Some Harvard Law School professors don’t like Harvard’s recently installed sexual harassment policy. The Harvard Crimson reports:
“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,” the professors—21 men and seven women—wrote.
Hmm. 21 men and 7 women. Hmm.
Hmmmmm.
The authors also attacked the University for language in the policy stipulating that any instance of sexual conduct that occurs “when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct” will be deemed “unwelcome.” The professors characterized this procedure as “starkly one-sided…and entirely inadequate to address the complex issues involved in these unfortunate situations.”
Starkly one-sided? It should be evenly balanced between an incapacitated person and a non-incapacitated one? Isn’t that a bit like saying a law against assault is starkly one-sided? Of course a regulation or law against having sex with a person too impaired or incapacitated to consent is going to be “one-sided,” because that’s the point.
But hey, don’t forget, “if you want to be in a position to testify and jail a man, don’t get drunk.”
Actually, what they wrote was:
Which is about both persons being impaired while the rules are one-sided,
Starkly one-sided? It should be evenly balanced between an incapacitated person and a non-incapacitated one?
Apparently, they are concerned that they may be assaulted by people who are passed out drunk, or who take roofies and collapse on the couch. Outside of zombie movies I’ve never heard of being assaulted by the incapacitated.
They sure make em smart at Harvaaaaad!
After all the disappointing sexist crap of the last few weeks among supposedly intelligent people, I wouldn’t have believed there could be worse. But this is worse. The law says that sex with someone who is incapable of consent is rape. Harvard law professors think making them obey the law is “starkly one-sded”!!!! Shame.
Well… they are law professors, not ethics professors. Right?
That’s some seriously weasel language in that second excerpt. They’re trying to avoid saying outright that they think the woman has it coming if she’s super-drunk and can’t resist physically.
Having read their open letter, I think they have a point. If their listed concerns accurately reflect Harvard’s new policies, then it would seem as though there are due process concerns. The rights of the accused are an important cornerstone in US law, and I don’t blame them for getting nervous when they feel something so central is being violated.
I read that as being one-sided in a “what about teh Menz” way. It’s like this sexual assault policy is all about coddling women and just leaving the poor men with nothing. After all, drunk men need to be able to get laid or what’s the point, amirite? Sweet Hastur, it hurts to think at that level.
“You were raped, you say? How unfortunate. Well, better luck next time, m’dear.”
John Morales @2:
Actually . . . David Wilkins, last professor alphabetically to sign, is, in fact an ethics professor. “He is a faculty associate of the Harvard University Edmond J. Safra Foundation Center for Ethics.”
Harvard’s standards really aren’t what Harvard would like people to believe they are.
R Johnston, huh. That’s mildly depressing.
Wait, wait, I’ve got this….. (x outta… invert and multiply….carry the 1….)
Women are 18.4% of the world population, right!?
@ 8 FossilFishy
Silly. You forgot to factor in the estrogen vibe coefficient.
*headdesk*
I’d hoped that waking up this morning was the real thing, but no, I’m still in the nightmare.
What the hell is complicated about being too impaired to “request or invite” sexual contact? So here’s a wild idea; if you really find the idea of sexing up that lovely person who is demonstrating all the signs of being blind drunk, why not give them your number on a piece of paper that says “call me” on it? Sex tomorrow is just as good as sex today, and, honestly, if you don’t want to wait tomorrow because you’re afraid that they’ll say no… maybe think about whether you want to be having sex with someone when you think they’d say no to that, and about what sort of person cares more about their own gratification than whether the other person actually wants to be involved.
I’m wondering if any of the previous posters (or Ophelia) bothered to read the actual letter written by the 28 professors and published in the Boston Globe? The Crimson article is somewhat misleading. For example, on the topic of intoxication, the letter reads:
“Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”
The professors are concerned about cases where both parties are intoxicated. I did not get that impression from Ophalia’s post or the Crimson article. Ophelia talks about “an incapacitated person and a non-incapacitated one”.
“The authors also attacked the University for language in the policy stipulating that any instance of sexual conduct that occurs “when a person is so impaired or incapacitated as to be incapable of requesting or inviting the conduct” will be deemed “unwelcome.” The professors characterized this procedure as “starkly one-sided…and entirely inadequate to address the complex issues involved in these unfortunate situations.”
No. The letter published in the Boston Globe does not say what the Crimson says above. Where are they getting that from? Read the letter here. http://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexual-harassment-policy/HFDDiZN7nU2UwuUuWMnqbM/story.html
@Folie Deuce, 11
I would imagine they got it from the letter itself. Luckily, you also quoted it, so I don’t have to search for the specific wording in the letter:
Anyway, here’s what I got from the letter at the time I read it (granted, I didn’t, and don’t have time to read in great detail, so I might be missing something);
They’re annoyed that cases aren’t being treated as if they were being tried in official courts.
