KC Johnson on Harvard’s ‘Disturbingly Opaque’ New Sexual Assault Procedures

July 29, 2014

Yesterday, Brooklyn College Professor KC Johnson shone a spotlight on Harvard University’s new procedures for investigating and adjudicating allegations of campus sexual assault—and there is a lot to be concerned about. The problems start at its adoption of the “preponderance of the evidence” standard but go much deeper, potentially leaving accused students without key information and opportunities to defend themselves against their charges.

As Johnson writes in Minding the Campus, complaints will be handled by an investigator and a “school designee”—though as he notes, the role of the latter is unclear. The accused student has one week to provide evidence in his defense “without being informed of the evidence that the investigator/designee duo gathered in their [week-long] investigation.” After providing a written statement (which Harvard helpfully suggests “could affect [a] criminal case in which they are or may become involved”), the accused student is interviewed by the investigator and designee. This interview takes place, unsurprisingly, without the assistance of an attorney.

Finally, during the interview, the accused gets to see the evidence against him or her—but only in redacted form. And if he or she wants to consult an attorney, they’d better think twice; a student is seemingly not allowed to share the evidence with anyone outside of the process. After the investigator and designee provide a written assessment of the accused student’s guilt or innocence, the accused and accuser may respond to those findings within a week. Johnson notes that it’s not clear, however, whether the accused would be allowed to present additional exculpatory evidence to refute evidence that he or she might have been unaware of until this point.

Emphasizing what is missing from the process, Johnson writes:

Note what does not appear anywhere in the above description. At no point does the accused student—or even his “advisor”—have a right to cross-examine his accuser, or to receive a full transcript of the accuser’s interview. The accused student doesn’t have the right to cross-examine any witness. (Indeed, the accused student doesn’t even have a right to know the identities of all witnesses who gave the investigator/designee duo evidence against him, much less a full transcript of what they said.) Neither the policy nor Harvard’s statement announcing the policy explains why the university has eliminated cross-examination—although, as seen with Michele Dauber’s efforts at Stanford, it’s reasonable to speculate that the university concluded that cross-examination makes exonerations more likely.

Moreover, since Harvard provides only a “redacted version” of the documentary evidence to the accused student, it’s possible that the student can be branded a rapist based on information that he never had a chance to see, much less rebut. Reflecting their overall vagueness, the guidelines do not list the criteria under which the investigator/designee duo can redact evidence, nor do they spell out the grounds for appealing such a decision.

In other words, the investigator and designee apparently have broad authority to relay or hide information that may be critical to an accused student’s defense. Key information will be shared late in the game, if ever. And after all this, the student can be found guilty of sexual assault if the investigator and designee find that it is simply more likely than not that the student committed a violation.

Read more about the new policy at Minding the Campus.

Schools:  Harvard University