Stanford under pressure to reform sexual-assault policies

Seconds before Stanford University Provost John Etchemendy told a room full of faculty and students in late October that “one assault is one too many on this campus,” three students entered, each carrying a bulky, dorm-style twin mattress.

As Etchemendy continued talking about the university’s efforts to prevent on-campus sexual assault, the students propped their mattresses up against a wall and walked to the front of the room. They took three empty seats directly in front of the provost.

Earlier that unusually warm fall day, those three students and about 100 others had walked in a silent, funeral-like procession from White Plaza to Stanford’s emblematic Main Quad, carrying mattresses above their heads — symbolic of the heavy emotional weight that survivors of sexual assault bear. Others carried signs that read, “Stanford, will you carry the weight?”; “Do better Stanford” and “End of case ≠ end of weight.”

The “Carry That Weight” protest was one of many that took place on college campuses across the nation that day, inspired by Emma Sulkowicz, a Columbia University visual arts student who decided for her senior thesis last year to carry with her everywhere the dark blue mattress on which she was allegedly raped in her dorm by a fellow classmate and friend.

Sulkowicz, who quickly made national headlines for her artistic and political protest, even attending the president’s State of the Union as Senator Kirsten Gillibrand’s guest, planned to carry the mattress until the male student was expelled from campus.

Sulkowicz is one of the many female college students who, frustrated with the lack of timely justice they felt their university was equipped or committed to bringing to their allegations of sexual assault, went very public with their very personal stories. Sulkowicz at Columbia, Leah Francis at Stanford, Lena Sclove at Brown University, Tucker Reed at the University of Southern California, among others, have become synonymous with campus sexual-assault issues. The firestorm of student activism they ignited propelled a social movement that has made sexual assault impossible for university administrations, including Stanford, to ignore.

“We’ve been running very fast but unfortunately, the crisis has been outrunning us,” Etchemendy admitted that October afternoon, speaking at a faculty panel event called “Sexual Assault on College Campuses — What Faculty Need to Know.”

This became ever more apparent at Stanford over the last year, beginning with a sexual-assault protest last June where more than 300 students came out in support of Francis, chanting rallying cries like “Rape is a crime. Enforce Title IX” and listening to other sexual-assault victims speak publicly about their experiences, many for the first time.

Francis organized the protest after publicly challenging the administration’s handling of her case, alleging the university’s investigation took more than twice as long as the 60 days recommended under federal gender-equity law Title IX and that the consequences imposed on her assailant, whom a university panel eventually found responsible for sexual misconduct and violation of university policy, fell short of his crime. Francis, unable to find the justice she hoped for in her own case — and on behalf of future Stanford students, she said — filed a complaint with the U.S. Department of Education’s Office for Civil Rights in December in the hopes that the federal government would open a broader investigation into Stanford’s adherence to Title IX. Two months later, it did.

Meanwhile, a Stanford fraternity lost its house for two years after a sexual-harassment investigation. One former member wondered if the university was taking advantage of the current climate around sexual assault, making a perhaps undeserved example out of the fraternity.

Then came the accusations in January that Joe Lonsdale, Stanford alumnus and co-founder of Palo Alto software company Palantir, had sexually assaulted and abused a former girlfriend, Ellie Clougherty, during a year-long relationship that took place while she was a Stanford undergraduate, according to a civil lawsuit Clougherty filed against him on Jan. 27. Lonsdale has not only fired back at Clougherty’s lawsuit with a counterclaim but also at the university for allegedly bungling its investigation of her complaints. In his claim, Lonsdale said that Stanford neither informed him of any details of Clougherty’s allegations that formed the basis of its investigation, nor gave him an opportunity to respond to any evidence against him.

That same month, an all-star Stanford swimmer was arrested after two witnesses found him on top of an unconscious woman outside a university fraternity late one January night, according to a university police report. Brock Turner, a freshman from Ohio who has since withdrawn from the university, has been charged with five sexual-assault charges, including rape of an unconscious person and assault with intent to commit rape. The university has said he is not permitted to return to Stanford.

