September 2014
The
issuance of the “Dear Colleague” letter in 2011 triggered a race to the bottom
for due process in the Ivy League. The contest began with Yale, which adopted a
new sexual assault policy that prevented accused students from presenting
evidence of innocence in “informal” complaints and redefined the concept beyond
recognition in formal complaints. The race then moved to Cornell, whose policy
was so unfriendly to due process that it aroused intense (but ignored) public
opposition from the university’s law faculty. Brown was next, with
administrators boasting about their desire to keep lawyers out. The latest
entrant is Harvard, where students will be greeted by a new policy when they
return to school this fall.
Harvard’s plan—which is disturbingly opaque in several key respects—contains
many of the due process-unfriendly procedures that have come to dominate the
post-“Dear Colleague” letter landscape. Students will be branded rapists based
on a “preponderance-of-evidence” (50.01 percent) threshold, even as the accused
student will receive virtually none of the protections available in civil
litigation, which uses the same standard. In the college version of double
jeopardy, accusers can appeal a not-guilty finding. And undergraduate students
accused of sexual assault can’t use an attorney in the disciplinary hearing. But
the Harvard policy goes beyond OCR’s requirements in multiple respects.
Harvard’s new procedure is based on the central role of investigators, who the
university proclaims “will have appropriate training, so that they have the
specialized skill and understanding to conduct prompt and effective sexual and
gender-based harassment investigations.” The policy doesn’t say what
qualifications these investigators will have, nor which aspect of the Harvard
bureaucracy—security or Title IX—will supervise their employment.
When a
student files a sexual assault complaint, the matter is referred to an
investigator and (depending on which Harvard school the student attends) a
“School designee.” Harvard doesn’t explain how the designee’s role will differ
from that of the investigator; a cynical person might anticipate that the
designee will function as an ideological commissar guiding the inquiry to the
desired outcome. In the event, the investigator and designee have up to one week
to gather the necessary evidence, meet with the accuser, and determine whether
the accusation “would constitute a violation of the Policy.” They must perform
this task, of course, without subpoena power.
Once
the investigator/designee combination has cleared the inquiry, the investigator
contacts the accused student. The student receives one week to present his side
of the story—without being informed of the evidence that the
investigator/designee duo gathered in their snapshot investigation. This is the
only stage in the process in which the accused student has a clearly delineated
opportunity to present evidence of his own, chiefly “a list of all sources of
information (for example, witnesses, correspondence, records, and the like) that
the Respondent believes may be relevant to the investigation.”
That
list must be attached to a written statement written “in the Respondent’s own
words,” not by an attorney. A few paragraphs later, however, the policy suggests
that the accused student “might wish to obtain legal advice about how this
process could affect any criminal case in which they are or may become
involved.” (The White House Task Force, recall, urges colleges to coordinate
with law enforcement when their investigations find evidence of sexual assault.)
Harvard doesn’t say what the accused should do if his attorney—as, presumably,
most competent attorneys would—recommends against providing a written statement
under these circumstances.
Once
the accused student produces his statement, the investigator/designee duo
interviews him, the accuser, and any relevant witnesses. The accused student
receives a college “advisor,” who must be a member of his Harvard school—meaning
that only a law student (who could seek a member of the law faculty as their
“advisor”) has a chance of a lawyer representing him at this stage. While the
“advisor” can sit alongside him during the interview, the “advisor” cannot speak
other than to request a short break. Only at this stage does the accused student
obtain the evidence being used against him, but only in a “redacted” form. And
he must commit to not share the evidence with anyone outside of this stage of
the process—seemingly including his attorney, who Harvard forbids from the
interview.
The
investigator/designee duo then produces a written document determining whether
or not—on the basis of a preponderance of evidence—it believes that the accused
student is a rapist. (In one of the guidelines’ many vague aspects, Harvard’s
policy doesn’t specify what happens when the members of this two-person
committee disagree.) The accused student and the accuser have a week to respond
to the written findings, at which point the proceedings close. While it’s
possible that the accused student mighthave a chance to present
additional evidence at this stage (perhaps to respond to accusing witnesses of
whose existence he previously would have been unaware?), nothing in the policy
guarantees that right, nor does the policy require the investigator/designee duo
to consider this new information after they already have affirmed in writing its
belief that the student is a rapist.
Note
what does notappear 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 anywitness. (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.
Finally, Harvard included a fallback provision to prevent exposure of any
dubious conduct by the university. The policy holds that if an accused student
making public the evidence the university used against him, this move in and of
itself could constitute a retaliatory act, and “retaliation of any kind is a
separate violation of the Policy and may lead to an additional complaint and
consequences.” Therefore, the filing of a due process lawsuit against
Harvard—if, like the Occidental lawsuit, the student’s filing included evidence
used by the university—or the leaking of exculpatory material to a watchdog in
the media could be grounds for the university to level additional charges
against the accused student.
As
tilted as these procedures are against the
accused student, the Harvard plan contains two elements that are all but
unique in their breadth.
First,
a Harvard student could be branded a rapist based on the filing of an
anonymouscomplaint. It’s true, the guidelines state, that in some instances
“a request for anonymity may mean an investigation cannot go forward.” But on
other occasions, the investigator/designee duo, or the Harvard Title IX
coordinator, might “determine that the matter can be appropriately resolved
without further investigation and without revealing the Complainant’s identity.”
(The guidelines don’t identify how this determination will be made.) How a
student can defend himself on a charge of rape from an accuser whose identity he
doesn’t know Harvard elects not to explain.
Second, virtually every university sexual assault policy has a statute of
limitations, frequently of a year. The new Harvard policy, however, “does not
limit the timeframe for filing a complaint.” (Continuing the vagueness pattern,
it isn’t clear whether current, or merely future, alumni will have the right to
file sexual assault complaints through the policy.) The guidelines concede that
an accuser acting years after the alleged incident might complicate the
investigation—but, incredibly, imply that Harvard retains jurisdiction over
cases even after the students graduate. (“The University’s ability to complete
its processes may be limited with respect to Respondents who have graduated.”)
Note the word choice: “limited,” not “devoid of authority.”
This
provision raises a host of questions. How, for instance, would Harvard even
track down a student who had graduated against whom a complaint is subsequently
filed? Would the Alumni Association be required to turn over its current contact
information? Once the investigation commenced, how would the university assemble
relevant witnesses? Will the university advise members of the current graduating
class to retain their e-mails and other electronic information lest they need
this material to defend themselves from a complaint filed years later through
the university process? If the investigator/designee duo concludes there’s
a 50.01 percent chance that the graduate is actually a rapist, what sanctions
could the university employ? Retroactively withdrawing the degree? Contacting
the graduate’s current employer?
Despite the threat of additional “retaliation” charges against students who take
such a course, this new policy is a lawsuit waiting to happen.
KC
Johnson is a history professor at Brooklyn College and the City University of
New York Graduate Center. He is the author, along with Stuart Taylor, of Until
Proven Innocent: Political Correctness and the Shameful Injustices of the Duke
Lacrosse Rape Case.
Mindingthecampus.com,
July 28, 2014.
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