Harvard Law Professors Join the Anti-Rape Movement Backlash

On October 15th, 28 current and retired Harvard Law professors penned an op-ed calling upon the university to abandon its new sexual harassment policy on the grounds that it violates the due process rights of the accused. According to emeritus professor Alan M. Dershowitz, the new policy is “political correctness run amok.”

In this post, I briefly summarize Harvard’s new policy and analyze the critiques of the Harvard-28. Instead of thoughtful, reasoned, and well-supported arguments befitting a group of elite professors, their critiques are vague, fail to evidence bias against respondents, and do not reflect a contextual understanding of the campus rape crisis. Their misguided critiques appear to be more about protecting Harvard Law than protecting students.

The Harvard Policy

Back in July, Harvard unveiled its new sexual harassment policy. After two years of deliberation, the school created a central office with a team of independent investigators and instituted the “preponderance of evidence” (more likely than not) standard as mandated by the Department of Education in 2011. Harvard also replaced criminal law definitions of sexual violence with a civil rights standard of proving that the conduct was “offensive” and “unwelcome.” Student activists criticized the new policy for leaving out affirmative consent (that has since been instituted in California and New York), making Harvard the only Ivy League school without this standard. Harvard has a history of fighting real reform on campus rape, and while their new policy is an improvement over persistent and willful non-compliance with federal law, it is certainly not as cutting edge as other schools.

The Harvard-28 Critique

The Harvard-28 cite five major concerns with the new sexual harassment policy, each of which I address in turn.

1) “The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Harvard’s policy does allow equal opportunity for both parties to present evidence to investigators, and to review and respond to the other party’s account of events, but the Harvard-28 would like this to happen face-to-face. The problem with this is that false rape reports are rare, which means the Harvard-28 want to allow rapists to interrogate the person they raped. Presently, only one-in-ten rape survivors report the crime, and if they know they will face an interrogation by their rapist in an “adversary hearing,” even fewer will come forward to be re-traumatized. And since a small number of serial rapists perpetrate over 90% of sexual assaults/rapes on campus, and six-in-ten rapists rape again, any campus policy that discourages reporting makes the campus less safe.

Additionally, the Harvard-28 do not make a convincing case that the absence of an adversary hearing favors complainants. Both parties have access to written accounts from the other party, and both have the ability to respond, so what facts would a hearing uncover that could not be discovered through an investigation run by professionals, and how does this bias one party over the other?

2) “The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.”

Campus sanctions for sexual assault/rape are similar to sanctions for plagiarism and other violations of the student handbook, and like other violations, the entire adjudication process is typically managed within one department. To treat this like a criminal proceeding would be time and cost prohibitive, and would net less effective results when it comes to keeping students safe (see below).

The second part of this critique, that the Title IX office cannot be “structurally impartial,” is flawed logic. Title IX “prohibits discrimination on the basis of sex in schools,” so the argument here is that the office tasked with enforcing sex discrimination laws at Harvard will be biased in favor of those who bring claims. Not only does this idea run counter to a reality where fewer than 2% of campus rapists face real sanctions, and where half of rape survivors report institutional betrayal, this flimsy logic could be applied to dismiss the impartiality of any judge or administrative body with the responsibility of upholding a specific body of law. This is akin to saying OSHA cannot impartially process workplace safety claims or the EEOC cannot impartially adjudicate discrimination claims because they are tasked with upholding these specific bodies of laws.

Once again, the Harvard-28 do not make their case that housing adjudication in one office, or housing it specifically in the Title IX office, constitute bias against respondents.

3) “The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.”

Like the first two critiques, this third critique approaches the policy from a criminal justice lens instead of what it is – a campus administrative process. Of the small fraction of cases that are reported, about half of the respondents are found responsible for sexual assault/rape, and of those, fewer than one-in-three are expelled. Many rapists are able to simply transfer to another school because their transcripts do not list the crime. In other words, rapists at Harvard and elsewhere get nothing like a criminal sentence, so it makes no sense to apply criminal standards or procedures.