They’re upset that the definition of sexual harassment goes further than is required by law.
They’re concerned that their state’s rights are being overruled by damn northern Yankees telling us what to do! I mean… that the schools weren’t given free reign to decide how to deal with sexual harassment for themselves as has apparently been the case previously.
Folie Deuce, you are confused. The article to which Ophelia has linked adumbrates and opines on the letter, and yeah, the professors’ letter reads as you quoted — but the quotations within your penultimate paragraph contains quotations both from the policy and from the letter, rather than only from the letter. Thus the seeming discrepancy.
The quotation from the policy comes from this portion:
Now consider the actual quotation from the letter you’ve adduced: “Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”
You know what’s misleading? The letter itself in relation to the policy.
(Is it not true that, were it the case that both parties are “so impaired or incapacitated as to be incapable of requesting or inviting the conduct”, such conduct could not arise by virtue of mutual incapacity?)
First, thanks for clearing that up John.
I suspect what the profs are concerned about is the following sentence in the policy. “A Respondent’s impairment at the time of the incident as a result of drugs or alcohol does not, however, diminish the Respondent’s responsibility for sexual or gender-based harassment under this Policy.” Sounds sensible enough at first glance. Why should the rapist or harasser be able to use his/her own intoxication as a defense?
Well, consider the following. A & B get very drunk. A rapes B while drunk. A fears B will file a complaint. A pre-empts by filing a complaint against B. Now under the policy, B is the “respondent”. B is in a bit of a bind.
Food for thought. http://www.newrepublic.com/article/119778/college-sexual-assault-rules-trample-rights-accused-campus-rapists
Folie: If both people are drunk enough to meet the policy’s terms (to-wit: “as to be incapable of inviting or requesting” sexual activity), then there won’t be any sexual activity, because neither of them are capable of initiating it. If, on the other hand, one of them is so drunk as to be incapable, and the other person is so drunk as to be capable, yet uncaring if the first is not, then the second is fucking piece of shit rapist. Is it clear now, or would you like to link to another rape-apologist article?
So, okay, for the part about incapacitation, I assume they’re concerned about the part of the policy that says
So, if you’re both too drunk to consent but not too drunk to fuck, sure, there could be a situation where two people have sex without either of them being able to consent. Probably that happens every now and then. And once in a while one of the participants will complain about it later. So okay, you smart lawyers got some better way to deal with this rare edge case? Should “sorry, I was drunk too” be an automatic get-out-of-rape-free card? I hope they’re not proposing that, but they sure don’t have any other proposal. If you say you don’t like the policy, but don’t have a better one to replace it, you’re just whining.
As for “lack[ing] the most basic elements of fairness and due process”, I have no idea where they get that. The policy is here. I don’t see anything in it about the process for handling complaints; it’s a high-level policy, not an enforcement plan. Maybe somewhere there is such a plan, but I can’t find it, and the Globe letter makes no effort to provide a reference to, or indeed even a quote from, any such plan. So I have to assume they’re making it up.
Also: Dershowitz? Really? Sigh.
Rape apologist article? Did you even read it? So I guess due process = rape apology. Never mind that some of the people raising the questions are feminist legal scholars. Universities are in a difficult position of being asked to act like courts of law, something they are not cut out to do. There are no easy answers here.
One of the concerns the 28 profs raised was “The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.” Does that not concern anyone here? Does a university have people properly trained to act as cop, judge, jury and appellate court (could any one body properly exercise all those functions)? Look how that played out in the Colgate case cited in the “rape apology” article.
To many law professors, no amount of due process is enough. When all you have is a hammer, everything looks like a nail.
In the overwhelming majority of criminal cases, the accused is guilty. No criminal defense lawyer will honestly dispute that most of his/her clients are guilty. The reason we have due process is to protect the falsely accused. If you lower due process standards you will convict more bad guys (most of the time, it is a guy) but you will also increase the number of false convictions. Some people are fine with that (nearly every poster here it seems). But don’t have any illusions about the trade off.
Under the Harvard policy, the burden of proof is “preponderance of the evidence”, which means 51% likelihood = guilty. I can see why that makes some law professors uncomfortable.
Yes Folie, all those functions being in the same office is a concern. So, as soon as these profs provide some evidence that those functions are in fact all being handled by the same office, I’ll take notice. Until then, given the issues I mentioned above, I have to provisionally assume that these profs are overreacting.