And in a sign of the times, Etchemendy chose sexual assault as one of two topics to talk to parents about in a Parents’ Weekend address on Feb. 27. He told them that the university has been “both proactive and reactive” in its efforts to combat sexual violence, from increased education and the creation of a dedicated Title IX office to setting a goal to create “the best support and response system when an incident occurs.”

“The bottom line is that victims of sexual assault have for too long been subjected to poor treatment at the hands of dismissive and doubtful institutions, whether in the criminal justice system or at colleges and universities,” he said. “And that must end, wherever it occurs.”

Leah Francis case tests university policies

Stanford’s day of reckoning with sexual assault came last June, when Francis, then a 21-year-old senior, sent an email campuswide and to many media outlets that began, “Five months ago, I was forcibly raped by another Stanford student.”

The day after Francis’ email was sent (with the subject line, “Stanford University Lets Rapists Graduate — Only Suspends Them”), more than 300 students rallied around her. They scrawled their protest in chalk on campus quads and walkways and followed Francis as she marched out of White Plaza to an administrator’s office, whose door she marked in red tape that spelled “IX,” a reference to Title IX.

That day, a #StandWithLeah hashtag went viral on social media, bringing the sexual-assault spotlight to Stanford on a national level. Francis was shocked by the overwhelming support, with students she didn’t know joining her campaign and creating Facebook groups to further her message.

“People just like to have a face for something and people have been waiting for there to be a face for this problem,” Francis said in June. “There are a lot of people struggling in silence.”

Francis’ story also brought rare light to the complexities of the university’s process for adjudicating sexual-assault cases.

Six days after the Jan. 1, 2014, assault, which happened in her and the male student’s hometown of Juneau, Alaska, on New Year’s Eve, Francis reported it to Stanford. She also filed a police report; the two processes went forward independently over the next several months. The university is required under Title IX to investigate any reports of sexual violence, regardless whether an incident is the subject of a criminal investigation or whether it took place on campus. (“The goal of Stanford’s investigation is not to determine whether a crime has been committed, but whether University policy has been violated and, if so, what discipline is appropriate,” the provost’s office website states.) Among other things, the university has an obligation under the law to ensure that a victim is not subject to a hostile environment on campus and is able to continue with his or her education without fear.

For the next five months, Francis waited for the administration to take action through a relatively new process created explicitly for dealing with allegations of sexual violence.

Several years before sexual-assault reform became the issue of the year at campuses across the country, Stanford put in place this new disciplinary process which, in the words of Etchemendy, was “designed to make it easier and less intimidating for assault victims to come forward.”

Known as the Alternate Review Process, or ARP, the process created a disciplinary pathway specifically for serious allegations of misconduct relating to sexual assault, sexual harassment, relationship violence or stalking. (Most other serious student misconduct is dealt with through a disciplinary process set up under the university’s Student Judicial Charter of 1997.) ARP, which was first piloted in 2010 and then officially adopted in 2013, laid out a clear process from beginning to end for what happens when the university receives a complaint of such an allegation.

Though at the time this new policy was seen as progressive and a marked improvement over what was in place before, ARP has since been criticized by students, faculty and administrators alike who characterize it as the exact opposite of Etchemendy’s description: cumbersome, time-consuming and often painful and unsatisfying for victims.

Before ARP, Stanford’s process for handling sexual assault “had some features which led survivors to see it as unwelcoming,” said law professor Michele Dauber, who co-chaired the Board of Judicial Affairs and led the effort to reform this process in the mid-2000s. These features included allowing direct cross-examination of the alleged victim by the alleged perpetrator and a single, semi-public trial-like hearing.

“As a result, survivors almost universally declined to participate,” Dauber said.

