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Boston Globe: Harvard to require more proof in sex cases
daemon@ATHENA.MIT.EDU (Felix AuYeung)
Wed May 8 12:48:43 2002
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From: "Felix AuYeung" <auyeung@cbpp.org>
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Date: 8 May 2002 12:46:00 -0400
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Harvard to require more proof in sex cases
By Patrick Healy, Globe Staff, 5/8/2002
http://www.boston.com/dailyglobe2/128/nation/Harvard_to_require_more_proof_in_sex_cases+.shtml
Inaugurating a revised policy for handling college sexual-misconduct complaints, Harvard University yesterday raised the standard of proof for students filing rape and assault charges in its campus judiciary system.
Harvard's new rule, unanimously approved by the faculty, could serve as a model for other colleges, higher-education specialists say. The move bucks the trend in campus disciplinary policy, which has evolved since the 1960s to allow accusers to press sex-assault cases even without concrete evidence.
Starting next fall, Harvard will demand eyewitnesses, physical evidence, and other ''sufficient independent corroboration'' before investigating a sexual assault complaint. If no such evidence is presented, officials can dismiss the complaint and refer students to an outside district attorney or to a new process of ''confidential mediation'' that the faculty also approved yesterday.
The university said this will speed up the complaint process and keep students and officials from getting entangled in thorny ''he said-she said'' cases that can drag on for months.
Currently, at Harvard and many other schools, sexual misconduct complaints automatically trigger an investigation by a judiciary panel - usually a closed-door affair with no lawyers, where victim and accused do not always have to face each other. Critics say such panels breach students' due-process rights and rarely reach a clear resolution.
Because these complaints usually often arise out of alcohol-fueled encounters, they usually yield little evidence afterward, Harvard officials and legal experts say.
''We believe that it is fairer to the students to decline a case up front than to subject them all to a more intrusive process that may take months and, experience has shown, often leaves them dissatisfied and frustrated,'' said David Fithian, an assistant dean of Harvard College, who helps oversee sexual-assault complaints.
Campus judiciary systems, which are independent of the public courts, have their roots in the code-of-conduct and student-rights movements of the 1960s. Before that, ''dean's justice'' ruled the day, when students could be expelled with no recourse.
Yet these judiciaries have come under fire at a number of campuses - and have been the target of lawsuits, most recently at Brandeis University - where students who have been accused say they have been forced to endure proceedings that would be illegal in the American court system.
By amending its system of campus justice, Harvard officials say they are acknowledging that the university is not equipped to always act as private investigator, prosecutor, and judge for its students. Colleges need to make the limits of disciplinary power clearer to students, officials say.
The changes drew fire from some Harvard student leaders who say the school was short-circuiting their rights under the disciplinary system and may eventually force some undergraduates to take their cases to prosecutors, who often appear unsympathetic to date-rape and other sexual behavior complaints that have little corroborating evidence.
''Harvard is saying, `We don't know what to do, we're unequipped to deal with this problem,''' said Sarah B. Levit-Shore, a sophomore who is a leader of Harvard's Coalition Against Sexual Violence. ''To throw your hands up in the face of a student who complains about a rape is a scary thing for the student body.''
Experts on higher education law said yesterday that it is rare for a school to dismiss complaints without full investigations, which is what Harvard's policy change would allow. At the same time, however, many college officials do not like playing this quasi-legal role because it can consume time, money, and energy without leading to a conclusive resolution, lawyers said.
Harvard's policy change is ''a very interesting new wrinkle'' in sexual assault discipline at US colleges, said Sheldon Steinbach, general counsel of the American Council on Education, an umbrella group of 1,800 colleges.
''By moving quickly, you're gathering evidence and witness statements and they're fresh in everyone's mind, and the alleged victim - in a short time frame - would have a clear fix if she wants to reconsider approaching the state prosecutor,'' Steinbach said.
At Harvard, a 30-member committee of deans, professors, and dormitory academic tutors, called the Administrative Board, handles an array of academic and disciplinary matters - everything from requests for sophomore standing to plagiarism and rape charges. Seven sexual misconduct cases were handled at Harvard in 2000-01, each of which took two to four months to adjudicate. Two of the cases ended in a ''scratch,'' or a finding that there were no grounds for action; four cases, all of which involved alcohol, resulted in no action taken; the seventh resulted in the accused student being required to withdraw temporarily from Harvard.
Colleges have no obligation to provide due process to students who file complaints, Steinbach noted, citing state and federal court rulings that say colleges are only obligated to follow their own, written disciplinary procedures to the letter.
In a lawsuit challenging the sex assault complaint process at Brandeis, a divided Massachusetts Supreme Judicial Court ruled two years ago that colleges were not required by law ''to adhere to the standards of due process guaranteed to criminal defendants or to abide by the rules of evidence adopted by courts.'' Students may be punished as colleges see fit, with limited interference from the courts, the Supreme Judicial Court held in its 3-2 verdict.
Edward N. Stoner, a Pittsburgh lawyer who has advised colleges on ways to structure their disciplinary systems, said many educators feel an obligation to provide these judiciaries for students. ''They recognize that criminal law is not the place to try to sort out sexual conduct between college students,'' he said.
Several students yesterday credited Harvard officials with acknowledging shortcomings, but said they wanted the university to do more.
''It's worrisome that a complaint could be stopped before it gets a full hearing before some sort of board,'' said Rohit Chopra, a sophomore. ''The process is already closed, and some of these changes close it even further.''
Patrick Healy can be reached at phealy@globe.com.
This story ran on page A1 of the Boston Globe on 5/8/2002.
© Copyright 2002 Globe Newspaper Company.
