Burden of Proof

In a year when the Faculty voted to require more evidence before the Ad Board would investigate sexual assault complaints, the University itself has been forced to prove its case.

Courtesy OF Casv

Members of the Coalition Against Sexual Violence protest the institution of the new Ad Board procedure on the steps of University Hall last May.

This article went to press before the May Faculty meetings, when the Leaning committee—the most recent group to investigate and review Harvard’s sexual assault policy—was slated to present its findings to the Faculty.

Jane says that two years ago she was raped by a fellow student.

Friends who saw her at a party with Dave on the night in question testified in her Administrative Board case that she was drunk before the alleged rape and upset afterwards.

But none of those friends were there in Dave’s room late that Saturday night. In the end, it was her word against his—and the Ad Board members, unable to make a judgement, ruled that no action should be taken against Dave.

Jane’s case cuts to the heart of the biggest weakness in Harvard’s procedure for handling allegations of sexual assault: its inability to render decisions where there is little evidence independent of the statements of the two parties involved.

In an attempt to make such investigations more efficient and more fair, College administrators proposed a major change to Harvard’s sexual assault policy last spring.

At a poorly attended Faculty meeting, Dean of the College Harry R. Lewis ’68 pushed through a new measure requiring “independent corroborating evidence” before the Ad Board would launch a full investigation of any peer dispute.

The idea for the new provision came from the recommendations of a Faculty committee created in 2001 to evaluate the College’s procedures for handling sexual assault cases.

That committee highlighted the difficulty the Ad Board has had in coming to a resolution in “he said, she said” cases like Jane’s.

In the seven sexual assault cases that went before the Ad Board during 2000-2001—the academic year prior to the committee’s creation—the Ad Board found enough evidence to discipline an accused student in only one case.

Though the Faculty passively approved the change, fears that the Ad Board would ignore cases like Jane’s produced a wave of outrage in the student body and among some professors.

The Coalition Against Sexual Violence (CASV) drew national media attention when it staged a protest on the steps of University Hall, and a student complained to the U.S. Office for Civil Rights (OCR) that Harvard’s policy discriminates against women.

In response, Lewis formed another Faculty committee, headed by Professor of International Health Jennifer Leaning ’68, to scrutinize the resources available to victims of sexual assault on campus and the College’s sexual assault education program.

After a year of intense review of the College’s sexual assault policies, the Leaning Committee has come out with sweeping recommendations for change.

In a 73-page report released in April, the committee proposes the creation of a College office specifically aimed at preventing sexual assault on campus, an extensive preventive education program and changes to the Ad Board’s policy for such cases.

And while the OCR found that the Ad Board procedure does not violate gender discrimination laws, in their final meeting of the year, the Faculty may strike the three little words which seem to have started it all—“independent corroborating evidence”—from the policy for investigating peer disputes in favor of a softened statement encouraging students to submit evidence to support their claims.

But numerous committees—from a 1991 Date Rape Task Force to the Ellison Committee—have sought to improve the way the College handles cases of sexual assault, without producing any real results.

And though student activists and administrators say they hope the campus is on the brink of a new era, they worry that even after the past year’s battles these recommendations will never make it off the page.

THE PRELIMINARY INVESTIGATION

Jane, a junior at the College who asked that neither her nor Dave’s real name be used in this story, says that one Saturday night in the fall of her first year here she went to a pre-party in her Yard dorm and then to a party in an upperclass House.

By the time she reached the party, she had already had three beers and two shots of rum, she recalls. She had six more drinks of hard alcohol at the party.

By that time, she says she was so drunk she was “feeling very dizzy and numb” and started dancing with Dave, whom she had met the night before at a party in her dorm.

“He had to hold me. I was dancing on his feet,” she says. “I was knocking over bookshelves.”

Both Jane and Dave wrote in their reports to David B. Fithian, assistant dean of the College and secretary of the Ad Board, that when the party broke up at 1 a.m., Dave asked Jane to go back to his room and they walked back to his first-year dorm.