In the 13 years before ARP was piloted (the only years for which data exists), Stanford reported 175 forcible sexual assaults to the U.S. Department of Education under the Jeanne Clery Act, a federal law that requires colleges and universities to regularly report campus crime statistics. The Clery Act reports represent a range of offenses, from forcible fondling to rape, as well as reports from non-students, students who decline to move forward with an investigation, Stanford’s hospitals and faculty residential neighborhood, according to university spokeswoman Lisa Lapin. “The cases that can be adjudicated are only those where the accuser and accused are both students, and the former was willing to come forward,” Lapin said.

In those 13 years, there were only four disciplinary hearings and two findings of responsibility, or determination that a student had committed sexual misconduct, according to Dauber.

The first few years after ARP was put into place produced more action. There were 12 hearings in the first three years and seven findings of responsibility.

Under ARP, sexual-assault cases are reviewed by panels made up of three students and two members of Stanford faculty and/or staff who receive training in subjects like sexual harassment, relationship violence, Title IX and due process. The dean of students selects these panel members, seeking those who are not biased, do not have a conflict of interest in the case being considered and are not well-known to either the alleged victim or alleged perpetrator, university policy reads.

Some universities, facing criticism and concern about the capacity of such panels to determine the outcome of serious sexual misconduct, have opted to instead source this review process out to outside experts. At Stanford, the sexual-assault task force convened by the provost last summer is also considering whether or not students should serve on these panels.

An Alaska attorney representing the male student in Francis’ case released a statement on his behalf in August, asserting her client’s innocence and condemning the university’s investigative procedures.

“Universities lack the investigative capabilities and experience of law enforcement agencies and are ill-suited to handle a case like this one,” Kristin Swanson said. “Unfortunately, Stanford enabled false accusations and their faulty decision gave the accuser undue credibility.”

This statement came as Juneau’s district attorney announced that his office would not be bringing any charges against the male student due to the fact that there was insufficient evidence to prove that he raped Francis. Under Alaska law, the standard for determining whether an assault is rape hinges on whether the victim verbally says “no” or does something to indicate strong lack of consent.

Some also wonder if universities’ lower burden of proof for finding students responsible for sexual assault — a preponderance of evidence that says it is more likely than not that the allegations are true, rather than the courts’ more rigorous “clear and convincing” evidence standard — stacks the odds against the accused. The federal government instructed universities to use this lower standard of evidence in an April 2011 “ Dear Colleague” letter on sexual violence that clarified what constitutes Title IX violations and universities’ obligations to respond to reports of sexual violence.

Instead of the prior process’ face-to-face questioning and a trial-like hearing, the review panel conducts a series of private interviews with the involved students and witnesses. Both the alleged victim (referred to in university policy as the “impacted party”) and the alleged perpetrator (referred to as the “responding student”) have a right to listen on the phone to these interviews and are given an opportunity to provide the review panel with follow-up questions to ask the other party and witnesses.

An investigator — who could be the university’s full-time employee or one of multiple off-campus contractors, according to Lapin — also creates an exhaustive “investigation file” with interviews with the responding and impacted students; any relevant written documentation, including a written statement from both students if they wish; and the answers to any follow-up questions posed by either party to the other student or witnesses. Under university policy, the investigative process should take 30 days or less.

The investigation file is provided to the responding and impacted students and the review panel. The students have five days to ask any further questions or respond, and the panel will review and discuss all of the information, potentially do more interviews and then issue a finding of responsibility — and should do so within one week under ARP. Four of the five reviewers must agree for a student to be held responsible.

Under university policy, both students are supposed to be provided with a list of impartial and confidential faculty and staff who can advise them throughout the process.

Debating Stanford’s sanctions

Francis described the ARP as a “broken and toothless policy” and a traumatizing process, one that took far longer than the amount of time recommended under Title IX and resulted in “illusory” consequences.

On May 6, slightly longer than the seven days in which the panel was expected to issue sanctions after handing down its findings of responsibility, the reviewers issued their unanimous consequences for the male student: a five-quarter suspension to begin that summer (after graduation, which the student, a senior, would be allowed to attend), 40 hours of community service and sexual-assault education. The panel also said the male student would be allowed to return to Stanford for a graduate program in fall of 2015 and recommended a no-contact order for as long as Francis and the male student remained at Stanford.

