Skirting Campus Rape

On Aug. 5, the U.S. Department of Education’s Office for Civil Rights announced that it will undertake a formal investigation of Harvard College’s new disciplinary policies and procedures for sexual assault allegations. This decision stems from a complaint filed by an undergraduate in June alleging that Harvard’s policy discriminates against female students.

Harvard’s new policy provides that any student who alleges that another student has committed an act of sexual misconduct—which includes behavior ranging from unwanted touching to rape—must provide “sufficient independent corroboration” or “proof” before the College will launch an investigation. Previously, an investigation would begin after a student submitted a written account of the misconduct. This old method is the way things should be done. And it is the way things are done in the real world and in campuses around the country. When people report crimes, the allegations are investigated, period. Imagine how it would feel to walk into a police station after having your wallet stolen only to have an officer say, “Sorry, we cannot do anything until you provide us with some proof. Your word alone is not good enough.” This is not to suggest that all allegations are always true or that the accused will be found responsible, but the absence of up-front corroboration is not a valid reason to do nothing.

The Department of Education is examining whether Harvard is in violation of Title IX of the Civil Rights Act of 1972. This law requires schools to provide students with access to “prompt and equitable” grievance procedures to resolve allegations of sexual harassment, the most severe form of which is sexual assault. The complaint argues that the corroboration rule violates Title IX because it treats complaints regarding sexual violence in a manner that is neither prompt nor equitable since other types of misconduct are investigated and disciplined without corroborative proof.

Proponents of the College’s new approach claim that requiring corroboration is necessary because peer-to-peer disputes involving sexual misconduct are usually “irresolvable,” and should be avoided because they leave the students involved with little or no satisfaction after months of investigation and analysis. Assistant Dean of the College David B. Fithian, who is also the secretary of the Administrative Board, told the Boston Globe in May that the College believes it is “fairer to 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.” A fact sheet distributed by the College dean’s office in May and posted online states that “the level of evidence needed to successfully resolve sexual misconduct cases is often difficult to achieve, even after a protracted, often emotionally painful, investigation for all the students involved.”

Sexual assault cases will not be “better screened,” as the Dean’s office claims, with a corroboration rule in place. And a resolution will not be easier to achieve— even though such cases often involve one person’s word against that of another. The problem is not that the truth is inherently unknowable, but that those vested with the responsibility of determining the truth lack specialized training to help them deal appropriately with the serious problem of sexual assault on campus. Senior tutors, assistant deans of freshmen, and deans who serve as investigators, interviewers and judges in sexual assault cases have repeatedly complained that without training on the subject, they feel ill-equipped to ask the right questions or render responsible decisions.

Ironically, Harvard’s Handbook for Students takes a purportedly strong stand against sexual violence and warns of serious consequences for any student found responsible for such misconduct. Yet, beginning this fall, the corroboration rule will enable the College to turn a blind eye to sexual violence.

Rather than erecting a barrier that will lead to an abdication of its responsibility—particularly to its female students— the College should provide mandatory training for all Ad Board members, or simply construct a new board that consists of informed, experienced, and highly trained individuals who will be capable and prepared decision-makers.

Harvard has a legal obligation to provide women students with an education free from gender-based violence, harassment and intimidation. This means that when a student reports being the victim of sexual misconduct, the College must, at a minimum, take steps to ensure that this serious form of gender discrimination on campus is responsibly redressed and sufficiently deterred. This cannot be accomplished without baseline standards guaranteeing students a thorough investigation and meaningful right to be heard.

Sexual misconduct, harassment, assault and rape will never have the kind of corroboration that makes resolving peer disputes simple. Harvard knows this—which may explain why the faculty vote to adopt the new rule was “hurried through” last spring, without discussion, in the middle of exams, and in a manner that some faculty described as suspicious. Harvard also knows that requiring corroboration empowers the College to avoid the issue altogether in most sexual misconduct cases. Requiring corroboration may be the quickest and simplest solution, but it is a poor excuse for a meaningful sexual assault policy. Until the rule is abolished, Harvard will have the ignoble distinction of turning its back on the well-being of its female students by failing to deal with the serious and growing problem of campus rape.

Wendy J. Murphy, an attorney in the Boston law firm Brody, Hardoon, Perkins and Kesten, is a visiting scholar at Harvard Law School. Ellenor J. Honig ’04 is a literature concentrator in Eliot House. She is a member of Harvard’s Coalition Against Sexual Violence and Radcliffe Union of Students’ annual Take Back the Night.