Can we reconcile the belated attention to rape on campus with due process?

by Nancy Gertner

An open letter, published in the Boston Globe on October 15, 2014, was signed by 28 Harvard law professors voicing strong objections to the school’s new one-sided sexual misconduct policies. Among other things the professors said this:

“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.”

Among the signers of the letter are esteemed criminal law expert Alan Dershowitz, Obama mentor Charles Ogletree,  Professor Elizabeth Bartholet who directs Harvard’s Child Advocacy Program, and former federal judge Nancy Gertner.

A week earlier, Dershowitz told Time magazine “Harvard’s policy was written by people who think sexual assault is so heinous a crime that even innocence is not a defense.”

Professor Elizabeth Bartholet said that Harvard’s new policy comes “very very close” to California’s new “yes means yes” law, requiring affirmative consent for sex on campus, and that the new policy is unfair to the accused and “degrading and demeaning for women” because it assumes women need special protection.

Professor Janet Halley said “When you drop the reasonable person requirement, then you’re saying, ‘No, it’s just if the person wakes up the next morning and says [the contact] was unwelcome, we’ll entertain a complaint about that.’ And that squanders the moral authority of sexual harassment law.”

Anne Neal, president of the American Council of Trustees and Alumni, said: “I think these professors are properly saying that we cannot allow our institutions to be taken down an Orwellian path where the Constitution takes a back seat to other considerations.”

Elizabeth Bartholet, an expert on civil rights and family law as well as a feminist, also stated: “I believe that history will demonstrate the federal government’s position to be wrong, that our society will look back on this time as a moment of madness.”

Retired Federal Judge Nancy Gertner

Retired Federal Judge Nancy Gertner

Nancy Gertner (born 1946) is a former United States federal judge for the United States District Court for the District of Massachusetts. Gertner was notable for being a supporter of feminist ideals, keeping files on lawyers and judges she felt to be sexist. In 1993, Gertner was nominated to the US District Court by President Clinton. After announcing her retirement from the bench in 2011, Gertner was appointed a Professor of Practice at Harvard Law School, and is the author of In Defense of Women: Memoirs of an Unrepentant Advocate (2011).

Summary of Gertner’s 5,000 word article in The American Prospect

Campus sexual assaults are horrifying, made all the worse because the settings are bucolic and presumed safe – leafy campuses, ivy-walled universities. Assaults are reported in dormitories, off-campus apartments, and fraternity houses, in elite and non-elite institutions, from one end of the country to the other.

Title IX was supposed to promote equal opportunity in any educational program receiving federal money. But until recently, Title IX was dormant and largely ignored. The enforcer, the federal government, had been a paper tiger. Universities were not reporting, much less dealing with, either sexual harassment or explicit sexual violence.

In 2011, the government’s approach changed dramatically: A “Dear Colleague” letter on sexual violence was sent to colleges and universities from the Department of Education’s Office for Civil Rights (OCR), pointedly reminding them of their obligations under Title IX and presaging aggressive enforcement. Even the department’s language changed, no longer referring antiseptically to a complainant and an accused but rather to victims or survivors, and perpetrators.

To feminists – I among them – it was about time that pressure was brought to bear on educational institutions… This kind of sustained attention was precisely what was needed to come to grips with the problem. Nothing less would have done the trick. Indeed, nothing had worked before. It was as if women, especially young women, had to speak especially loudly and especially often to finally be heard – a not unfamiliar concept.

The problem was that the issues surrounding campus sexual assault were more complicated than the public debate reflected. How were universities and colleges to deal with the range of campus sexual encounters – a continuum from violent rape, to sex fueled by alcohol impairing all involved, to the expectations about women and men in the so-called “hookup culture,” to consensual sex followed by second thoughts… There are plenty of bright lines such as forcible rape – but also blurry ones. Genuine ambivalence and ambiguous signals seem almost inherent in courtship and sexuality, especially in first encounters. Where should the Title IX violation line be? What was a reasonable adjudication process? What was the role of the criminal justice system in cases in which university conduct codes overlapped with possible prosecutions?

Further, how were colleges and universities to balance the interests of the complainant with those of the accused? Just as the complainants must be treated with dignity and their rights to a fair resolution of their charges be respected, so too must those accused of sexual misconduct.

I am an unrepentant feminist, a longtime litigator on behalf of women’s rights, as my memoir, In Defense of Women, reflects. Rape, I insisted, is a crime to which women – including me – feel uniquely vulnerable, no matter who they are, no matter what their class, their race, their status. No one should have been surprised that I supported stronger enforcement of Title IX, more training for investigators, more services for complainants, systematic assessments of the state of enforcement on college campuses, and other tough remedies. What surprised many, however, was that I was one of 28 Harvard professors who signed a letter opposing Harvard University’s new sexual harassment and sexual assault policies, policies introduced ostensibly in response to pressures from the Department of Education.