“When I got those sanctions, I thought, ‘Was this worth it?'” Francis said last year.

“Maybe I figured out why only 13 people have gone through ARP,” she added.

Four of the five panel members who reviewed Francis’ case] agreed that the sexual act was committed through use of force and that she “experienced duress and fear” as a result, according to an appeal that Francis later issued. The panel also unanimously found the male student responsible for sexual misconduct (meaning the sexual act was unwanted by Francis and she had not given consent) and for violating the university’s Fundamental Standard, a policy that governs student behavior both within and outside Stanford.

And although the panel also recommended that the male student be relocated from university housing “to a location at a reasonable distance,” from Francis’ residence, he remained in housing down the street from her for nearly two weeks, she said. It wasn’t until May 9, when Francis met with Dauber for the first time (friends had connected her with Dauber, a known sexual-assault advocate on campus) that the male student was finally moved out of university housing, Francis said. (Dauber said that when she looked into it, she was told that the delay was attributed to the fact that Stanford’s Title IX coordinator had gone on vacation.)

Francis wondered why expulsion was off the table when the male student had been responsible for violating Stanford’s Fundamental Standard, which reads: “Students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens. Failure to do this will be sufficient cause for removal from the University.”

When Francis requested a rationale for the lack of an expulsion, the panel explained in a statement: “The Responding Student demonstrated a commitment and ability to abide by University policy moving forward. The panel felt that his presence on campus will not constitute a threat to the Stanford community, and that expulsion is therefore unwarranted.”

Francis appealed the sanctions.

Her case also illustrates some arbitrariness in Stanford’s sanctioning process. The university’s practice is to remove the responsible student from campus for as long as the victim is still there, meaning that a student responsible for sexually assaulting a senior might be suspended for one quarter, and a student found responsible for sexually assaulting a freshman could face a four-year suspension.

In addition, in Francis’ case, the male student was permitted to return to Stanford for a graduate program after the suspension, and no sign of his misconduct would be noted on his transcript. (One protection afforded to the accused under ARP is that “no record of any violation or alleged violation will be placed on his/her transcript,” except in the case of expulsion, in which case it will read “dismissed”).

After Francis’ appeal, the male student’s original sanctions were replaced with a two-year delay in his degree conferral to account for the serious harm to Francis, which she said ranged from psychological and emotional trauma to financial, due to the fact that she fell behind in school and couldn’t graduate on time. He is still allowed to come back to campus for a master’s program but in the fall of 2016.

Dauber has advocated for the university to create a sanctioning guideline that is less arbitrary and sets out specific consequences for specific kinds of assault.

This, she has said, would hopefully incentivize more sexual-assault victims to report.

“ARP puts a great demand on the time and emotional energy of victims that they feel is not worth it given the low sanctions that are (given) out at the end,” Dauber told a crowd of faculty and students at a sexual-assault panel event in October. “Stanford, in my opinion, has had a tough time imposing sanctions that victims feel are commensurate to the offense.”

Francis’ case also sent mixed messages to the Stanford student body: A student is found responsible for sexual assault through force but remains on campus, can walk at graduation and return for a master’s program without a trace of his actions on his transcript. Soon after the sanctions for Francis’ assailant were released, a male student she didn’t know burst into her room in the middle of the night and started yelling, “Don’t you think he would have been punished if he had actually done it?”

“That’s the reason that people don’t report,” student Elisabeth Dee, a sexual-assault survivor and campus activist, said of this instance of retaliation. “And I have a ton of friends who didn’t report, too.”

Stanford seeks to enact reforms

The university has made significant efforts in recent years to keep up with the tide of sexual-assault reform. Last May, Stanford hired its first-ever full-time, dedicated Title IX officer. Catherine Criswell, who took over for a person who had other duties and was working on Title IX part time, came to Stanford directly from the federal government’s Office for Civil Rights, with a 19-year-long career and specialization in sexual harassment and violence.

