Harvard University believes in due process, just not for those accused of sexual harassment. That, in essence, was the message that the university sent when it published its new sexual harassment guidelines in July. The rules erase the anachronistic system of “due process,” replacing the outdated adversarial model with an inquisitorial system.
These are no small changes. Now, all decisions run through a black box, two-person “investigative team” which acts as prosecutor, judge, and jury and whose decisions of fact are non-reviewable. Bypassing the usual process of letting each of the schools decide for themselves whether and how to adopt these standards, the administration in their wisdom has decided to unilaterally impose them on each of the member schools.
First of all, we would like to thank the central Harvard administration for helping us out. We here at the Harvard Law School have never really thought deeply about the weighty policy balancing between preserving the rights of the accused and ensuring that justice is done. We don’t have professors that teach entire courses on that, or an entire library filled with books on that, or an endless stream of guest lecturers brought in to debate and critique that. No, we here at the Harvard Law School are sitting in the dark, utterly stupefied. We’re glad the central administration hoisted its new standard upon us, giving no discretion to the plebian heads of HLS who, again, never think about these issues.
Secondly, we understand that sexual assault and how the university responds to it is a major problem that needs to be addressed, but trampling over due process rights is hardly the way to do it. We were all shocked last semester by the Crimson article “Dear Harvard: You Win”—shocked that Harvard officials responded so poorly and shocked that they were so incapable of helping the sexual assault victim. But the solution to that problem is better, more competent officials, not simply lowering procedural safeguards so that still-incompetent officials have a better conviction rate.
At the end of the day, Harvard’s new policy amounts to simple discrimination, a terrible irony as that is precisely the evil it was intended to correct. Don’t believe me? Let’s look at your different rights if you are accused of sexual or non-sexual misconduct at HLS:
(1) Adjudicating body:
Non-sexual misconduct: The Administrative Board, an 8-person group consisting of three faculty, three students, and two administrators, hears cases. “The Board does not consider itself to be an adversarial or prosecutorial body. Its disposition is to handle matters that come before it as favorably to students as possible consistent with the maintenance of the high academic and ethical standards of Harvard Law School.”
Sexual misconduct: Determinations of fact are made by an investigative team consisting of an investigator assigned by the university’s Title IX office and a person designated by the law school. This body conducts the investigation as well as makes the final conclusions of fact. The investigative team’s factual conclusions are not reviewable by the board.
(2) Rights of accused:
Non-sexual misconduct: “the student has a right to a hearing before the Board” / “All students may appear with legal counsel and a lay advisor” / the student is “given an opportunity personally to make a statement to the board” / “the student shall have the right to call his or her own witnesses and examine all witnesses”
Sexual misconduct: “The Respondent shall have seven business days in which to submit a written statement in response to the allegations.” / “The decision-maker or investigator will request individual interviews with the Complainant and Respondent, and, as appropriate, other witnesses, which may include those identified by the parties as well as relevant officials.” / “Written statements from witnesses may be admitted. If so, the parties are entitled to an opportunity to review and reply to witnesses’ statements.” / Respondents may bring an adviser to an interview
(3) Burden of proof:
Non-sexual misconduct: “Disciplinary sanctions shall not be imposed unless conduct warranting sanction is established by clear and convincing evidence.”
Sexual misconduct: “Formal disciplinary sanctions shall be imposed only upon proof by a preponderance of the evidence of the alleged violation(s)”
Needless to say, this system gives you different rights based on the crime for which you are accused, a notion antithetical to the very rule of law we try so strongly to protect. Recognizing this, 28 of our brave faculty issued a statement condemning the new policy for its “entirely inadequate,” “starkly one-sided” rules. In addition, they condemned the “inappropriately expanded” scope of criminal conduct
If we’re serious about sexual assault, here’s what we should do:
(1) Keep the Investigative Team, but change its function. A professional team is desirable to avoid the kind of blunders enumerated in the original Crimson article, but this team should not take on the role of both prosecutor and adjudicator. Rather, its role is to thoroughly investigate the complaint and present the findings to the Board, and help both Complainant and Respondent navigate the administrative hurdles to their case, so they do not have to go through the same endless fights with the administration that the Crimson author did.
(2) Reinstate the role of the Board: The Administrative Board decides the disciplinary actions of all other matters, and no exception should be made here.
(3) Equalize the standard of proof: There is no excuse for lowering the standard of proof for certain misconduct and not others. Make the standard equal.
In short, we need to provide more resources to the victim, but do not deny process to the accused. The investigative team should be a way to help the complainant respond, not act as an end run around the well established student judicial processes. Sexual assault does need to be addressed, but the current policy is a step backward rather than forward.