Law Professors Attack Harvard's Stricter Sexual Assault Policies

Students at Harvard Law School in Cambridge, Mass. Photograph by Corbis

Members of the Harvard Law School faculty strongly condemned the university’s new sexual assault policies in an open letter published in the Boston Globe on Oct. 15. The group of 28 law professors said that the approach is unfair to people accused of sexual misconduct and that it “lack[s] the most basic elements of fairness and due process.”

Harvard University announced new procedures for handling accusations of sexual assault in July, including the use of expert investigators to look into allegations of anything from harassment in a lab to rape, according to the Globe.

The university, which is one of 60 schools being investigated by the Department of Education for bungling sexual abuse cases, said it would use a “preponderance of evidence” standard in investigating accusations of sexual misconduct, meaning the school would judge cases based on whether it seemed more likely than not that a student committed sexual assault. A guilty finding would not be a criminal verdict but could mean that the student is expelled or faces other disciplinary penalties.

“This particular sexual harassment policy adopted by Harvard will do more harm than good,” the professors said in the letter, noting that the new investigative procedure would be “overwhelmingly stacked against the accused.” The professors said the policies unfairly favored one party when both were intoxicated and prevented accused students from “present[ing] a defense at an adversary hearing.”

The new policies at Harvard are part of a nationwide effort among colleges to institute stronger protections for victims of sexual assault in response to pressure from federal and state governments. Last month, California Governor Jerry Brown signed a law requiring schools to implement “affirmative consent” rules, meaning that students would have to agree explicitly to engage in sex for it not to be considered rape by administrators.

Several colleges tightened their policies following a 2011 letter sent by the Obama administration, which instructed schools to respond more forcefully to rape on college campuses or risk losing federal funding. The letter noted that one in five college women are victims of attempted or actual sexual assault and that colleges reported 3,300 cases of “forcible sex offenses” in 2009, statistics that the government called “deeply troubling and a call to action for the nation.”

The new rules have been criticized by some legal experts, who say the policies are fundamentally unfair.

“They are being pressured very strongly to adopt policies that either pay little regard to due process or actively imperil accused students rights,” says Joseph Cohn, the legislative policy director at the Foundation for Individual Rights in Education. Schools are “petrified,” Cohn says, of crossing the government.

“I think we’ll start seeing more faculty, who don’t have the same institutional fears that the universities themselves have, starting to speak their minds.”

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