Stanford also expanded the Title IX office with the hiring of an administrative coordinator in August and a full-time Title IX investigator to help ensure investigations are completed within 60 days. The university also hired two new confidential counselors to serve as 24/7 resources for sexual assault, meeting at least in part a demand expressed by Francis and other student activists for more confidential counseling resources on campus (there are three confidential offices for such support: the Bridge Peer Counseling Center, the Office of Religious Life and Counseling and Psychological Services, or CAPS). Students have also asked that Stanford’s Office of Sexual Assault and Relationship Abuse (SARA), which was opened in 2011, be more fully staffed; a new full-time assistant director was hired and began work on Feb. 2.

Further education on topics like consent and how to be an upstander was also incorporated into New Student Orientation this past fall. The university also launched a campus climate survey that Lapin said in January is “expected to be issued shortly” but has not yet been released.

Stanford is also funding a new class that Dauber will teach during Sophomore College, a three-week residential summer program for second-year students, called “One in Five: The Law, Policy and Politics of Campus Sexual Assault.” (One in five is the oft-cited, government-approved statistic on college sexual assault.) The class will include trips to the Office for Civil Rights in Washington, D.C., and sexual-assault reform advocate Senator Kirsten Gillibrand’s office in New York, Dauber said.

And at the June 12, 2014, faculty senate meeting, as Francis led yet another protest outside, Etchemendy announced the creation of his sexual-assault task force, charged with reviewing and issuing recommendations on university policy and practice.

This task force, co-chaired by Stanford Law School Dean M. Elizabeth Magill and ASSU President Elizabeth Woodson, soon came under fire for its makeup. Among the almost 20 members, there were no survivors of sexual assault and no students of color.

The university soon added a survivor and an African-American female graduate student. Etchemendy admitted the mistake, which he called a “screw-up,” at the October faculty panel event.

Another notable absence on the task force was Dauber — a tenured law professor who is arguably the strongest (and most vocal) sexual-assault reform advocate on campus, having served on the Sexual Violence Advisory Board that created ARP and co-chaired the board that implemented it.

“I had originally proposed the formation of the committee prior to (when) the Francis case became a public controversy, but when I later asked to participate, I was told it was full,” Dauber told the Weekly last July when the initial 15 members of the group were announced.

The provost’s committee, which began its work last summer, was asked to seek input from the campus community and to review and make recommendations about Stanford’s activities in three areas: education and prevention, support following an incident and adjudication of reported cases of sexual violence, including both the Title IX investigation process and the disciplinary process.

Throughout this year, the provost’s task force held town hall meetings with both undergraduate and graduate students; gathered research and data; had experts and other university departments involved in sexual assault come speak at their meetings; and solicited feedback via a new university website dedicated to sexual assault ( notalone.stanford.edu, much like the White House’s notalone.gov, which was launched in April 2014 in connection with federal efforts to address college sexual assault).

Sophomore Dee, concerned by what she called a disconnect between the task force’s efforts and the student voice on sexual assault, joined with other students to organize an event to get people to submit comments via the Not Alone feedback form, which she said many students were unaware even existed.

“In the end I think we had about 500 submissions, which was great,” Dee said. “So now (the provost) can’t ignore us. We left what, like, 10 mattresses outside his door?”

The task force was originally slated to make a set of recommendations to the provost last fall but has yet to release its final report. For months, students have been waiting with bated breath for this report, speculating whether it will include a recommendation of expulsion as the default sanction. This delay, in a way, has sucked the air out of their activism — and put the university in control of the issue. Lapin said last week that the administration is “very close to receiving the report,” which will be released along with the provost’s response to the group’s recommendations.

“There was this big activist movement that had all this momentum, and now we’re all just waiting,” Dauber said. “That’s very unfortunate.”