The next four hours in his room are a blur to her, Jane says, with many gaps in her memory when she thinks she blacked out from drinking.

But she says she remembers him sexually assaulting her twice in the next four hours as she lapsed in and out of consciousness. She says she did not want to have sex with him and never consented but was too drunk to defend herself.

In Dave’s final statement, he says she consented to having sex with him.

Jane submitted a list of 15 witnesses when she filed her complaint with the Ad Board.

A subcommittee of the Board interviewed each of these witnesses, who included friends she had spoken with the day after the alleged incident, people who had seen her at the party and a friend of hers in Dave’s dorm who checked on the couple that night.

Fithian says that the more information available to the Ad Board, the more likely it will be able to come to a decision. But even a large number of witnesses cannot guarantee that a case will be resolved.

Jane took her case to the Ad Board last winter. Last spring the Ad Board found that there was not enough evidence to reach a clear resolution on the case.

Jane’s case is emblematic of the “he said, she said” cases that Lewis, in recommending the policy shift last spring, said the Ad Board did not have the investigative tools and know-how to solve.

Administrators say the Board saw a glut of sexual assault cases—and they were unable to reach a verdict in most of the cases.

In 2001, Lewis and former Dean of the Faculty Jeremy R. Knowles tapped Dean of the Graduate School of Arts and Sciences Peter T. Ellison to examine the Ad Board’s procedure for peer dispute cases out of a concern that students like Jane had unrealistic expectations in bringing sexual assault complaints to the Ad Board.

Under the old policy—which was in place when Jane’s case was heard—when a student brought a complaint against another student, a subcommittee was immediately appointed to gather evidence and conduct interviews. After this investigation, which for sexual assault cases typically lasted around three months, the full Ad Board would vote on the charge.

But under the policy advocated by the Ellison Committee—which the Faculty approved last spring—a subcommittee is not automatically appointed. Instead, both the complainant and then the respondent are required to submit to Fithian their version of the alleged incident and a list of witnesses that could corroborate their accounts. Fithian then asks those witnesses to submit statements.

After this initial investigation, Fithian presents the evidence to the chair of the Ad Board, who must choose whether to immediately send the case to a subcommittee for a full investigation. If he thinks it unlikely the Ad Board will come to a resolution in this case, the chair can ask the full Board to vote on whether a full investigation should be conducted. The Ad Board can then vote for a full investigation to be conducted, to dismiss the case or to defer it if there is a possibility that more evidence will be brought forward.

Fithian says he believes this procedure benefits all students involved in peer dispute cases by allowing both the accusing and the accused students to submit statements before the Ad Board decides whether to initiate an investigation—whereas before just the accused student’s statement set an investigation in motion.

“In a way what this procedural change was designed to do was to make the process by which we review complaints much more open and honest to complainants,” Fithian says.

A DIFFICULT TRANSITION

Jane says she waited almost a year to bring a charge to the Ad Board because she had heard stories about its ineffectiveness and was hesitant to go through the process herself.

And once she made up her mind to take her case to the Ad Board, she says she was confronted at every turn with obstacles—unhelpful administrators, a drawn-out Ad Board process and accusatory questioning.

Jane says the policy requiring independent corroboration is a step in exactly the wrong direction. She doubts that her case would have been heard at all under the new rules.

Jane says that although her primary goal in submitting her complaint to the Ad Board was to have Dave removed from campus, she holds that going through the painful process of an Ad Board investigation is valuable, regardless of the outcome of the case.

“I pretty much knew from the beginning that nothing would happen, but I wanted to do it,” she says. “It’s about justice. I did it to be punitive and I did it for my own peace of mind.”

Despite administrators’ professed desire to improve the Ad Board, the policy change adopted last spring alienated many students on campus.

Student activists on campus, led by members of CASV, protested the policy in front of University Hall soon after it was passed.