It especially makes no sense to use criminal standards when the legal system is so woefully incapable of holding rapists accountable. Only 3% of rapists ever spend a day in jail. Campuses have a legal obligation under Title IX to provide an equitable learning environment – one where male, female, and transgender students have the same shot at getting an education without having their life thrown off the rails by sexual violence. If schools used current criminal processes, they would expel only one-third of 1% of campus rapists (3% of the 12% of rapes that are reported).

Most colleges do not allow attorneys at rape adjudications because it is not a criminal proceeding. Harvard does, but they do not provide free legal counsel. Once again, it is unclear how this favors complainants. If attorneys are more effective than advocates or students in campus rape adjudications, as the Harvard-28 seem to suggest, then free legal counsel would benefit both complainants and respondents. And since the Harvard-28 are suddenly so concerned about this issue, why not set up a clinic at Harvard Law to offer free legal counsel, and why not extend it to students charged with plagiarism and other violations of the student handbook?

4)  “Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.”

Under Title IX, sexual harassment is defined as “unwanted and unwelcome behavior of a sexual nature.”

Under Title VII, “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”

Harvard’s definition of sexual harassment is “unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, graphic, or physical conduct of a sexual nature, when: (1) submission to or rejection of such conduct is made either explicitly or implicitly a condition of an individual’s employment or academic standing or is used as the basis for employment decisions or for academic evaluation, grades, or advancement (quid pro quo); or (2) such conduct is sufficiently severe, persistent, or pervasive that it interferes with or limits a person’s ability to participate in or benefit from the University’s education or work programs or activities (hostile environment).”

The comparison above reveals three areas where Harvard goes beyond federal law, (which they and every other school are entitled to do). First, nonverbal conduct of a sexual nature, such as grabbing one’s crotch, is considered sexual harassment. Second, graphic conduct of a sexual nature, such as sending unwanted sexually explicit photos, is also considered sexual harassment. Thirdly, the Harvard policy includes language about academic standing and academic effects in its definition of sexual harassment as befits an educational institution. It ensures that faculty members are held accountable for sexually harassing employees and students. The Harvard-28 is not clear about how the school’s new policy “goes significantly beyond” Title IX and Title VII, but the differences analyzed here are minor and consistent with an academic setting.

5) “Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”

The Harvard policy defines incapacity as follows: “a person is considered incapable of giving consent if he/she is asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs (signs of being incapacitated include, but are not limited to, difficulty walking, inability to speak in a coherent manner, vomiting or the presence of vomit, etc.).” The Harvard-28 do not clarify how this rule is “starkly one-sided,” but we can assume they mean that this clause is biased because it only applies to complainants.

Of course this clause only applies to complainants because intoxication is never an excuse for committing a crime. A useful analogy here is a drunk driver who hits someone. We do not give the driver a free pass because he was drunk, or say that it’s a “complicated” situation because his judgment was impaired. The same applies to drunk students who initiate sexual activity with a person who is incapacitated and thus not able to consent. The Harvard-28 signed their name to a document that implies that a serious crime should be excused by “extreme use and abuse of alcohol and drugs”? Do they extend this logic to other crimes as well?

Hyperbole

The Harvard-28 op-ed is vague, does not make its case of bias against respondents, and does not reflect a contextual understanding of the campus rape crisis. It also plays upon public ignorance by stating that, “Harvard acted under pressure imposed by the federal government, which has threatened to withhold funds for universities.” This is true on paper, but as the Harvard-28 surely knows, the Department of Education “has never once punished a university for sexual assault-related violations of Title IX in the entire history of the agency.” Instead, they work with institutions for years and years to gain compliance.

The claim that Harvard’s policy will “do more harm than good” is hyperbolic, as is the proposed remedy of entirely throwing out the policy. So what is really at stake here? Maybe Harvard Law wants to keep sexual harassment and rape adjudications in-house so they can more effectively manage competing economic and reputational pressures. Regardless of underlying motives, the Harvard-28 have join the backlash against the new campus anti-rape movement instead of being productive critics and contributors. I expect more from faculty members.