, even for safety reasons, on those who are found not responsible — even if the vote found by 3-2 or, now, 2-1 that sexual assault had occurred.
“I think you would face legal liability to that person if after that process he was told, ‘You can’t be in this part of the campus,’” said Ms. Karlan, the law professor who is chairwoman of the sexual assault advisory committee.
The woman is trying to decide whether to return to campus or pursue her degree elsewhere. She said that she loved the school and that she was never happier than in her time there. She is worried about encountering the football player if she returns to campus.
“But do I have to leave Stanford to feel safe?” she said. “I’m certain that this isn’t the way the Title IX process was meant to work.”
An earlier version of this article misstated the location of the sexual assault for which the Stanford swimmer Brock Turner was convicted. It occurred on campus, not off campus. The article also included incorrect information from university officials about the number of expulsions for sexual assault that have resulted from a new policy Stanford put in place in February. There has been one expulsion, not none.
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