Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘sexual assault’

Harvard law professors: stand up to feds on campus-sex courts

This is big:

As members of the faculty of Harvard Law School, we write to voice our strong objections to the Sexual Harassment Policy and Procedures imposed by the central university administration…

Amid the clamor to provide fuller remedies to complainants who file sexual assault and harassment charges, the university is preparing to trample the interests of others:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.

Among the problems: overly broad definitions of misconduct in situations like that of mutual incapacitation by alcohol, and procedures that deny “any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Had Harvard arrived at these rules as a result of purely internal deliberations, it would be one thing. But in practice it’s yielding to strong-arm pressure from the combined efforts of the Obama Department of Justice and Education Department Office for Civil Rights (for more details, see my article for Commentary last year.)  Like hundreds of other colleges and universities over the past year, Harvard responded to this pressure by meekly folding its hand:

The university’s sexual harassment policy departs dramatically from [existing] legal principles, jettisoning balance and fairness in the rush to appease certain federal administrative officials.

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.

It’s especially gratifying to see that the letter’s 28 signers include prominent scholars associated over the years variously with feminist, liberal, and left-leaning causes, such as Nancy Gertner, Charles Ogletree, Charles Nesson, Janet Halley, and Elizabeth Bartholet, along with perhaps more expected names like longtime contrarian Alan Dershowitz. A turning point? Let’s hope so. The letter is here (h/t Eugene Volokh; & further Boston Globe coverage). [cross-posted from Cato at Liberty]

Also: “the danger of holding an innocent person responsible is real.” [Judith Shulevitz, New Republic, quoting Prof. Halley]

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“A presumption of guilt in sexual assault cases”

Civil libertarian Wendy Kaminer, writing at WBUR, says the new White House task force report on campus sexual assault

reflects a presumption of guilt in sexual assault cases that practically obliterates the due process rights of the accused. Students leveling accusations of assault are automatically described as “survivors” or “victims” (not alleged victims or complaining witnesses), implying that their accusations are true….

Thus the task force effectively prohibits cross-examination of complaining witnesses. … But by barring cross-examination, you also protect students who are mistaken or lying, and you victimize (even traumatize) students being falsely accused…. School officials are also encouraged to substitute a “single investigator” model for a hearing process, which seems a prescription for injustice.

More links on the current controversy:

(& welcome Glenn Reynolds/Instapundit readers)

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“Goodbye, pretty much every work of literature ever.”

Alexandra Petri dissects the new federal campus speech and discipline code [Washington Post]:

Forget history (too much sex there, and such unenlightened attitudes towards women). Forget pretty much anything by the ancient authors, especially the “Iliad.” …

Maybe that guy who replaces all the plots of classic literature with zombies can get a job going through these great books and removing all the allusions to unwelcome conduct of a sexual nature with zombies….

It is vital that campus administrators take sexual assault and sexual harassment seriously. But is diluting the label of sexual harassment really the way to go?

More: Peter Wood/Minding the Campus. Earlier here, here, etc.

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After furor, feds walk back campus speech/discipline code a bit

Following a widespread outcry, the Education Department’s Office of Civil Rights appears to be backtracking a bit in its very ambitious “blueprint” which colleges and universities must follow in the name of combating sexual assault. In particular, it now says it does not intend to require universities to punish speech and other conduct that is not objectively offensive, or that is too trivial or transitory to create a “hostile environment” as defined by court precedent. However, it does continue to insist that such behavior is “harassment” and that schools must make it “reportable,” that is, be willing to open grievance and complaint processes to document it. This is really no more acceptable than its first position, for reasons outlined by the Foundation for Individual Rights in Education (FIRE), which has been following the issue. [FIRE, more, Robby Soave]

I’ve got an article on the controversy due to appear in a forthcoming issue of Commentary. Earlier here, here, and here.

More: Rob Jenkins in Chronicle of Higher Education on “Purging My Syllabus.”

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An in-faux-graphic on rape statistics

In recent days media outlets, including respectable ones like Washington Post “WonkBlog”, have circulated an infographic on rape incidence claiming (among other things) that false accusations of sexual assault are a vanishingly rare phenomenon. The chart claims to be sourced to official statistics, but Mark Bennett digs in a bit and finds a pile of at best strained speculation, at worst made-up nonsense. [Defending People]

P.S. This supposedly corrective piece at Slate is if anything worse than the chart it purports to correct, straining to minimize false accusation as even rarer than portrayed. (It’s worth remembering that its author, Amanda Marcotte, has a bit of a history herself when it comes to credulity on this subject.) Bennett again provides a needed corrective: “Forensic DNA typing laboratories — as numerous commentators have noted — encounter rates of exclusion of suspected attackers in close to 25 percent of cases.” (& Greenfield; and an informative followup from Bennett regarding the incidence of false accusation.) Yet more: Washington Post ombudsman says mistakes were made.

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“Due Process Stops at the Campus Gates?”

My Cato colleague Ilya Shapiro on the Obama Education Department’s unsettling insistence that colleges and universities, on pain of losing federal dollars, pare back the due process accorded to those accused of sexual misconduct. [Cato at Liberty]

Plus: earlier on Yale’s submissive reaction to Title IX complaint and suspension of a fraternity. More: “hostile environment” Title IX complaints leveled against other schools as well; Cathy Young on campus sexual assault numbers.

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“All it takes is one false allegation … I sit here as proof of that”

Harrowing story of Brian Leckie, an Ontario therapist and crisis counselor cleared on charges of sexual assault; the legal fees ate up his life savings, and there’s nowhere he can turn to get his good name back. “Only the ER nurses seemed to give me the benefit of the doubt, because they’ve seen it. They’ve seen the lies and the accusations that come through emergency rooms. They see it all the time.” Meanwhile, the two accusers whose charges a judge found to have “no credible” basis cannot even be named in the press because of a publication ban [Mark Bonokoski, “Justice for an innocent man”, Toronto Sun, May 4, via Amy Alkon]

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