The many problems with the way Harvard University and other institutions nationwide are handling allegations of sexual assault aren’t new to Torch readers. Campus hearings often fail to provide the accused important procedural safeguards like an opportunity to present evidence on one’s behalf or cross-examine witnesses, and universities don’t have the authority to get guilty students off the street and into jail. In short, the status quo fails everybody. Amidst increasing media attention to these problems, Harvard Law School Professor Nancy Gertner—one of the 28 Harvard Law professors who signed a letter strongly objecting to the university’s new sexual harassment policy—adds her unique perspective as a former federal judge and a former criminal defense attorney in the Winter 2015 issue of The American Prospect magazine.
Gertner, a self-described “unrepentant feminist,” understands well the history leading up to the current pressure on universities to come down hard on students accused of sexual assault. As Gertner explains, rape used to be defined too narrowly to encompass many behaviors that are clearly illegal now, such as sex with someone who is incapacitated or unconscious. And the “chastity” of an alleged victim was once a critical question during the investigation. These and other issues have been addressed by changes in the law. But with victims’ advocates pushing for more law and policy changes, the rights of those accused of sexual misconduct are being disregarded, if not actively undermined. Gertner argues this is impeding or even undoing progress in the fight against sexual assault, as cases become less about obtaining reliable findings and more about obtaining a particular result.
In her article, Gertner condemns the new Harvard policy’s low “preponderance of the evidence” standard of proof and the dearth of procedural protections it affords accused students, calling it “the worst of both worlds, the lowest standard of proof, coupled with the least protective procedures.” Gertner also shares her analysis of the “single investigator” model newly adopted by Harvard, through which the university’s Title IX office alone serves as investigator, prosecutor, fact-finder, and appellate court. To illustrate how easily an innocent student could have his or her life derailed under such a system, Gertner tells the story of “Paul,” a college student who was found guilty in a criminal court despite the much more robust procedures afforded him there, thanks to the pressure weighing on the judge deciding the case. She first explains the background of the case:
[W]hile we can never know what went on between [the accuser and Paul], the facts—her actions, her words, the testimony of others—made her charges wholly unconvincing. A few examples: She went out of her way to invite him to her parents’ home a short time after the sex to stay for the weekend. 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 from decades of work on rape and my women’s rights advocacy, I understood that this young woman could be telling the truth—that her behavior in the days and weeks after the sex, and even her multiple accounts of what went on, could be explained by post-traumatic stress disorder, or simply embarrassment—her account seemed unlikely.
The evidence, though, became largely irrelevant, as the growing movement to secure justice for sexual assault victims overcame questions about whether Paul, specifically, had committed a crime.
The district attorney, though he fully understood the weaknesses of the case, felt compelled to bring the charges lest he face political repercussions, for being yet another politician ignoring a woman’s pain. Even the grand jury ignored their serious doubts about the case and indicted Paul. As I later learned from one of its members, they felt comfortable indicting Paul because I was rumored to be representing him and they assumed he would be acquitted. And the judge—with life tenure—likewise felt the pressure. The judge was critical; my partner decided to waive the jury when a program on date rape was aired on the eve of the trial. 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. “Judge acquits rapist,” the headlines would scream. But if he convicted Paul, no one would notice.
Gertner, representing Paul on appeal, ultimately earned a reversal of the guilty finding. But if a prosecutor, grand jury, and judge can all be compelled by social pressure to work toward Paul’s guilty finding, even with all the safeguards in that system, what hope is there for a university Title IX coordinator, who is tasked with protecting an institution from accusations that it let a rapist off the hook?
Gertner describes the disturbing reactions to her defense of Paul. She was picketed by a women’s rights group, she says, who dismissed her explanation that she truly believed Paul to be innocent as “irrelevant.” Even after his acquittal, the ramifications for Paul were severe:
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.
College students who are found guilty of sexual assault in campus hearings, even if they are not prosecuted in criminal court, are likely to suffer similarly.
Recognizing the dire need for policies that better protect the rights of accused students, and the federal government’s recent actions undermining that objective, George Will wrote for The Washington Post last week to present the issue as one that should be addressed by President Obama’s attorney general nominee, Loretta Lynch. Will wrote:
Next year is the 800th anniversary of Magna Carta, which began the slow, serpentine progress to our modern panoply of rights, including those of those accused of serious crimes. Today, however, regarding sexual misconduct on campuses, the Education Department’s Office for Civil Rights uses the threat of withdrawing federal funding to coerce colleges and universities into jettisoning crucial defendants’ protections when adjudicating, in improvised tribunals, accusations of sexual assault. Presumption of innocence? The new presumption is that accusations are valid until disproved. The right to confront one’s accuser? No, it would be traumatizing to the “survivor” (note the prejudgment). Proof beyond a reasonable doubt? Now a mere “preponderance of the evidence” will suffice. Are you comfortable with this traducing of due process?
As Gertner argues, and as FIRE has said before, colleges can and must take steps to address the problem of sexual assault without employing kangaroo courts. Visit The American Prospect’s website to read the rest of Gertner’s insightful and powerful piece.