When I was a lawyer, I understood how inadequate the law was in addressing sexual violence at all. I worked for changes to the retrograde definition of rape in statutes around the country and their disrespectful treatment of rape victims… I lobbied for rape shield laws that limited the defense counsel’s cross-examination of a woman about her prior sexual experiences…

But I was also a criminal defense lawyer. I understood more than many how unfair the criminal process could be, how critical the enforcement of a defendant’s rights were to the integrity and, even more, to the reliability of the criminal justice system. I understood what it meant to have a defendant’s liberty hanging in the balance, how long terms of imprisonment could wreak havoc on the lives of defendants and their families. I appreciated the stigma of the very accusation, which persists – especially today on the Internet – even if the accused is exonerated.

I reconciled the pressures pushing me in opposite directions by choosing not to represent men accused of rape…– except for one case.

A young man, a freshman at a local college at the time the incident happened and a friend of a former roommate of mine, was referred to me. (In my memoir, I call him “Paul”.) He’d had sex with a classmate, his very first sexual encounter; he believed his classmate had consented. And while we can never know what went on between them, the facts – her actions, her words, the testimony of others – made her charges wholly unconvincing… Nine months after their sexual encounter, she claimed to have been raped and mentioned his name following the breakup of a different relationship and her hospitalization for depression. She accused Paul during a conversation with her father, but accused another male student while speaking to a classmate. Witnesses reported nothing out of the ordinary that evening, no evidence of drinking, no impairment, not even anxiety about what had occurred. Her account itself was improbable, internally inconsistent, and contradicted by the evidence and the testimony of her own classmates.

While I believed that Paul had been wrongly accused, and would be exonerated, true to my practice I declined to represent him. I asked one of my law partners to step in, and then watched with horror as the prosecution unfolded.

The atmosphere surrounding date rape had changed more dramatically than I had appreciated, at least in Massachusetts. The district attorney, though he fully understood the weaknesses of the case, felt compelled to bring the charges lest he face political repercussions. Even the grand jury ignored their serious doubts about the case and indicted Paul – they assumed he would be acquitted. And the judge likewise felt the pressure… While the judge expressed his skepticism throughout the trial – every single comment of his pointed to reasonable doubt about Paul’s guilt – his verdict was “guilty”. He did not say so explicitly, but the message seemed clear. If he acquitted Paul, he would be pilloried in the press… But if he convicted Paul, no one would notice.

I took over the appeal. The brief my firm filed was what I described as a feminist brief: Just because the legal system has moved away from the view that all rape accusations are contrived does not mean it must move to the view that none are. This conviction was not just technically imperfect, I argued, it was a true injustice. I was successful. The Massachusetts Supreme Judicial Court reversed Paul’s conviction on a procedural error, the trial court’s evidentiary rulings.

After decades of feminist advocacy, I was picketed by a women’s rights group when I spoke on a panel following the reversal of Paul’s case… When I explained…the fact that I believed he was innocent, a demonstrator yelled, “That is irrelevant!” The experience was chilling… Though the charges against Paul were dropped, he was expelled from the college he had been attending; he struggled to reapply years later and finally get his degree. Worse yet, he continues to suffer from the stigma of the accusation to this day, many, many decades later.

In the summer of 2014, Harvard issued its new Sexual Harassment Policy and Procedures… In some respects, they go beyond what the 2011 “Dear Colleague” letter spelled out.

OCR has clearly mandated that universities and colleges evaluate accusations of rape under a preponderance of the evidence standard. A preponderance of the evidence is in fact the lowest standard of proof that the legal system has to offer. In effect, if the evidence leans in favor of the victim to any degree, say 50.01 percent, that is sufficient. OCR’s rationale was that this was the standard for suits alleging civil rights violations, like sexual harassment. True enough, except for the fact that civil trials at which this standard is implemented follow months if not years of discovery – where each side finds out about the other’s case, knows the evidence and the accusations, and has lawyers to ask the right questions. Not so with the new Harvard regime, which has no lawyers, no meaningful sharing of information, no hearings. It is the worst of both worlds, the lowest standard of proof, coupled with the least protective procedures.

The new standard of proof, coupled with the media pressure, effectively creates a presumption in favor of the woman complainant. If you find against her, you will see yourself on 60 Minutes or in an OCR investigation where your funding is at risk. If you find for her, no one is likely to complain.

But Harvard’s new policy goes further than OCR’s mandated preponderance standard… The Title IX officer has virtually unreviewable power from the beginning of the proceeding to its end. The officer deals directly with the complaining witness, advises her, determines if the case should be investigated, proceeds to an informal or to a formal resolution… the Title IX officer appoints and trains the “Investigative Team”… There is an appeal, but it is to that same Title IX officer and only on narrow grounds. While the final sanction is determined by the individual school, the fact-findings on which that sanction is based…cannot be questioned.

As the letter of the 28 faculty members noted, this procedure does not remotely resemble any fair decision-making process with which any of us were familiar: All of the functions of the sexual assault disciplinary proceeding – investigation, prosecution, fact-finding, and appellate review – are in one office, we wrote, and that office is a Title IX compliance office, hardly an impartial entity. This is, after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.

