Amidst New Regulations, California Universities Grapple with Response to Sexual Violence

Leah Francis addresses the crowd at a “Stand with Leah” protest. Photo: Tessa Ormenyi

In 2014, a storm of protests erupted at Stanford University after student Leah Francis sent an email with a message that went viral: “Stanford did not expel the man who raped me.”

Though the majority of a campus judicial panel had found the man responsible for committing sexual assault, they determined he would be allowed to return to campus to finish his coursework and graduate with his class after completing 40 hours of community service, a sexual assault awareness program and a five-quarter suspension, starting in summer quarter—which, Francis stated in her email, amounted to no more than a “gap year.”

A number of sexual violence cases have tarnished the university’s reputation over the past couple years, further fueling student activism on campus. In one highly publicized case, two cyclists interrupted freshman swimmer Brock Turner while he was allegedly raping an unconscious woman in the bushes. After Turner took off running, the cyclists chased him down and restrained him until police arrived.

Though Turner faces three felony charges he wasn’t expelled from Stanford. Instead, he voluntarily withdrew.

According to data compiled by Stanford law professor Michele Dauber, the university reported 280 cases of sexual assault to the federal government between 1997 and 2014. Of these, only 18 cases have been adjudicated by the university and in only 10 instances has a student been found responsible. In the entire history of Stanford University, only one student has been expelled for sexual assault.

“If you look at the numbers, you can see that we have a broken process,” says Dauber.

At the end of 2015, Stanford released the draft of a new judicial process for complaints of sexual violence among students—including sexual assault, domestic violence, dating violence, stalking and other forms of sexual misconduct. The university is currently considering comments from faculty and students and plans to implement the new policy on a pilot basis during the winter quarter of 2016.

In a Q&A that was released by Stanford’s Office of University Communications, Elizabeth Woodson, Stanford senior and co-chair of the Provost’s Task Force on Sexual Assault Policies and Practices stated about the new policy, “Students were upset over the last year, and there were a lot of feelings of mistrust. We acknowledge that and hope this is the beginning of rebuilding that trust. What we’re setting out to achieve is a safe campus, built on respect, that puts student wellbeing as a priority. We feel the recommendations, if followed through, will do that.”

Yet sexual violence reform advocates on campus say the proposed adjudication process will further minimize the likelihood that perpetrators will be found responsible for sexual assault. They claim the policy is an outlier in that its definition of sexual assault is the narrowest of all schools in the nation and, in addition, it requires that a hearing panel reach unanimous consensus before determining that a student is responsible.

Numerous attempts were made to interview representatives from Stanford University for this story, but the administration declined to comment.

“I see Stanford as making some serious missteps, clearly having their own interests at heart and not those of survivors,” says Tessa Ormenyi, a 2014 alumna whose work currently focuses on survivor advocacy at Stanford. “The university needs to step away from [concerns about] the reputation of its brand in the interest of preventing and responding to violence.”

Stanford is not alone in doling out minimal sanctions in cases of sexual violence. Probing into a decade of complaints to the U.S. Department of Education, a 2010 investigative report by the Center for Public Integrity revealed that students deemed responsible for sexual assault on college campuses frequently face little or no consequences for their actions. In fact, the report stated that victims often drop out of school while their alleged perpetrators graduate.

The federal government is currently investigating more than 160 post-secondary institutions for possibly violating the civil rights of students who have been victims of sexual violence. Under Title IX of the Civil Rights Act, students at federally funded institutions are protected from discrimination that results from gender-based violence—including sexual assault, domestic violence, dating violence and stalking. In order to remain eligible for federal financial aid, universities must prevent a hostile environment that results from sexual violence, remedy its effects and ensure that the disproportionate burden of remedies does not fall on victims.

Seventeen colleges in California are under Title IX investigation for the way they’ve handled complaints of sexual violence. Stanford has four cases pending—more than any university in the state.

Adjudicating sexual violence on campus

In response to new guidelines that went into effect in 2015, California universities are grappling with revising sexual violence policies to achieve compliance with state and federal regulations.

Under the “Yes Means Yes” law, California became the first state in the nation to require universities receiving state financial aid to adopt an affirmative consent standard in determining whether sexual contact is consensual.

Under the Campus SaVE Act, a set of amendments included in the Violence Against Women Reauthorization Act, universities are required to gather and disclose data reflecting campus reports of not only sexual assault, but also domestic violence, dating violence and stalking. They are also required to update their policies for responding to such cases of sexual violence, identify possible sanctions for those found responsible, provide confidentiality protection for victims and offer new students and employees sexual violence prevention programs.

Along with Stanford, the California State University (CSU) and University of California (UC) recently revised their sexual violence policies. CSU’s systemwide policy was updated in 2015 to include an affirmative consent policy statement as well as create the position of a designated Title IX coordinator and a confidential campus sexual assault victim advocate on each campus.

