“Every Woman’s Worst Nightmare” (Update)

It’ s impossible to tell from the New York Times article whether a rape occurred, as its substantive description is limited to the conclusory allegations:

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.

For the unwitting, the word “rape” carries horrific connotations. For anyone following the devolution of definition, the word means nothing. In criminal law, rape is a crime, and crimes are comprised of elements, specific conduct usually combined with a mental state of the accused.*

On campus, it means whatever the accuser feels it means, at the time, the next day, a year later. This doesn’t mean that the accuser wasn’t raped. It doesn’t mean she was, either. It only means that we lack sufficient information to have a clue.

Oddly, while the article goes on to state that the school involved, Stanford, refused to give a statement because of internal confidentiality requirements and federal law, the writers state that they sifted through “more than 100 pages of documents from Stanford’s proceedings.” Presumably, they obtained the documents from the accuser, since the accused didn’t cooperate in the telling of this story. So much for confidentiality. And, needless to explain, the investigatory efforts of the school’s Title IX bureaucracy aren’t there to exculpate the accused.

But what this story lacks in information about the foundational anecdote, it makes up for in discussion of the process, and that’s what makes this notable. In the face of anticipated changes to the enormous success in crafting a mythology of campus rape by the Department of Education’s Office of Civil Rights, effectively manufacturing out of whole cloth a duty to create a subconstitutional criminal adjudication system to deal with rampant rape and sexual abuse that would make Somalia ashamed at the most prestigious colleges in the country, as well as the least, all of which has been so successfully promoted as “truth” that it’s now repeated as undisputed fact whenever possible, the narrative is now directed at addressing the cure to the disease.

We’re beyond the question, at least for now, as to whether a disease exists, so much so that even an advocacy group like FIRE has been reduced to making public statements directed toward not challenging the campus orthodoxy, and perhaps to appease the victims by conceding rights that are claimed but don’t exist. This acquiescence to the victim narrative may inexplicably be spreading.

Apart from this Times story, Room for Debate raises the question of whether the preponderance of evidence standard is appropriate, consisting of two profs who begin by acceptance of the premise that this system is required by law and factual necessity.

By federal mandate, U.S. colleges and universities — if they want to maintain access to federal funds — must adjudicate accusations of sexual violence using the “preponderance of the evidence” standard: If a defendant is deemed more than 50 percent likely to have committed the accused act, he or she is declared guilty.

While the burden of proof is, of course, an issue, it only arises well after the assumptive “federal mandate,” consisting of the “Dear Colleague” guidance threat, as well as sexual “violence[!]” that is taken for granted. Debating burdens of proof on a theoretical level is fine, but unhelpful in practice. Theoretically, unless one of the two Stanford students is found to not be credible, their conflicting testimony should result in a 50-50 tie, because preponderance is quantifiable whereas higher burdens are not. Of course, this fails to take into account confirmation bias, where the campus finders of fact are inclined to feel more generous toward one side even if they can’t say the other is lying.

The procedural details set forth in the New York Times Stanford story reflect a series of due process questions, largely unaddressed, that are glossed over. These include the fact that the initial adjudication resulted in a 3-2 vote that the male, a Stanford football player, had committed rape. Even under the reduced preponderance standard, there was a division, which resulted in a finding in favor of the accused because Stanford rules required at least 4 of the 5 finders of fact, profs, admins and students, to conclude guilt.

In a criminal court, guilt would require a unanimous verdict under the beyond a reasonable doubt standard. Even with the lower standard, a 4-1 verdict would have sufficed.

The accuser, however, felt that her rights had not been sufficiently vindicated because she didn’t prevail.

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.”

Had this been a criminal prosecution, the words “double jeopardy” might be mentioned. The woman’s complaint as to the first hearing was primarily that her “rapist” was a football player. In the hierarchy of rapists, white males at prestigious universities are particularly privileged and inherently suspect. But no one is more privileged to rape than a football player, both because he’s presumed to be entitled to women’s bodies and protected by schools who care far more about sports than women being raped. So she got a Mulligan, which again ended in a split decision that failed to sustain her claim.

And so she went public with the New York Times, which wrote a lengthy story about it to show how serious the problem of rampant sexual assault on campus is, and how vexing the procedures are for “victims” at present. It’s already far too favorable to the accused, and far too unavailing to rape victims. Certainly, any effort to undo the “federal mandate” would be horribly wrong.

Of course, the woman at Stanford could have gone to the police, to the courts, to complain of being raped, but that would diminish her agency to take her case where she pleased. And besides, the official channels lack the depth of empathy that a woman on campus needs.

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.

Plus, the legal system demands evidence, provides due process, is disinclined to substitute expressions of personal trauma for rational proof. It is, as the Stanford student explained, “every woman’s worst nightmare.”

