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On Sexual Assault, Harvard Takes Big Step Forward

Wednesday, July 9, 2014

Let's hope this policy flashes a red light at any schools that might be considering enforcement of the backward Campus SaVE Act passed last year.

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Let's hope this policy flashes a red light at any schools that might be considering enforcement of the backward Campus SaVE Act passed last year.
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Caption: Campus of Harvard

Credit: Manuel Menal on Flickr under Creative Commons 2.0

BOSTON (WOMENSENEWS)-- Harvard should be praised for its new sexual assault policy. Released last week, the policy stands as the death knell of the Campus SaVE Act, a federal law enacted last year that weakens Title IX, the 1970s law that guarantees women safe and equal access to education.

The new policy represents for me the result of years of legal battle. It comes 12 years after I filed a first-of-its kind complaint against Harvard College with the Education Department's Office of Civil Rights; four years after I filed a similar complaint against Harvard Law School; four months after I filed a federal lawsuit implicating Harvard's policies for being noncompliant with Title IX; and only a month after I gave a talk at Harvard to an alumnae group and to the school's Title IX coordinator.
 
That the world's most powerful university has rejected key provisions in SaVE will make it easier for students and advocates across the country to prevent other schools from enforcing SaVE and violating women's rights.
 
Here's the good news about Harvard's new policy.
 

Preponderance Standard

Harvard will apply a "preponderance of the evidence" standard when determining whether an incident occurred. In the past, students reporting sexual assault faced a much more demanding standard of "clear and convincing evidence," which devalued women's worth on campus by declaring a credible victim's word inherently insufficient to merit sanctions against an offender. Under the new rule, the word of a woman will properly be accorded the same value as that of any student reporting or defending against any type of civil rights violence or harassment on campus. And because "preponderance of the evidence" means it is "more likely than not" that an incident occurred, it will much easier for victims to prove their Title IX rights were violated compared to the "clear and convincing" standard that required far more proof.
 
Harvard will also define violence against women in accordance with civil rights laws that use terms such as "unwelcome" and "offensive." This is a vast improvement over Harvard's past practice of defining offenses using criminal codes that use terms such as "force" and "non-consent." Civil rights terms appropriately lower the burdens on victims to the same standards that apply when students report violence and harassment based on other protected class categories such as race and national origin.
 
Harvard's acceptance of the preponderance standard and use of civil rights definitions bolsters the lawsuit I filed against the Department of Education in D.C. Federal Court in March, on behalf of all women students in America, to stop SaVE from being enforced on the grounds that it violates women's equal protection and due process rights. A wolf in sheep's clothing, SaVE sounds like a law that helps women. But a careful read of the language reveals the horrifying truth – that SaVE weakens Title IX.
 
Campus SaVE raises barriers to recourse for victims of gender-based violence by allowing schools to set a higher standard of proof, such as "clear and convincing" evidence, compared to the lower burden of proof applied to matters involving victims of other types of civil rights violence. SaVE also requires schools to define gender-based civil rights violence using criminal-law terms such as "force" and "non-consent" rather than less demanding civil-rights terms such as "unwelcomeness" and "offensiveness." My lawsuit asks the court to forbid the Department of Education from enforcing those as well as other offensive provisions from SaVE.
 
After I filed suit at the end of February, President Barack Obama said corrective legislation and an executive order might be necessary. Senator Claire McCaskill, the Democrat from Missouri, then convened hearings that, presumably, will be used as the basis for an amendment to SaVE that will eliminate some of its problematic provisions.
 
Until then, students and advocates should carefully scrutinize policies and take action against schools that embrace SaVE's discriminatory provisions. To support that effort, my students and I filed new complaints against 10 schools over the past two weeks – one in each DOE region – that have already embraced SaVE's harmful provisions. MIT and the University of Chicago in particular should take a lesson from Harvard.
 
Despite the positive developments at Harvard, weaknesses remain.
 

University-Wide Policy

Harvard created a university-wide policy covering all its various schools and programs, which is helpful because it had previously utilized unwieldy and inconsistent boondoggle policies that were confusing and made enforcement needlessly difficult. But that unified policy remains problematic because it segregates gender-based violations for separate treatment by an office that handles only sex-based offenses. A truly unified policy would have ensured that all forms of civil rights discrimination, harassment and violence against all "types" of students would be handled at the same office under the exact same procedural and substantive rules.
 
Furthermore, it is not clear whether Harvard guarantees women truly "equitable" redress since one part of its policy uses the word "equitable" while another promises only "effective" redress. "Equitable" is obviously preferable because it promises the exact same policies and procedures for women as for all other protected class categories such as race and national origin.
 
In addition, Harvard's policy is blatantly inequitable in terms of the time it takes to resolve a gender-based civil rights violation. The new policy says an investigation will be completed within six weeks. But first an "investigative team" must complete an initial review "without delay." Harvard students and other advocates will have to work hard to insist that officials interpret "without delay" to mean days, not weeks and it's worth noting that less serious non-civil rights cases, such as theft of laptops, are completely resolved within four to eight weeks.
 
The appeals process is another area of concern because appeals are allowed in cases involving less serious misconduct, such as theft, if the process or punishment is "inconsistent" with past practices. This is not an option for victims of gender-based civil rights violations, but it should be given that sexual assault cases in particular often result in "inconsistent" results and relatively meager sanctions compared to other misconduct on campus. Sexual assault victims should be allowed to appeal on the grounds that offenders who committed less serious sanctions received more serious punishments.
 
The question now is, which school will do Harvard one-step better? Which school will be bold enough to assume bragging rights as the first school in the nation to embrace an iron-clad prohibition on violence against women with explicit directives guaranteeing fully equitable substantive AND procedural redress of gender-based civil-rights violations – at the exact same table of justice with victims of civil rights violations based on race and national origin? It's a once in a lifetime opportunity for a lower-tiered school to truthfully declare itself a "better" school than Harvard. Let the bragging-rights war begin!
 
Wendy Murphy is a professor of sexual violence law at New England Law/Boston. A former sex crimes prosecutor, Murphy has written numerous law review and pop culture articles on violence against women and children. Her first book, "And Justice For Some," was released in hardcover in 2007 and was recently updated and re-released in paperback.
 
 
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