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February 17 2015

The (New) Big Chill: More on Erosion of Rights of the Accused from a Harvard Law Prof

Charlotte Allen

Harvard Law School to the rape-hysteria rescue!

Or, more specifically, Harvard Law School professor Janet Halley, who’s been a leading protestor against the university’s new sexual harassment policy, which—like that of all too many colleges and universities these days—not only tilts the on-campus legal procedure against the accused but defines as harassment a range of classroom and out-of-classroom speech, from jokes to mere generalized references to sex, which means that anyone can be a victim who feels like a victim.

Halley was one of 28 Harvard law professors who signed a manifesto published in the Boston Globe on October 15 asking the university to rethink its policy (it hasn’t). Soon afterwards she wrote this memo:

Chill is already happening.  Teachers at Harvard, alarmed by the policy’s expansive scope, are jettisoning teaching tools that make any reference to human sexuality….. The procedures, too, risk making victims of the unharmed and villains of the innocent. They deprive accused students of due process by placing the entire decision-making process in the hands of a single university officer, who has the authority to charge, investigate, adjudicate and hear appeals, all in a single case….The new policy also deprives accused students of due process by according complainants at least 14 procedural advantages that are withheld from the accused.

Now, Halley has a powerful new article in the Harvard Law Review Forum. .

Her article, titled “Trading the Megaphone for the Gavel in Title IX Enforcement,” argues that it’s perfectly fine for feminists to advocate solely for alleged victims in campus sexual-harassment cases without paying attention to any rights of the accused. One-sidedness is the whole point of any advocacy, she points out. But when feminist advocates became part of government—as they did when the Obama administration’s Education Department started staffing its Office of Civil Rights (OCR), which enforces Title IX, the federal banning sex discrimination on campuses—the feminists began forcing their advocacy goals onto colleges and universities that must comply with Title IX. They’re the ones who issued the regulations that forced Harvard and other universities to set up draconian and one-side procedures for judging sex-assault cases.

Halley goes on to catalogue a range of difficult-to-prove-anything cases: rape claims where both parties have voluntarily gotten so drunk that they can’t remember the events very well, or romantic breakups where the woman accuses her former partner of repeated abuse, for example. In those cases, the new Title IX-mandated policies would almost invariably work injustice on the accused, who would be practically unable to defend himself. She writes:

In a related development, OCR increasingly implies that the only adequate “interim measure” that can protect a complainant in the Title IX process is the exclusion of the accused person from campus pending resolution of the complaint. To be sure, in these cases the accused may eventually be found to be responsible for violations, sometimes very serious ones. But advocates and the OCR are arguing that all complainants are trauma victims subject to continuing trauma if the persons they accuse continue in school: merely “seeing” the harasser is deemed traumatic.

Halley continues:

Denial and a taboo on blaming the victim have been the favored strategies among advocates: will their allure carry over into governance? My own hope is that governance feminists designing and running a new campus sexual assault establishment can acknowledge the full weight of the responsibility they are taking on.

Paradoxically, Halley herself specializes in teaching gender and sex-related issues at the Harvard Law School. As a professor who knows whereof she writes, she probably has serious doubts about whether her fellow feminists in charge of enforcing Title IX will pay attention to her warnings. So far, they haven’t.

 



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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