The task force’s work has also been shrouded in secrecy, with members either declining to comment until the report is released or automatically forwarding requests for media interviews to Lapin. Lapin has denied interviews with the provost, vice provost and dean of students.

“It is very important that we give the task force the opportunity to make its recommendations, and given the timing, it really would not be appropriate for the administration to comment further on any area to be addressed by the task force,” Lapin wrote in a March 9 email.

But rare quotes from administrators, task force members and Title IX Coordinator Criswell appeared in the January cover story for Stanford’s alumni magazine, titled “ Untangling the Knot.”

“The fact that students are owning this — it’s the talk everywhere — is unlike anything else I’ve seen,” Vice Provost for Student Affairs Greg Boardman told Stanford Magazine.

And from task force co-chair Magill: “It’s crystal clear that universities have the obligation to provide a safe environment.”

Despite the fact that almost every Stanford Magazine cover story has a named byline attached to it, this cover story was written by “magazine staff.” Stanford Magazine editor Kevin Cool said he and Deputy Editor Ginny McCormick were the “principal writers of the sexual-assault story, but since neither of us really felt we owned the piece and there were several other contributors as well, we decided to just credit the staff.”

This sense of a lack of transparency permeates sexual-assault issues at Stanford. The university claims it can shed no additional light on its policies and on sexual-assault cases due to student-privacy laws.

Unless a student waives his or her privacy rights under the Family Education Rights and Privacy Act (FERPA), the university is legally unable to comment on specific cases. (Lapin said that Stanford has asked for waivers in some cases, but they have not been granted, “including for cases in which involved parties have actively sought public attention.”)

“Universities, who I guarantee are trying to do the right thing, must remain silent in the face of media questioning about specific cases,” Etchemendy said in his Parents’ Weekend address last month. “And that means many inaccuracies stand unchallenged in the press. It is no wonder that in most press accounts, the university comes across as uncaring or inept. They appear to be stonewalling, while in fact they are just obeying the law.”

Etchemendy ended that Feb. 27 speech with an acknowledgment that Stanford will never be able to completely eliminate sexual assault on a campus with more than 30,000 students and employees.

“But my goal is to have the lowest incidence of any comparably sized campus, along with the best support and response system when an incident occurs,” he said. “And it all begins with a campus culture that is respectful to all and allows each member of our community to take full advantage of the opportunities this university offers.”

And until that goal is met, students plan to continue their advocacy.

“I think even if (the provost) does make change, if default expulsion isn’t on that list of changes, then we’re still not going to be quiet,” Dee said. “If I have to sit in his office, I totally will.”

Related content:

• View the Weekly’s Storify on sexual assault at Stanford

• Should student sex offenders be expelled?

Editor’s note: The print version of this story stated that there was one adjudicated sexual-assault cases in 2013. University spokeswoman Lisa Lapin said March 24 there were two adjudications that began in the 2013 calendar year, one of which was concluded in early 2014. Lapin said that comparing adjudications by year is complicated because some students withdraw their concerns as they reach the adjudication process and some do not reach the hearing process or conclude in the same year they were reported. Four adjudications began in 2012 and three in 2014, according to Lapin.

Editor’s note: The print version of this story stated that there was one adjudicated sexual-assault cases in 2013. University spokeswoman Lisa Lapin said March 24 there were two adjudications that began in the 2013 calendar year, one of which was concluded in early 2014. Lapin said that comparing adjudications by year is complicated because some students withdraw their concerns as they reach the adjudication process and some do not reach the hearing process or conclude in the same year they were reported. Four adjudications began in 2012 and three in 2014, according to Lapin.

Editor’s note: The print version of this story stated that there was one adjudicated sexual-assault cases in 2013. University spokeswoman Lisa Lapin said March 24 there were two adjudications that began in the 2013 calendar year, one of which was concluded in early 2014. Lapin said that comparing adjudications by year is complicated because some students withdraw their concerns as they reach the adjudication process and some do not reach the hearing process or conclude in the same year they were reported. Four adjudications began in 2012 and three in 2014, according to Lapin.