*Update: A Stanford alumna claims to have refused a $60,000 settlement with the university for her sexual assault in Juneau, Alaska over a break by her Stanford boyfriend, which didn’t end in his expulsion as she demanded. The local prosecutor declined to bring charges:

“There’s absolutely nothing about the screening decision that suggests that Ms. Francis’ genuine feelings of victimization aren’t valid,” Scott said in a phone interview. “It’s simply that in order to convince 12 people beyond a reasonable doubt that a sexual assault occurred, I have to be able to prove every element (of the crime). And in this case, I can’t.”

Rather than allow her “silence” to be bought by Stanford, the woman has started a gofundme campaign to pay for her therapy.

Now, she’s trying to crowdsource funds for therapy costs after turning down money she claims Stanford University offered in exchange for her silence.

As of this writing, she’s gotten donations of $7,442 toward her $11,000 goal.

15 thoughts on ““Every Woman’s Worst Nightmare” (Update)

  1. B. McLeod

    Sure, a “nightmare” world where you can’t just accuse people and have them presumed guilty. I don’t know how the poor, courageous survivor-victims manage to soldier on.

    1. SHG Post author

      How dare you diminish the survivor’s lived experiences with your privileged patriarchal attitude toward evidence and due process.

  2. Dan Gray

    Another notable thing about that NYT article is that it didn’t name the accused football player anywhere (although I’m sure a bit of Googling would reveal more details). This is a welcome departure from prior “name and shame” practices for these types of articles.

  3. Erik H.

    This is absolutely ridiculous.

    Not to side track this, but the doubly frustrating thing is that folks are messing with a good system without thinking about it first.

    I will concede the possibility that the US system (which I love) may not be the ideal solution for every issue, but if you’re going to screw around the least you could do is to actually get some smart people together and decide on what to do BEFORE you do it.

    Say that Stanford had a meeting of the minds and decided “we will allow panel members to designate their votes as preponderance, or beyond a reasonable doubt; we’ll require unanimity for preponderance and 4/5 for reasonable doubt.” It would be odd but they could defend it. Here it seems like nobody ever paid any attention at ALL to the issue before they had a case, which is both idiotic and inexcusable.

  4. Matthew S Wideman

    Journalism is dead. The amount of assumptions made in the article are frightening. Having been an undergraduate, post graduate, and JD candidate, I have had some unique dealings with various “Student Judiciaries”. I found them to be poorly run and shills for the Dean of Students. I went to dumb people state schools so it maybe better at Stanford. I would never trust those three separate Student Judiciaries to manage a rape trial.

    1. SHG Post author

      I was on the Judicial Council at Cornell. I was certain I knew my ass from my elbow, and others were affected by my decisions. I was wrong.

  5. MonitorsMost

    Plenty of pleasant surprises here. First, a “Room for Debate” with opposing viewpoints. A nice change from “I think he should be hanged under a probable cause standard” vs “Oh yeah, well I think he should be hanged, drawn and quartered under a reasonable suspicion standard” vs “the standard should be preponderance, but there should be an irrebuttable presumption that the survivor is telling the truth.”

    Second, a judge actually applying the requirements of a TRO to a protection order petition. Amazing.

  6. Ross

    What sort of goofy logic would make someone think that an incident that took place in Alaska between two adults would somehow be the responsibility of Stanford to deal with?

  7. Lucas Beauchamp

    “Of course, this fails to take into account confirmation bias, where the campus finders of fact are inclined to feel more generous toward one side even if they can’t say the other is lying.”

    I don’t think you have really bought into the false dichotomy between rape and lying. That the complainant and the accused have completely different stories doesn’t mean that one is lying. More likely, both are confabulating like mad, and may the best confabulator win.

    Without some confirmatory evidence, no adjudicatory body, whether made up of art history professors or of seasoned criminal judges, courts, can tell what happened between two drunken twenty year olds.

    1. SHG Post author

      Whether that’s “more likely” is a bit baseless, but it gets us nowhere to assume that everyone is lying. Obviously, there’s no magic way for the finder of fact to tell who’s lying or telling the truth, but that’s a truism. It doesn’t add anything to addressing the burden of proof problem. They still hear two sides and have to reach a decision, and what’s why burden of proof matters.

      1. Lucas Beauchamp

        Saying that someone is either telling the truth or lying is the false dichotomy. Neither party need be lying. They are confabulating: unconsciously creating a narrative that fits their own preconceptions of themselves and that they believe to be the truth. Everyone does it, and it is especially easy when alcohol dulled perception and memory of the events.

        The one that has best convinced himself or herself of the self-created version of events, not the one who is actually telling the truth, then appears more credible. The burden of proof matters because finding a sexual assault by a higher standard than the preponderance of the evidence with nothing to go on but the parties’ confabulations is nearing impossible.

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