As colleges and universities continue to struggle to adequately handle allegations of sexual assault on campus, the media is providing an increasing number of attention-grabbing headlines, and many are demanding schools take immediate and harsh action against alleged attackers. Writing for Harvard Law Review this month, Harvard Law School professor Janet Halley asks that readers pause for a moment to appreciate some of the complicated fact patterns, moral dilemmas, and practical questions that demonstrate that sexual misconduct policies and procedures must be guided by careful thought—not just one-sided advocacy.
Halley has written before, both on her own and with her peers, about the ways in which Harvard University’s policies disregard principles of due process and deny students accused of sexual assault a fair hearing. In her commentary for Harvard Law Review, she writes more broadly about the problems facing institutions nationwide. Those advocating for policies that make it easier to punish accused students have significantly influenced college policies, state and federal legislation, and federal guidance on sexual assault. Now it is time, Halley argues, for advocates to acknowledge that some allegations of sexual assault cannot fairly result in punishment of the accused, and that the problems posed by the class of “hard cases” she describes are not a rare occurrence or a dismissible concern.
The circumstances surrounding sexual misconduct cases range from the predictable to the bizarre. For example, there are innumerable cases of students intentionally becoming intoxicated and enthusiastically engaging in sex, with varying degrees of negative emotions or amnesia in the days or years following. (Amanda Hess, too, took a thorough look at the cases in which either or both sexual partners could theoretically be the rapist, in an article for Slate yesterday.) But Halley has seen much stranger, as she shares with readers:
I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.
This is not a common occurrence, one would hope, but it shows just how far a nervous university administration will go to be seen as making every effort to cure a “hostile environment.”
Halley contends that these efforts are disproportionately affecting minorities—a concern shared by others, too. Particularly when so many cases rest on fact-finders simply deciding which party they find more trustworthy, an investigator’s or a panel’s biases (even if unconscious) can determine the outcome of a case.
She also examines victims’ advocates’ assertion that an accuser’s behavior after an alleged assault cannot be considered as evidence that an assault didn’t occur, as recently argued in media coverage of Columbia University student Emma Sulkowicz’s alleged rape. Halley writes:
The take-away lesson [included in Harvard’s training materials] is that a victim of sexual assault may experience trauma, which in turn causes neurological changes, which in turn can result in “tonic immobility.” Tonic immobility, in turn, can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and “flat affect.” Her story “may come out fragmented or ‘sketchy,’” and she can be “[m]isinterpreted as being cavalier about [the event] or lying.” These problems, in turn, can cause police and sexual harassment investigators to dismiss serious claims, tragically because of symptoms of the trauma itself.
So far, that is the only training provided to Harvard personnel handling sexual harassment claims directed to the social and psychological dynamics surrounding sexual assault. It is 100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent. Without disputing the importance of the insights included in this section of the training, one can ask: precisely what do they prove? Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted.
This is on par with Stanford University’s past direction to student jurors that “acting persuasive and logical” is a sign of guilt.
Whatever the concern being addressed, though, it is imperative that advocates for due process not be attacked as indifferent to abuse or misogynistic merely for demanding a fair system or critically examining evidence—or lack thereof. Unfortunately, as Halley notes, this is often what happens.
Halley’s piece is well worth reading in full on Harvard Law Review’s website.