Here are the procedures:
http://diversity.harvard.edu/files/diversity/files/harvard_sexual_harassment_procedures_student.pdf
I once had sex at a party while drunk with a guy who was also drunk (I’m a woman). I remember it, for the most part, although I know I was too drunk to drive and definitely not thinking clearly. I don’t know, honestly, how impaired he was. It’s not something that I would do again, largely because I think it would be embarrassing now. But I’ve sometimes wondered how to view the consent in that situation. Both of us were well intoxicated, though neither of us was stumbling or slurring or passed out. I initiated, and he responded, and luckily neither of us felt later that something had been pulled over on us. But I think ethically it probably wasn’t a wise thing to have done, since I didn’t know him and he didn’t know me and we had no way to know the other’s limits or boundaries or alcohol tolerances.
Being incapable of giving consent doesn’t just mean that you are passed out and incapable of speaking, to my mind. It also means still bring able to speak but not in possession of your faculties to the point where you aren’t able, reasonably, to give meaningful consent. And that can happen when the person is still moving and still appears to be conscious.
I don’t know that that’s what the professors are arguing about. Maybe they really do just want to throw in “What about the men?” as do often is the case. But I don’t think we do ourselves any service by pretending consent is always clear cut and easy and only terrifically horrible people ever screw it up.
@Deborah #26:
Thanks. I think this needed to be said.
Folie Deuce @23:
It shouldn’t. “Preponderance of the evidence” is the standard used in most non-criminal cases.
I’m not familiar with what standard Harvard and other universities apply in other disciplinary cases (e.g. plagiarism and other academic dishonesty), but I would be surprised if it was “guilt beyond a reasonable doubt.”
Thanks for the procedures link, Alex.
Yeah, so my response to the letter in the Globe is “THIS IS NOT A COURT PROCEEDING”. Nobody is going to jail. Nobody is getting a criminal record. Any criminal prosecution is completely separate. Here is what might happen:
I’m with screechymonkey; somebody has been using hammers only for too long.
Deborah: You initiated, he responded. The policy is specifically about people who are too drunk to initiate things, or to clearly respond. I’m not saying there aren’t cases like yours; I’m saying that in a case like yours, the policy would not apply.
Folie: Yes, I get it. You want the criminal law standard to apply. This is, flat-out, a bad idea. We hold the government to “reasonable doubt” because the stakes are so disparate in criminal cases. This is far more akin to a civil case, where both parties have roughly equal stakes, situational elements aside. The accused, even in a worst-case scenario is not going to end up in a jail cell because of the university ruling. They will experience a life-disruption of great magnitude–as would a victim who is forced to choose between leaving their job/education or remaining in close quarters with their assailant.
And yes, the article was a rape-apologist piece of bullshit. This was easy to see, because it flat-out lied. It claimed that the ‘preponderance of evidence’ standard isn’t used in the courts at all. This is deliberately done to keep people from realizing that we do not, in fact, have to consider treating these cases as anything other than criminal matters. It’s deliberate attempts to ensure that only the most blatantly criminal cases are ever treated as a problem. It minimizes the effects of a “no action” ruling on the victim of a legit assault, and that minimization is the heart of rape apologism.
…Aaaaaand, yup. For academic misconduct, the preponderance of evidence standard applies. Indeed, the procedures are far more one-sided than for sexual misconduct: Any evidence may be considered (no formal rules of evidence), and silence may be taken as admission of guilt.
http://www.hsph.harvard.edu/student-handbook/appendix-b-disciplinary-procedures/
I wonder why these professors are so worked up about due process for sexual misconduct but not for academic misconduct.
Which is why it’s so annoying to see a certain verbose Irish blogger keep saying, in response to accusations that he’s defending a rapist, that he’s not defending a rapist, he’s saying rapes should be reported to the police.
As written, the sole determining factor in who is culpable in the event of conduct between two parties “so impaired or incapacitated as to be incapable of requesting or inviting the conduct” is who the Complainant is and who the Respondent is. I think it’s fair to criticize that as “starkly one sided.” The solution isn’t to say that voluntary intoxication should suddenly be a defense, but to look at the whole course of conduct to ensure that the fact finder isn’t using a standard of impairment that would result in saying both people were too impaired.
@qwints:
Just to reiterate, here are the actions that would most likely be taken in response to such complaints:
Given this, I have trouble worrying too much about the “one-sidedness”. It looks to me that, unless there was good evidence that one party acted egregiously, the worst that could happen is that the complainant and respondent will be prevented from seeing each other.
If that is actually what the complainant wants, then what is the problem? The consequences just don’t seem severe enough for this process to be used punitively by a student whereas it does seem like this policy could protect people from stalking, harassment, abuse, rape, etc. I’m just wondering how this policy could be abused by a complainant. I’m not really seeing it.
How, and, given the relatively benign nature of the potential actions by the school, why? If both parties are similarly impaired but one party decided they were disturbed by the other’s conduct after the fact, what is so egregious about preventing contact between the two parties?