Alexandra Neuhaus-Follini ’04-’06, a CASV member, says the Ellison Committee was biased and uninformed.

“It’s pretty telling that the Ellison Committee didn’t talk to a single student or a single community expert on sex assault issues,” Neuhaus-Follini says. “The three members are all current or former members of the Ad Board, and the only thing they brought to the table was what they knew about the Ad Board proceedings and not any background knowledge of sexual assault.”

But Professor of Romance Languages Kathleen Coleman, who served on the Ellison Committee, maintains that the committee recommended the change to make the likelihood of a resolution more clear to students early in the Ad Board process to “allow students to pursue other avenues of possible resolution more quickly” if it is clear that the Ad Board will not be able to resolve the case.

Fithian says he feels many of the students who were upset about the change misunderstand the threshold of “independent corroborating information” that is now required for a full investigation.

“Although we never said it,” Fithian says, “some students took that to mean either an eyewitness or a confession, and that is just flatly untrue.”

Fithian says he regrets that the administration did not make the content of the change and the process leading up to it more transparent to students.

“If we could do it over again we would take great pains to make sure people understood the process we’d gone through—and certainly what was proposed,” he says.

A TALE OF TWO LAWYERS

Two Boston lawyers have lampooned Harvard’s sexual assault policy in recent years—one on behalf of the alleged victims and the other on behalf of the accused.

Harvey A. Silverglate, who co-founded the Foundation for Individual Rights in Education and has represented several students accused by peers in front of the Ad Board, applauds the change, calling an Ad Board investigation a “form of torture” that was unnecessarily inflicted on some accused students under the original policy.

Two years ago Silverglate represented an accused student in a sexual assault case before the Ad Board in which he says the subcommittee conducting the investigation did not interview witnesses who were crucial to prove his client’s innocence. Instead, he had to track down these witnesses and solicit statements from them himself.

“These witnesses turned the case from guilt to innocence,” Silverglate says. “I am highly confident that had the Ad Board acted on its own it would not have had the evidence that led to [the respondent’s] acquittal.”

While the Ad Board found his client not guilty of the charge, Silverglate—along with a professor who refuses to identify himself publicly—took his dissatisfaction with the process to the Faculty.

Silverglate says his case was part of a trend in too many Ad Board investigations of falsely-accused students that created the impetus for procedural change.

“It became obvious at that point that there were a lot of cases that were actually tried that should never even have gotten that far,” Silverglate says. “When that screening method goes into effect there will probably be a higher rate of convictions [and] less of a possibility of false convictions.”

But Boston lawyer Wendy B. Murphy, who represents the student who filed the complaint with the OCR, says she believes Harvard formed the Ellison Committee not out of concern for either accusers or accused, but to protect its own image.

She says the Clery Act of 2000, which requires colleges to disclose their campus crime statistics, makes it advantageous for Harvard to discourage students from bringing sexual assault claims to the Ad Board—which is exactly what she says this new policy does.

“They benefit if they discourage reporting,” Murphy says. “They’d be able to say we have a safe campus because of underreporting.”

Murphy says she thinks the policy discriminates against women.

The OCR complaint filed last June claims that Harvard’s new Ad Board policy violates Title IX because it does not ensure that every complaint of sexual misconduct will be investigated—a rule that Murphy says disproportionately affects women.

“They’re trying to fudge on what an investigation means,” Murphy says. “The bottom line is they’re basically conceding that they don’t take sexual violence seriously.”

Murphy says the full Ad Board has a duty to hear all cases, even those of the “he said, she said” variety.

“There’s no magic bullet that establishes one person’s credibility,” she says. “Sometimes you have to decide.”

But after 10 months, the OCR ruled that the Ad Board policy provides “a prompt and equitable resolution of their complaints” and thus is not discriminatory on the basis of gender.

