TO THE HARVARD LAW RECORD:
Anna Joseph and Kerry Richards do a disservice in their criticism of Professor Emeritus Alan Dershowitz published in the Opinion section of the issue of February 18, 2015.
Dershowitz, it is now widely known, was recently accused in a court filing by a victim of child sexual abuse who is now a 31-year-old adult. This accusation was filed in a case in which Dershowitz is not a party. Rather, a former client of his is the party, and so Dershowitz has no standing to file a defense of himself, including a motion to strike the gratuitous accusation. (I say that the accusation is “gratuitous” because it is of no evidentiary or legal moment in the lawsuit or in the matter in which the filing was made.) Dershowitz has widely protested, in his intervention motion filed in court, and in his public statements in the news media, his innocence, and his frustration at being without a legal forum in which to vindicate himself and prove his now-adult accuser to be a perjurer.
Joseph and Richards appear to have little regard for the painful, somewhat Kafkaesque conundrum of Dershowitz’s position – to wake up one morning and learn that you are being accused of a heinous crime, without any apparent standing in which to test the veracity of the accusation or of the accuser. Instead, they take him to task for not “showing compassion” toward his now-adult accuser. In particular, they attack Dershowitz for attacking his accuser as “a prostitute” and for claiming that she “was not victimized…she made her own decisions in life.”
It is true, of course, that an underage child who is the subject of sexual abuse cannot, either legally or morally, be held responsible for her own victimization. However, Dershowitz’ vigorous and harsh attack on his accuser was launched against a now-adult who has made a most serious accusation in a highly-public proceeding, presumably knowing that the object of these accusations has no evident means to legally test their truthfulness. Dershowitz, quite appropriately, has been even harsher on the lawyers who filed the accuser’s statements, but the fact that he would not allow the 31-year old accuser completely off the hook should not be surprising. To the extent that his volley might strike some as reflecting badly upon an underage victim of child sexual abuse, he perhaps overstated, but given the provocation, some over-reaction is understandable in view of the fact that the adult who the child has become has launched such an extraordinary attack in such an extraordinary and unfair procedural posture.
In the important fight against child sexual abuse, one must always remember that just as the abuse is horrific, so is a false accusation morally unacceptable. Unfortunately, our legal system is structured in such a way that such an accusation can apparently be made, by a now-adult claiming to have been victimized by a non-party to litigation, in a procedural posture where the accused is without legal recourse for either vindicating his reputation or holding his accuser to standards of truth and justice.
Sincerely,
Harvey A. Silverglate
Editor’s Note: Harvey A. Silverglate graduated from Harvard Law School in 1967. He is co-founder of the Foundation for Individual Rights in Education and is a prolific author and legal scholar.