Harvard Law Professors Reject Sexual Assault Policy

A sizable contingent of Harvard Law faculty reject the new sexual assault policy.

28 members of the Harvard Law School have published an open letter in the Boston Globe decrying the University’s new sexual assault policy. Partly in response to a Title IX investigation by the Department of Education’s Office for Civil Rights, Harvard University has created the (rather bureaucratic sounding) Office for Sexual and Gender-Based Dispute Resolution to handle sexual assaults.

Harvard will move to an investigator model, whereby trained investigators in the new Office will handle sexual assault cases. Furthermore, the standard of evidence for sexual assault cases has been lowered to a “preponderance of evidence” standard, as recommended by the Department of Education, meaning that a defendant will be deemed guilty of sexual assault if it is more likely than not that the assault happened. In contrast, criminal courts in the United States use a much stricter “beyond a reasonable doubt” standard of evidence. It is also interesting to note that during the previous academic year, Dartmouth implemented a similar investigator model and standard of evidence under similar Title IX scrutiny.

Previously, Harvard’s different schools had different sexual assault policies, and some of them had higher standards of evidence. And despite the multitude of changes, Harvard did not move to an “affirmative consent” standard, which demands explicit, active, and continuous consent for any sexual interaction, as the state of California did. Harvard will instead use a “unwelcome conduct of a sexual nature” standard.

Although everyone can agree that sexual assault is a serious problem on college campuses that must be dealt with, the 28 Harvard Law professors elucidate serious shortcomings in Harvard’s new sexual assault policy. They aptly point out that the new policies “lack the most basic elements of fairness and due process,” as the accused lose their right to face their accuser and the right to representation, while the newly created Office, in the words of Jonathan Chait, serves as “cop, prosecutor, judge, and jury–and also hears the appeals.” The Harvard Law faculty members also allege that the University has pursued this new policy by administrative fiat and without due deliberation to appease a small number of federal officials while also implementing an overbroad definition of sexual harassment that does not recognize the nuances inherent in sexual conduct.

Furthermore, this robust opposition to Harvard’s new sexual assault policy is not partisan. The Review‘s correspondent at Harvard Law School, Kirk Jing, states that professors from many political backgrounds, including “some of the most left-wing professors,” have signed the open letter.

It’s clear that a balanced sexual assault policy that is congruent with the liberal ideas of justice and protects the rights of both victims and the accused is necessary.