Four Takeaways From Stanford’s Surprising New Sexual Assault Policy

Last Spring, Provost John Etchmendy announced the creation of a task force to revise Stanford’s sexual assault policies. The task force, headed by undergraduate student body President Elizabeth Woodson and Dean Elizabeth Magill of the law school, has been conducting research and deliberating for the better part of this academic year. The committee seems to have been completely leak-proof during its deliberations — the content of its recommendations remained a mystery to observers until the full, 30-page report was released this morning in a campus-wide email from the provost.

Before getting into the specifics of the new policies, I should acknowledge my background on this issue. I have written critically about the wave of campus rules aimed at reducing due process protections for students accused of sexual assault, and I have been especially concerned by the new “affirmative consent” sex rules, which the Stanford sexual misconduct office currently defines as “active and affirmative verbal consent for every sexual encounter and for every sexual act initiated during these encounters.” I attended an ASSU sexual assault town hall to argue against policies that seemed to presume the guilt of the accused, and I met with representatives of the task force to express my concerns about how draconian sex regulations could endanger civil liberties. I was prepared for a draconian new sexual assault policy that would consolidate the presumption of guilt against the accused and further erode civil liberties on campus.

I was wrong to be concerned. For the most part, the report is balanced and sensible. Of course, it does not come close to addressing the full range due process concerns surrounding the current sexual misconduct system, but it doesn’t make the situation worse, either. On the whole, the new policies are a surprising win for civil liberties advocates. Here are four major takeaways from the report, Etchmendy’s letter to the campus, and the accompanying commentary from Woodson and Magill.

(1) The new policies back away from “affirmative consent.”

Although the Stanford Sexual Misconduct Office still refers to affirmative consent on its website, these terms are nowhere to be found in the task force’s report. Rather, the report refers to the California penal code’s (much more reasonable) definition of sexual assault: that is, sexual acts “accomplished by means of force, violence, duress, or menace” or “inducement of incapacitation or knowingly taking advantage of an incapacitated person.” As Magill noted in her Q&A with the Stanford NewsCenter, “This is egregious behavior. One does not accidentally do this.”

A careful read of Stanford’s guide to “Prohibited Sexual Conduct” suggests that while affirmative consent is still required, having sex without obtaining affirmative consent is “sexual misconduct” that does not rise to the level of “sexual assault,” so expulsion is not the recommended punishment. To be sure, I would prefer if ongoing affirmative consent, which is not granted in a host of routine sexual encounters, were stricken from the books entirely. But its absence from the task force’s official recommendations — and the emphasis on the criminal standard instead — is a welcome step forward.

(2) Students will be allowed to have lawyers at the proceedings.

One of the aspects of campus sexual assault tribunals that has earned them a national reputation as “kangaroo courts” is that attorneys are often barred from the proceedings. The Harvard Law School professors who spoke out against their university’s sexual misconduct policy last October listed as one of their chief complaints “the failure to ensure adequate representation for the accused, particularly for students unable to afford representation.”

Stanford’s new policies makes important reforms on this front. Stanford’s existing non-discrimination policy states that “an attorney is not an appropriate representative” for the resolution of sexual misconduct complaints. The new report, however, suggests that this policy should change: Students should “be informed that they may have one support person available to advise them throughout the process, who may be an attorney.” While the attorney may not speak on behalf of the student, he or she may “provide and counsel to the student” during proceedings. The report also raises the possibility of making free legal counsel available to students involved in sexual misconduct cases.

(3) Panelists must be unanimous in order for a student to be found guilty.

Under the existing sexual misconduct process, four out of five reviewers must agree that a student is guilty in order to impose sanctions. The Magill-Woodson recommendations require that the finding be unanimous (though there are three rather than five reviewers). Moreover, under the existing process, a panel may recommend expulsion with one dissenting vote. Under the new system, the panel must be unanimous in order to recommend expulsion. The requirement of unanimity, combined with the report’s strict definition of what constitutes sexual assault, makes it substantially less likely that an innocent student will find himself kicked off of campus.

(4) The report recommends investigating the way alcohol interacts with sexual assault.

The report recommends that the university “examine patterns of campus behavior associated with alcohol consumption as they relate specifically to the issue of sexual violence.” Believe it or not, this has always been a taboo subject among hard-line sexual assault activists. When Slate’s Emily Yoffee wrote a well-considered piece advising men and women to avoid frequent binge-drinking because it is strongly correlated with incidents of sexual misconduct, she was excoriated for “blaming the victim,” even though she explicitly addressed and disavowed this concept.

The fact is that some of the best proposals for addressing sexual assault are unrelated to the actual adjudication process. Yale Law School professor Jed Rubenfeld has argued persuasively that reducing the the incidence of sexual assault requires breaking “the links among alcohol, all-male clubs and campus party life.” It is encouraging that the report at least gestures to this very important suggestion.

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Update, 4/24/2015: John Wesley Lowery notes that an earlier version of this article omitted the “incapacity” component of Stanford’s definition of sexual assault. The article has been updated to reflect the full definition, as written in the Stanford administrative guide.

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Jason Willick, a senior studying history, is the editor in chief of Stanford Political Journal.