While the OCR’s report clearly states that Harvard’s policy does not unfairly disadvantage women, Murphy and CASV members say the complaint was a success because it spurred Harvard to change the wording of the policy.

After the complaint was filed, the University changed the phrase “independent corroborating evidence” to “corroborating information” and then to “supporting evidence” in the section on peer disputes in the online version of the guide to the Ad Board.

“[The OCR complaint] was crucial in terms of Harvard realizing that it can’t just make these small changes that do nothing to fix the problem,” says Sarah B. Levit-Shore ’04, a CASV member. “The change from sufficient corroboration to any information a student can provide is a huge retreat.”

THE ROAD TO HELP

Jane says that she tried to talk to several administrators about what happened to her, but found them either too busy or too unapproachable to talk to.

Five days after the alleged assault took place, she says she e-mailed her assistant dean of freshmen, asking to speak with him about vague problems she had been having with “guys” and “alcohol.” She says she did not feel he was a welcoming adviser.

“He was a guy, and it was the first month of my freshman year,” she says. “It shouldn’t be that you go to this man you don’t know, who deals with academic stuff, who is on the Ad Board.”

She also sought out the counseling of Charles Ducey, the director of the Bureau of Study Counsel.

But she says Ducey fell asleep a couple of times during their sessions and she became discouraged with his attitude.

She says Ducey later apologized to her for his conduct through her senior tutor.

Ducey says he cannot confirm or deny her allegations because of doctor-patient privilege.

“If you have to be proactive and then you get shot down, how many times are you going to do that?” she says. “It takes ridiculous amounts of work and courage.”

Jane said she thought about bringing a complaint to the Ad Board throughout all of her first year. But it was not until the fall of her sophomore year, after she bumped into Dave several times, that she decided to file the complaint.

One afternoon after class, she says she walked into University Hall to talk to Karen E. Avery ’87, the assistant dean of the College who consults with students considering submitting a sexual assault complaint to the Ad Board.

Jane says Avery listened to her and listed all of the options available to her, including criminal proceedings and the Ad Board. She told Avery she was concerned about legal costs and publicity and thus didn’t want to go to court—which she says seemed to frustrate Avery.

Jane says she also spoke to her senior tutor, who represented her on the Ad Board, but she says the tutor’s administrative duties prevented her from giving Jane the support she needed.

Jane says she would jog with her cell phone, waiting for calls from her senior tutor about her case.

But she says while her senior tutor was helpful from the beginning, she was busy with other House matters and was constrained by the demands of her job, which she—like all senior tutors—owes to Lewis, the Ad Board chair.

Jane says she thinks Avery suffers from the same conflict of interest between her administrative and supportive capacities.

“She never checked in with me after I went to see her in October,” Jane says. “I didn’t even know she was gone [on maternity leave].”

“You should only have to take that initiative once,” she says. “E-mailing [my assistant dean of freshmen]. That could have been it.”

In a survey conducted by The Crimson last April, more than 70 percent of the 408 students polled said they have a poor understanding of how the Ad Board handles sexual assault and just over a quarter said they would not know whom to call if they were sexually assaulted.

After last year’s change to the Ad Board procedure focused the attention of students, faculty and the national media on sexual assault at Harvard, the Leaning committee given a broad mandate to investigate sexual assault policy.

After a year of researching policies and interviewing students, experts and administrators, the committee has recommended that the University drastically reform the way it deals with sexual assault on campus.

In their report, the Leaning committee urges the University to create a new office—with two full-time employees, one part-time employee, and doors open 24 hours per day, seven days per week—to be the hub for resources for sexual assault victims and preventive education.

In a step towards centralizing some of the sexual assault prevention resources on campus, last October, the College hired Susan Marine, a former counselor at Dartmouth and a Boston Area Rape Crisis Center victim advocate, to fill the new position of coordinator for sexual assault prevention services.

