Last week, 16 University of Pennsylvania law professors signed a letter protesting the lack of due process in the school’s sexual assault adjudication procedures. This follows a similar letter, signed by 28 Harvard Law faculty. It comes, as well, on the heels of a series of important articles by prominent feminists that individually, and even more so in combination, mount a powerful critique from a liberal feminist perspective.
I’ve debated the issue previously with Ezra Klein, in a mostly abstract context, with Klein advocating the importance of instilling fear in male college students, and me defending the importance of due process. Since then, a series of essays have grappled with the issue with more attention and specificity than either Klein or I managed to give the question.
1. In the American Prospect, Nancy Gertner, a Harvard law professor and retired federal judge, explains how the Obama administration’s Title IX enforcement drove universities to create sexual assault adjudication procedures that judged guilt on the basis of “preponderance of evidence” — i.e., a 50.1 percent or greater chance of guilt. Moreover, Harvard’s procedure concentrates all power in an office that is a combined prosecutor and judge, and which by its design “has every incentive to see the complaint entirely through the eyes of the complainant.” Gertner’s description of Harvard’s quasi-judicial process is a horror of due process:
Nothing in the new procedure requires anything like a hearing at which both sides offer testimony, size up the respective witnesses, or much less cross-examine them. Nothing in the new procedure enables accuser and accused to confront each other in any setting, whether directly (which surely may be difficult for the accuser) or at the very least through their representatives. Nor is there any meaningful opportunity for discovery of the facts charged and the evidence on which it is based; the respondent gets a copy of the accusations and a preliminary copy of the team’s fact findings, to which he or she can object — again within seven days, a very short time — but not all of the information gathered is necessarily included. Everything is filtered through the investigative team, which decides the scope of the investigation, the credibility of witnesses, and whom to interview and when. …
The parties may use a “personal adviser” who can be a lawyer, but that adviser may not speak for their advisees at the only relevant stage in this policy, the interview with the investigative team, “although they may ask to suspend the interviews briefly if they feel their advisees would benefit from a short break.” (Indeed, this description sounds like a grand jury proceeding, which is notoriously one — sided, controlled entirely by the prosecutor with no role for the defendant’s lawyer, within the hearing room.) Harvard makes no provision for representation of the accused, particularly for students unable to afford counsel, as the letter of the 28 professors notes. Richer students will have lawyers; poorer students will not.
2. Amanda Hess has written a nuanced and deeply reported investigation of the problem of defining rape on a campus culture that sanctifies binge drinking. Unlike the other two writers cited here, Hess has not set out to make a full-scale critique of campus rape adjudication, and may not even endorse one. She focuses, rather, on a small problem within it. One definition of rape is sex with a partner too impaired to give consent. But what happens when both partners are too impaired to give consent?
It’s politically expedient to claim that there’s a clear line between consensual sex and rape, but the truth is that in cases where a victim’s intoxication is the sole indication that an assault has occurred, the distinction is hard to draw. …
Once she filed a report, Jane’s incapacitation became the sole evidence that she had been victimized, and yet John’s incapacitation could not be used as a defense. According to Occidental’s sexual misconduct standard, Jane was too drunk to consent to sex because she lacked “awareness of consequences,” the “ability to make informed judgments,” and the “capacity to appreciate the nature and the quality of the act.” Meanwhile, John was held responsible because he “knew or should have known” Jane was incapacitated—a calculation that’s based on what a sober person would have known in his circumstances.
3. Most recently, Janet Halley, also a Harvard Law professor, has an essay in Harvard Law Review that explores the same contradiction identified by Hess:
But note also the steep asymmetry between the consequences of drinking and drug use for the complainant and for the respondent: for the former, intoxication is, to one degree or another, the basis for a per se finding of unwantedness even when assent — even when consent — has been given; but for the latter, it has no mitigating effect on his conduct. And now let us say that two Harvard students — one male, one female — have sex after drinking, using drugs, or both, that each of them feels intense remorse and moral horror about it afterward, and that they both rush the next morning to the Title IX Office with complaints. Let’s say they drop their complaints on the receptionist’s desk simultaneously. Which of them gets the benefit of the per se imputation of unwelcomeness, and which of them carries the heavy handicap of no mitigation? The woman and not the man? Both of them? Neither?
Halley argues this is not merely an odd hypothetical problem, but a paradox that exposes an important conceptual problem in the way universities define sexual assault. An important element of the process turns out to be the complainant’s sense of trauma, which is subjective, and thus hard to regulate. That is, outside of easy-to-define acts of sexual assault, those that are defined by how the complainant feels rather than how the defendant acts become an exercise in mind-reading.
The potential endpoint of this approach is more disturbing than Hess’s scenario:
I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.
There’s no agreement in these essays as to exactly what sorts of policies should be put in place of what currently exists. But it is hard to read them all and maintain the belief that the miscarriages of justice remain a rare or marginal problem in campus sexual assault adjudication. It is likewise hard to believe that these kinds of abuses can persist indefinitely without doing real damage to the systems they represent.
Klein has argued that even higher levels of stringency are necessary, because “It’s those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.” I think it’s hard for that view to survive close contact with the actual workings of the system.