Nothing in the OCR’s 2011 “Dear Colleague” letter called for a proceeding remotely like this. Indeed, the letter underscored the need for an “adequate, reliable and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence,” and to have access to any information that would be used at the “hearing”.

The new Harvard standards governing sexual conduct between students when both are impaired or incapacitated are “starkly one sided”. “Impairment” and “incapacitation” are not the same, under the law. Sex with an individual who is incapacitated or unconscious, who does not understand what is happening…is rape by any modern definition. But “impairment” because of alcohol is surely a different matter. Worse yet, the policy is not equally applied: The accused’s “impairment” based on drugs or alcohol is not at all relevant; it is not an argument for his “diminished capacity” as it might be under the criminal law of some jurisdictions. Instead, the policy treats him as if he were fully sober, fully responsible for his acts. The complainant’s “impairment” is another matter. If both parties are drunk, but not unconscious, not incapacitated, and only impaired by their drinking, and they have sex, only he is responsible under Harvard’s policy.

In fact, there is no reason to believe that the students themselves define what Professor Janet Halley of Harvard Law School calls “drunk/drunk” cases as rape at all. While 10% of female MIT undergraduates in a recent study identified themselves as having “been sexually assaulted,” 44% reported having sex while being incapacitated by drugs or alcohol. Plainly, some of the students did not regard sex under those circumstances as sexual assault.

Sexual assault advocates will argue that this is as it should be. It will be traumatic for the complainant to confront her accuser, even if only through her representatives rather than directly. It will be traumatic for the complainant to be asked to repeat her story over again. A speedy resolution is critical to her recovery, they would suggest. These arguments, however, assume the outcome – that the complainant’s account is true – without giving the accused an opportunity to meaningfully test it. However flawed, the way we test narratives of misconduct – on whichever side – is by questioning the witness, by holding hearings, by sharing the evidence that has been gathered, by giving everyone access to lawyers, by assuring a neutral fact-finder. While we know from the Innocence Project that even these “tests” can produce wrongful convictions, they are at least more likely to produce reliable results than the opposite – a one-sided, administrative proceeding, with a single investigator, judge, jury, and appeals court.

There is no question that we have to confront sexual misconduct on campus and elsewhere as aggressively and comprehensively as we can. There is no question that we have to lift the protection offered the star athlete, confront the administrators more concerned with the man’s future than with a woman’s trauma, challenge the atmosphere of impunity at fraternity houses and social clubs… It isn’t necessary to jettison every modicum of a fair process to redress decades-long inattention to these issues. It never is. As I argued in Paul’s case, we should not substitute a regime in which women are treated without dignity for one in which those they are accusing are similarly demeaned.


by Robert Riversong: may be reproduced only with attribution for non-commercial purposes

See also:

When Progressive Social Change Becomes Regressive Ideology: From Women’s Liberation to Cultural Misandry – ReHonoring Masculinity & Achieving Gender Justice

Misandric Feminism vs. Progressive Gender Equality (excerpt of above)

Male Victims of Sexual Violence (also an excerpt of the first essay)

Yellow Journalism and the Meme of “Rape Culture” – Rolling Stone and U-VA Gang Rape

Dear President Sullivan – letter from 17 attorneys involved with campus sexual assault claims throughout America, detailing specific reasons why they “are concerned that the University’s Proposed Student Sexual Misconduct Policy is both vastly over inclusive in attempting to define prohibited conduct and ill equipped to guarantee a procedure for resolving allegations that is fair and impartial”.

It’s Time for a U-VA Apology – Op-Ed from a 25-year U-VA professor and his U-VA junior son

Journalistic Fabulism and Ideological Agendas – the Sabrina Rubin Erdely Story

New Puritanism – New Paternalism – The “Rape Culture” Narrative Demeans Women, Demonizes Men, and Turns Universities into Witch Hunt Tribunals

Dear Senators – letter from 20 attorneys critical of the Campus Accountability and Safety Act (S. 2692)

The Pendulum Reverses – Again – The Betrayal of Liberty on America’s Campuses & Men Strike Back against Title IX Tribunals

HELP for DOE Regulatory Excess – A Senate Task Force Report Recommends Scaling Back the Mountain of Regulations Strangling Higher Education Institutions

Men are Twice-Raped – Domestically and Globally, Men and Boys are Victims of Sexual Violence at rates Equal to those of Women, and are Assumed to be Villains whenever a Woman Accuses

Two Sexual Assault Studies Contradict Stereotypes

All Sex is Rape – All Men are Rapists : Patriarchy = Rape Culture

A Model of Campus Gender-Based Harassment – The Columbia University “Mattress” Story

A Case Study in “Politically-Correct” Reactionary Response – The Duke Lacrosse Team Stripper Rape Hoax

When the Megaphone becomes the Gavel – Two legal experts on sex discrimination law and procedure argue that the current Title IX mandates for America’s colleges and universities are legally unsupportable and both practically and ethically indefensible.

Two Over-Privileged Millennials Engage in Sex and Get F-cked – The Stanford “Model” Student and her Silicon Valley Mentor




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