As part of a comprehensive approach to addressing sexual violence, at the beginning of 2016 UC implemented new system-wide procedures for investigating, adjudicating and imposing sanctions in student cases of sexual violence. Kate Moser, spokesperson for the UC Office of the President, says that the goal of the new judicial process is “to ensure consistency and fairness across the UC system and to ensure a trauma-informed approach across all UC campuses.”

In comparing sexual violence policies among numerous schools throughout the state and nation, Dauber says there are several factors in Stanford’s proposed policy that make Stanford “the least-friendly school for victims of sexual assault and dating violence among our peer schools—and maybe even in the country.”

One of the main objections that Dauber and other sexual violence reform advocates have about the new policy is Stanford’s current definition of sexual assault, which includes only acts of penetration or oral sex that occur under force, threat, duress or while a victim is incapacitated.

This definition change occurred in 2014, when the administration was under pressure from activists to impose sanctions of expulsion for students found responsible for sexual assault. Dauber says the administration gave no notification before narrowing their definition to exclude any type of nonpenetrative sexual touching, even conduct that falls under felony sexual battery. Then they announced that expulsion was approved as a possible sanction in cases of sexual assault.

“The University said, ‘yes, we agree to have expulsion’—and we were all like, ‘yay!’” recounts Dauber. “But then we realized the definition had been changed and that in the majority of cases the new sanction wouldn’t apply.”

Under the new definition, she says, a perpetrator could “drug a victim into unconsciousness, strip them naked, fondle them without penetration, masturbate and ejaculate on them, take photos and post them on the Internet—and that would not be considered assault; it would be considered sexual misconduct.”

She adds that, since only one-third of sexual assault incidents on college campuses involve penetration, this narrowed definition essentially shaves off two-thirds of all sexual assault cases and relabels them as misconduct.

California Coalition Against Sexual Assault (CALCASA) defines sexual assault broadly, as any sexual contact that is forced, coerced or unwanted. “We do that intentionally because we recognize that sexual assault is on a continuum,” says Executive Director Sandra Henriquez. “In the past, the definition has been [solely] around forcible rape. We don’t want to go back to that because there’s not enough room to hold people accountable.”

In addition, a narrow definition of sexual assault plays down the harmful nature of nonconsensual sexual contact that doesn’t involve penetration. “Survivors hate that definition because they feel like it’s minimizing their experience,” says Dauber. “It also has negative education impacts. We’re trying to teach students not to engage in this conduct, yet we’re sending messages that it really isn’t that bad. Misconduct doesn’t sound that bad.”

UC has taken a broad approach, categorizing acts of sexual assault as involving either nonconsensual penetration or touching of intimate body parts. CSU uses the term sexual misconduct to encompass any nonconsensual sexual activity, breaking it down into categories of rape, sexual assault, sexual battery and other forms of sexual violence.

Fewer findings of responsibility

Another grievance that sexual violence reform advocates have with Stanford’s proposed adjudication process is the fact that, in order to find a student responsible for acts of sexual violence, a three-member hearing panel must unanimously agree. This means that if two out of three panelists believed a complainant was sexually assaulted, the complainant would still lose—and, according to the draft policy, would not receive remedies such as counseling, housing changes or academic accommodations.

“That is incredibly problematic,” says Stanford sophomore Lauren Schlansky. “It’s already difficult to get findings of responsibility… Requiring a unanimous panel will diminish the already low numbers.”

In a review of adjudication models among 29 of Stanford’s peer schools (including the Ivy League, US News Top 20 and Pac-12), Ormenyi found that one-third of schools use an administrative investigator to determine responsibility. The other two-thirds use a panel system, and most require a simple majority. Only Stanford and Duke University require a unanimous vote of three to determine responsibility.

UC has implemented systemwide mandatory minimum sanctions for various types of sexual violence. For example, there will be at least a two-year suspension—and possible expulsion—for any student who engages in sexual assault, dating violence, domestic violence or stalking that involves either force, violence, menace, duress, incapacitation or recording, photographing or posting sexual images without consent.

Though Stanford’s policy specifies that expulsion is the expected sanction for students who are found responsible for sexual assault, Dauber reiterates the problem that “few, if any, people will be found responsible under the new narrowed definition of sexual assault.”

Ormenyi has talked with several survivors who’ve chosen not to report sexual violence to the university because the process is so long and arduous, and they’ve seen few cases of successful adjudication in the past. With the proposed judicial process, Ormenyi says, it’s unlikely that survivors will find justice or remedy from Stanford anytime soon. She adds that she’s heard survivors say, “It’s not worth it—I’ll just wait until I graduate to get away from it.”

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