In Response to “Going to Harvard is a Privilege, but Safety is a Right”: Due Process is a Right, Too

In 1603, Sir Walter Raleigh was convicted of treason in a sham of a trial. Raleigh had no knowledge of the charges’ substance until the morning of the tribunal, when he learned he was accused, on hearsay alone, of plotting to enthrone Lady Arabella Stuart. Years later, as a partial result of his conviction, resigned to the great injustice done to both his body and his name by the tribunal of 1603, Raleigh placed his head on the block, refused a blindfold and — after the reluctant headsman delayed — implored, “Strike man, strike!” How did this murder disguised as justice occur? The answer is simple: an inexcusable absence of due process.

I include this (admittedly drastic) example because outrage at the great injustice done to Raleigh in this witch-hunt called a “trial,” in this persecution disguised as prosecution, contributed to the development of numerous facets of what we today call due process. A recognition of the protracted period it took for such crucial and hard-won protections to develop is, partly, what led twenty-eight Harvard Law professors to criticize Harvard’s new sexual assault policy for lacking “the most basic elements of fairness and due process.”

In response to the professors’ article, a coalition of students signed a well-argued petition in support of the new policy, entitled, “Going to Harvard is a Privilege, but Safety is a Right.” Yet the chief flaw in their reasoning is encapsulated in the petition’s title: Although safety is a right, so is due process.

It is right to be outraged about the despicable treatment of sexual assault victims by our justice system and our universities. Too many rapists and harassers habitually escape punishment; too many victims are still awaiting justice. But although for centuries sexual assault victims have been treated unfairly, so too have those accused of infractions. In trying to protect the former group, we should not sacrifice the latter. We should not support illiberal policies that bear far too much risk of producing the sorts of one-sided trials that condemned Sir Walter Raleigh to imprisonment and eventual death. There is a balance to be struck, a balance that can recognize the unique challenges surrounding sexual assault while nonetheless preserving important procedural safeguards.

Yes, Harvard’s previous sexual assault policy was utterly inadequate to protect victims of sexual misconduct — as are far too many policies still in place at other American universities. But the new policy goes dangerously far in another direction, and the twenty-eight law professors were right to call Harvard out. For a school of Harvard’s caliber to use such a one-sided mechanism to deal with students accused of misconduct is wrong; for a law school to use such a mechanism is absolutely inexcusable.

Before the development of “due process,” too many trials in the Western world were trials only in name. Likewise, Harvard’s new sexual harassment procedures are weighted against the accused so much that while there is a “preponderance of the evidence” standard in theory, in reality the accused may be “guilty until proven innocent.” To list only a few problems:

(1) Because competent representation is not provided, indigent students may have to battle suspension or even expulsion without adequate representation, while wealthy students can avail themselves of the best representation their parents’ money can buy.

(2) The preponderance of the evidence standard is too low given the consequences. Less serious infractions at Harvard, such as academic fraud, merit a “clear and convincing” evidence standard. Why doesn’t an infraction as serious as sexual assault merit a higher standard? As Professor Elizabeth Bartholet points out, for law students specifically the consequences are nothing less than “the risk of being wrongfully found guilty of sexual misconduct, and the related risk of destruction of any future legal career.” That said, the low standard of evidence wouldn’t be problematic were it not for what follows …

(3) Like Sir Walter Raleigh during his “trial,” the accused has precious little time to respond to an accusation. In fact, “the Respondent shall have [only] one week in which to submit a written statement in response to the allegations.” Moreover, in confronting accusations of such a high caliber, accusations with the potential to quite thoroughly ruin his or her life, the Respondent is not entitled to submit a statement authored by anyone else — even an attorney.

(4) As the twenty-eight professors wrote, there is a troubling lack of opportunity to discover allegations until relatively late in the investigative process. How is one expected to prepare a proper defense without thorough and early access to charges?

(5) Finally, the lodging of investigation, fact-finding, prosecution, and appellate review functions in a single office, the Title IX compliance office, is unfair on its face. How can any organization truly review its own decision? Imagine if a court were given appellate review over itself.

Needless to say, this is not how modern societies should conduct trials — even “administrative” ones at universities. For far too long, victims of sexual assault in the Western world have experienced horrific injustice; but the same can be said for those in the past who, like Sir Walter Raleigh, were accused of crimes and other infractions. Again, in protecting the former group, we should not forget the substantive injustice perpetuated throughout history against the latter, before due process became a fundamental right. That we are talking about sexual assault in a university context makes little difference; as Professor Bartholet and others point out, the consequences of a guilty adjudication can nonetheless be drastic.

In the wake of the law professors’ article, some fellow law students I have discussed this issue with have made the ridiculous assertion that the professors don’t support victims of sexual assault. This oversimplifies things. Indeed, there is a great discrepancy in the reasoning of those who imply that providing procedural safeguards to the accused somehow means that one does not support victims of sexual assault. Serving justice to victims of sexual assault does not necessitate such a high risk of serving injustice to falsely accused men and women. As the Duke lacrosse fiasco revealed, there are, very rarely, fabricated allegations of sexual assault. Before stigmatizing students for their entire lives with such a horrific accusation, shouldn’t we be as certain as possible that they are indeed deserving of that stigma? Frankly, giving less due process protections to students accused of sexual assault than we give to students accused of cheating on a quiz makes little sense. Remember what happened to Patrick Witt, a fellow Harvard Law student, after he was falsely accused of sexually assaulting his ex-girlfriend.

One can condemn rapists and harassers and vindicate the rights of victims without sacrificing due process. The balance between too little due process and too much due process is not an easy one to discern; but it is one that Harvard Law professors, some of the keenest legal minds on this planet, have been trained to find. Harvard should grant their opinions great weight when creating a Title IX-compliant sexual assault policy. Universities should recognize that creating a just policy requires striking a balance between procedural safeguards on the one hand and practical considerations surrounding the unique nature of sexual assault infractions on the other.

Because although safety is a right, so is due process.