At Stanford, according to the “alternative misconduct review process” guidelines offered on the university’s website, a student accused of sexual misconduct doesn’t have the right to cross-examine his accuser–or any other witnesses in his case. He cannot offer exculpatory evidence on his behalf, but can only “request” that the university’s assigned “Investigator contact individuals who are witnesses to an event.” (Even then, the Investigator “is not obligated to meet with every individual proffered by the responding student.”) If acquitted by the campus judicial process, his accuser can appeal the acquittal. Even if the acquittal is upheld on appeal, he can still face what Stanford euphemistically terms “non-disciplinary actions,” including “removal from a position of trust or removing a student from housing.”
And, as a result of the recent OCR Title IX missive, he’s lost what was virtually his only due-process protection–that a conviction will result only from “beyond a reasonable doubt.” Instead, he now will face expulsion if found guilty according to a “preponderance of the evidence” (50.1 percent) standard.
What right does the accused student possess? “To be offered reasonable protection from . . . malicious prosecution.” Thanks to FIRE, we now know that even this meager right is meaningless.
FIRE has obtained some of the material that the university uses to train the student jurors (dubbed “reviewers”) who decide the fate of accused students at Stanford. The FIRE website provides excerpts from one such item, Why Does He Do That: Inside the Minds of Angry and Controlling Men. The Library Journal review notes that the book’s author, Lundy Bancroft, has wildly claimed that “at least one out of three American women will be a victim of violence by a husband or boyfriend at some point in her life.”
This volume seems like a particularly unusual selection for training students in a judicial process, since Bancroft’s support for even the token of due process is lacking. For instance, while he concedes that “an abuser or accused abuser has the right to legal representation,” he believes that representation should be circumscribed. Some defense attorneys, he asserts, “are in a class by themselves,” to such an extent that they occupy a “role of co-abuser.” Among the actions that can make an attorney “a co-abuser,” according to Bancroft? To “treat every allegation made by the man as gospel truth.” But what if the man is innocent? Does Stanford accept Bancroft’s assertion that an attorney’s accepting an innocent man’s innocence makes the lawyer a “co-abuser”? If not, why does the university provide his book to student reviewers?
The book also informs student jurors that they should be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence. The great majority of allegations of abuse—though not all—are substantially accurate.” (Bancroft provides no citation for this assertion.) So while Stanford suggests that its students are “reasonably” protected against “malicious” prosecution, it has endorsed a volume that suggests accusers almost never lie, and requires the accused student to be adjudicated through a process that’s wildly skewed toward the accuser.
In other words: Stanford’s entire process is malicious. The only way that the university could protect a student from “malicious prosecution” would be to invalidate its entire judicial structure.