During the Christmas holidays, when the story was likely to get less play than it might have at another time of the year, Harvard University’s Law School and the U.S. Department of Education, Office for Civil Rights, agreed to a resolution to an investigation of the law school’s handling of sexual harassment complaints. The DOE investigation had begun in 2010.
Wendy Murphy, the professor of sexual violence at New England University/Boston, whose complaint triggered the investigation, proclaimed the December 30 resolution of the investigation a “win [that will] ripple across campuses.” It is a landmark case, and I want to belatedly take note on the blog.
Murphy claimed in her original complaint that Harvard Law violated Title IX stipulations on how campus sexual harassment complaints must be addressed. One of Murphy’s complaints was that the Law school required too much proof of culpability. The Harvard Crimson explained during the course of the investigation Murphy triggered:
Murphy said that another discrepancy [between Title IX rules and the Law School’s handling of accusations] was the Law School’s requirement for students who alleged they were victims of sexual assault to prove their allegation by “clear and convincing evidence,” which she said is contrary to the Title IX mandate and the standard in the justice system.
Title IX states that the burden of proof must instead be a preponderance of the evidence, a lower evidentiary standard.
Rape is a heinous crime, and all decent people insist that rapists be punished to the full extent of the law. But we also want the accused to enjoy the right to due process, a bedrock principle of American jurisprudence. The ugly truth is that sometimes rape charges can be false. A lower evidentiary standard makes it more difficult for the innocent to prove innocence.
It is notoriously painful for a woman to follow through on a rape accusation, but that is not sufficient reason to make it easier to conclude that an innocent person is a rapist. Title IX rules, unfortunately, deny the accused his (and the accused is generally a he) rights to a fair hearing.
The OCR found that Harvard was, in its opinion, giving too many rights to the accused. The Huffington Post report on the December resolution would make you laugh if it didn’t almost make you cry:
Harvard Law School violated federal law by giving more rights to accused students than to accusers in sexual harassment and assault cases, the U.S. Department of Education's Office for Civil Rights announced Tuesday.
The decision closes one of the longest-standing federal investigations into allegations that a school was violating the gender equity law Title IX in its handling of sexual harassment and rape cases. The investigation of Harvard Law began in December 2010, and ended on Dec. 23 with a resolution agreement stipulating action items the school must take under federal monitoring. The department announced the agreement Tuesday and sent a letter of its findings to the school.
You can read the letter of agreement between Harvard Law Dean Martha Minow and the DOE here, but the gist of it is that the accused will have far less ability to prove innocence in the event of a false accusation. And Murphy is right: there will be a ripple effect. Murphy wrote:
"[Former rules for handling sexual assault accusations at Harvard] also accorded accused students more rights than victims even though federal law, including Title IX, grants far superior legal status to students who endure civil rights harm compared to those who commit civil rights offenses."
“Of course there is much to refute in Murphy's account, as a matter of fact and principle, but here,” Wendy Kaminer, the maverick former ACLU board member, citing the above quote from Murphy, said via email, “is a classic example of assuming your conclusion, which suggests that, on some level, Murphy probably doesn't think we should bother with any fact finding process in assault cases at all (at least in those cases where women are allegedly assaulted by men. There's apparently no such word as "allegedly" in her vocabulary.)”
"It also accorded accused students more rights than victims even though federal law, including Title IX, grants far superior legal status to students who endure civil rights harm compared to those who commit civil rights offenses."