Kelly Moore, Boalt Hall School of Law, '82
"The Harvard Law School Faculty ("the Faculty") lodge three key objections to Harvard's new Sexual Harassment Policy and Procedures. The Faculty expresses its concern that due process be extended to the accused; the Faculty objects to the way the rules deal with two students who are incapacitated by drugs or alcohol; and the Faculty protests the University's efforts to impose a single uniform policy and enforcement procedure throughout the different Schools at Harvard.
Let us consider each in turn.
DUE PROCESS CONCERNS:
Many parties have expressed concerns about protecting the accused individual's "due process" rights in adjudications involving Title IX interests, but there are two important points to remember about these adjudications. The first -- these adjudications are not criminal in nature and therefore do not require the kind of protections we normally afford criminal defendants. The second -- the purpose of the adjudication is to determine which of two equally-situated parties should be given the school's protection and continued affiliation, the accuser or the accused. Hence, the preponderance of the evidence standard is utilized, because it furthers both of these interests: it recognizes that the right being adjudicated is a kind of property right, subject to the standard evidentiary burden applied in tort or contract cases, and it gives both parties the same burden to meet in his or her efforts to preserve his or her education, that is, to prove his or her case "more likely than not."
It is critical and mandatory to preserve this balance of equal treatment between accuser and accused. If the University generously agrees to extend greater protections to the accused, under Title IX and the various documents interpreting its application, the exact same protections must be extended to the accuser. So, if the University opts to extend greater protections to BOTH parties (e.g., furnish them both attorneys) no Title IX activist could have objection.
The Faculty makes an error, however, in seeking to provide criminal procedural protections in what is merely a property right adjudication. For example, the right to confront the accuser should not be a requirement for these hearings, as it would exert an enormous chilling effect on the lodging of such complaints. A huge percentage of rape victims are unwilling to confront the party who has caused such terrible humiliation, degradation and injury in their lives. Confrontation of the victim is not necessary as long as the accused's questions can be submitted to the accuser, and vice versa.
Likewise, to suggest that there is a "prosecution" in these cases is to misperceive the dynamic involved in the adjudication, and to falsely impute a "criminal" significance to the outcome. Rather, in this kind of adjudication, both parties are responsible for providing facts and evidence that supports his or her version of the events so that the trier of fact can determine whose version wins by a preponderance.
INCAPACITATION BY ALCOHOL
The Faculty has also objected to the rules now applicable to sexual conduct with an inebriated partner, stating that the University has inappropriately expanded the scope of forbidden conduct in new "[r]ules 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 involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students."
This expressed concern displays the Faculty's outmoded bias against an inebriated rape victim, as well as the Faculty's ignorance of the manner in which serial predators hide their conduct under a pall of alcohol. What the new rules do, in effect, is recognize the legitimacy of a victim's outrage at having been used sexually when he or she was unable to consent due to intoxication. It places a burden -- an appropriate and seemly burden -- on the party who wants sexual activity, to make sure her partner is sober enough to consent. This placement of the burden recognizes that the risk of "mistaken" sexual activity will likely be an emotional scarring that impacts an unwilling participant for years, even decades. In engaging in sexual activity despite inebriation, the willing partner is now being asked to assume the risk of being held accountable for not obtaining true and knowing consent.
This placement of the burden also recognizes what Dr. David Lisak has repeatedly established: that sexual predators tend to be serial offenders (60% of rapists rape, on average, six victims each) who have readily disclosed that they use alcohol as a weapon and as a cover. They use liquor and other drugs to incapacitate their victims so that the victim has decreased ability to object or protect him- or herself, and they themselves drink alcohol so they can claim that the sex they have forced was just a "drunken mistake." This predatory pattern has been amazingly successful for decades. The University's willingness to impose the burden of responsibility on the enthusiastic partner will finally begin to strip away the camouflage that has for so long hidden our serial rapists."