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Harvard Gets It Right On Sexual Assault

Recent controversies about sexual assault policies at Harvard University have produced mostly straw man debates that erect bad choices against worse ones. Angst-filled opinion pieces and protests by academics demanding “due process” for offenders have managed to obfuscate things even further, inhibiting the public’s understanding of the simple truth: Violence against women is a civil rights injury on campus, the enforcement of which has nothing to do with criminal justice.

While violence anywhere is also a crime and should be prosecuted as such in the real world, the civil rights law known as Title IX is intended to promote women’s equality in education and prevent gender discrimination, the most severe expression of which is violence.

Because Harvard is not the government, there is no right to “due process” for offenders. Harvard should be fair, of course, but “fair” in civil rights proceedings on campus is not the same as “due process” in real-world criminal justice proceedings. Indeed, many criminal due process standards cannot lawfully be applied on campus because they would violate victims’ federal civil rights.

Schools are mandated by civil rights laws to provide “prompt and equitable” redress for victims. “Equitable” means victims of sexist violence must receive the same substantive redress as victims of racist and ethnic violence. Harvard’s new unified policy laudably provides for such equity. Two key provisions are worth emphasizing.

First, a “preponderance of the evidence” rule is now in place as the burden of proof in campus hearings. Preponderance is appropriate because it is the only standard that presumes the equal credibility of all students. Harvard’s previous standard was more onerous and effectively valued the word of a woman as inherently less credible than the word of all other students.

Second, Harvard now applies an “unwelcomeness” standard to a determination of whether an incident occurred. This is a vast improvement over past criminal law definitions such as “non-consent.” “Unwelcome” protects women’s autonomy because it asks only whether the victim subjectively wanted sexual contact.

By contrast, under “non-consent” and even the trendy “affirmative consent” or “yes means yes” rule, lack of consent is inadequate to establish that an offense took place because an offender’s “mistake” can trump a victim’s actual lack of consent. Such “mistake” defenses subjugate women by diminishing their 100 percent authority over their bodies by however much weight is accorded their attackers’ mistakes.

Many schools are refusing to apply “unwelcomeness” and are instead adopting boondoggle two-track systems such that violence against women can be segregated out from civil rights policies and subjected to more onerous criminal law standards.

Proponents of the two-track approach say “unwelcomeness” will lead to false accusations and unjust punishments, but a student can just as easily lie about “affirmative consent” as “unwelcomeness.” And schools have never complained that “unwelcomeness” has led to unjust punishments in other types of civil rights cases even though the standard has long been used on campus to redress violence on the basis of race, ethnicity, etc.

Similarly hyperbolic complaints about “drunk sex” becoming a felony are silly. “Unwelcomeness,” as with “non-consent,” simply assesses whether a victim had sufficient capacity to make a decision about sex.

Concerns about so-called “sincere offenders” who truly believe they are engaging in sex with willing partners are also misplaced because while an offender’s “mistake” is irrelevant under “unwelcomeness,” civil rights laws require that an act also be objectively “offensive” under community standards. This legal buffer protects “sincere offenders” by recognizing that not all subjective harms rise to a level of punishable under civil rights laws.

If Harvard stands firm on its new policy despite protests from certain professors, it will see fewer sexual assaults and a healthier campus environment, especially for women. It will also avoid lawsuits and federal investigations from disgruntled victims and offenders because strict compliance with Title IX is a near-perfect barrier to liability.

Other schools should follow Harvard’s lead, because parents are watching closely and they know that a university’s true commitment to women’s safety is unveiled in its sexual assault policy.

Schools that define all forms of civil rights violence equitably under “unwelcomeness” demonstrate the highest regard for women’s autonomy, bodily integrity, and full equality. Schools that employ criminal law terms such as “non-consent” reveal that they care more about protecting men’s violent “mistakes.” It’s that simple.

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Wendy Murphy
Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

1 Comment

  • Jim Clark December 3, 2014 (3:57 pm)

    A strong statement in support of an enlightened policy. However, the statement that ” Title IX is intended to promote women’s equality in education” is incorrect, and the focus on civil rights only of women ignores the fact that men also are victims of sexual assault on campus.

    Widely accepted studies indicate that approximately 1 in 6 women and 1 in 33 men are victims of sexual assault. We need to be talking about those 3 in 100 men who suffer the same effects of sexual violence as do women. Although women suffer sexual violence five times more often than men, that does not make Title IX theirs only.

    The exclusion of men from a post about campus sexual violence by a leader in the field of Title IX rights could easily be read by those enforcing the law to believe what society widely believes: men cannot be sexually assaulted. I have seen exactly that attitude towards a client by the disciplinary board at a famous university in New England.

    –Jim Clark, Victim Rights Center of CT

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