The fight against on-campus sexual assault is surely well-intentioned. New measures have sought to ease the process of reporting for sexual assault survivors, often cited as as a result of Title IX, a federal gender-equality statute. Campaigns against sexual assault have flooded headlines, inviting the nation to have a complex and much-needed debate on the nature of on-campus rape, the definition of consent and even sex. Many of these programs, along with encouraging discussion and education, have improved the way survivors can seek redress for the crimes committed against them.
Harvard University, like many colleges across the nation, has attempted to approach the issue through new changes in policy. Yet, in November, a group of its law professors published a letter condemning the school's new rules, noting how they legally disadvantage men. This represents a somewhat taboo yet still important question. What happens when attempts to protect the rights of individuals, usually women, claiming they've been sexual assaulted conflict with the due process rights of those they accuse, usually men? The law professors write:
"As teachers responsible for educating our students about due process of law, the substantive law governing discrimination and violence, appropriate administrative decision-making, and the rule of law generally, we find the new sexual harassment policy inconsistent with many of the most basic principles we teach."
The professors note that Harvard's new policies, similar to many institutions' changes, severely mitigate and limit the due process rights of those accused of sexual assault. This includes the right to know the crime you have been charged with, right to counsel and the right to an impartial judge. The letter also argues that the definition of sexual assault proposed in the new procedures goes too far beyond Title IX's original provisions, and does not adequately account for situations involving drug and alcohol use.
Yet this is almost ironic, given recent events. On December 30, Harvard Law School was found in violation of Title IX on the basis of sexual assault. The Department of Education report found that Harvard Law's own policies failed to provide "prompt and equitable response[s]" to sexual assault complaints, exemplifying how legally and socially complicated sexual assault can truly be.
An October New Republic article further highlighted how problematic sexual assault procedures on campus can be. Even when students are allowed lawyers, they are not allowed to speak to them during proceedings. Each student must "speak for themselves." Though this may sound good in theory, Judith Shulevitz explains how harmful this approach can be:
"On one hand, if he doesn’t defend himself, he’ll be at a disadvantage. On the other, if he is also caught up in a criminal case, anything he says in a campus procedure can be used against him in court. Neither side may cross-examine witnesses to establish contradictions in their testimony. A school may withhold the identity of an accuser from the accused if she requests anonymity (though it may choose not to). Guilt or innocence hinges on a 'preponderance' of evidence, a far lower standard than the 'beyond a reasonable doubt' test that prevails in courtrooms."
And the accused can still suffer, even before they have the opportunity to defend themselves to their university. Earlier in the month, Slate released in piece titled "The College Rape Overcorrection," highlighting how harmful misguided sexual assault policies have been on the accused. The author, Emily Yoffe, discusses how new procedures presume guilt, an approach antithetical to American law. She also illuminates how merely being accused of sexual assault can be incapacitating; sometimes, students are expelled, without ever being given an opportunity to defend themselves against accusations.
One of the most prominent anti-sexual assault involved Emma Sulkowicz, a student at Columbia University. After her school failed to respond appropriately to her assault, she began to carry around her mattress as her senior art project. This launched a nationwide "Carry That Weight" movement, hoping to inspire policy change after Sulkowicz, along with numerous other students, filed a Title IX complaint.
But Title IX, according to lawyer Andrew Miltenberg, is two-fold. Though the legislation is usually used to protect women, he believes the current system at schools, in many cases, discriminates "on the basis of...male sex."
Ultimately, schools will need to learn how to reconcile fundamental legal rights on both the sides of the accuser and the accused. The debate also leaves many questioning whether universities, compared to the criminal justice system, are truly equipped to handle sexual assault cases.