CASV members have long argued that Harvard’s resources—ranging from the Sexual Assault and Sexual Harassment (SASH) tutors to the Bureau of Study Council—need to be centralized in order to make it more clear whom a victim should call.

The Office of Sexual Assault Prevention and Response, proposed by the Leaning Committee, would further centralize the information for students on where to go for counseling and how to file a complaint with the Ad Board, committee members hope.

“Everything will be centrally coordinated so that if education isn’t going well somebody will be responsible for that, if students are having a bad time at the Bureau [of Study Counsel], somebody will be responsible for that,” says Levit-Shore, who was also a member of the Leaning committee. “The complaints are much less likely to fall through the cracks.”

The committee’s recommendations focused not only on how to address the aftermath of sexual assault, but also on how to prevent it.

Currently, the only mandatory sexual assault prevention education occurs in the Safe Community Meeting during Freshman Week that covers a wide range of safety issues for incoming first-years.

“At some schools you need to take a swim test or you don’t graduate,” Levit-Shore said this fall. “I don’t think it would be so ridiculous to do the same for rape education.”

The Leaning committee report recommends a far more extensive education program, including a mandatory session devoted only to sexual assault education during Freshman Week, small group workshops in first-year entryways, House-based education for sophomores and special education programs for student leaders.

But Avery says she doubts the College could force every undergraduate to attend the prevention education even if it were mandatory.

“You have to be somewhat realistic in terms of the power that we do have and that we don’t have,” she said earlier this year. “It’s a hard nut to crack.”

THE BLUR OF ALCOHOL

The Leaning committee cites studies in its report that say 55 to 80 percent of sexual assault victims and 26 to 55 percent of perpetrators had been drinking.

Jane says the Ad Board subcommittee questioned her about how drunk she was, focusing on how she could remember the sexual assault-and climb the stairs to get to Dave’s room in the first place.

Jane says she thinks the Ad Board’s apparent interpretation of the law presents a catch-22.

“If you’re ‘incapable,’ you don’t remember anything,” she says. “If you remembered stuff, you couldn’t be ‘incapable.’”

“They’re saying I was able to express my unwillingness, so I should have pushed him off of me, punching and screaming instead of lying there comatose,” she says.

In many of the sexual assault cases that come before the Ad Board, one or both of the students were intoxicated at the time of the incident—a factor that further complicates the process.

The Handbook for Students defines sexual assault as “any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury. Unwillingness may be expressed verbally or physically. Rape may also include intercourse with a person who is incapable of expressing unwillingness or is prevented from resisting, as a result of conditions including, but not limited to, those caused by the intake of alcohol or drugs.”

Fithian says it is difficult for the Ad Board to determine how much a student was under the influence of alcohol—and therefore difficult for them to conclude a case based on their speculation about the level of drunkenness considering factors like body weight or how much a person had eaten that day.

“How do you measure how drunk someone was at this moment and then an hour later?” Fithian says. “Someone could encounter someone at midnight and they could seem fine, but half an hour later that person could be in a very different place.”

The link between alcohol and sexual assault is one that must be further examined, says Benedict H. Gross ’71, who will become dean of the College in July. Gross plans to make studying the problem of excessive drinking one of his main initiatives as dean of the College over the summer and in his first year.

Professor of the History of Science Everett I. Mendelsohn, a member of the Leaning Committee, said in an April 30 Faculty Council meeting where the Leaning recommendations were discussed that conditions—like excessive drinking—that lead to sexual assault must be addressed.

“We must address the issue of rape, but we also as a community have to deal with the problem of alcohol more seriously,” he said. “There is need for further investigation in the Harvard community to see just how much we need to do about it.”

BACK TO THE (DRAWING) BOARD

But committee members, lawyers and CASV members say the sexual assault policy will hinge on the Ad Board process in the end.

Levit-Shore says preventive education is useless without an effective disciplinary system.

“A significant component of education is if you break this rule, you will be punished,” she said this fall. “If you’re not going to do anything when rape happens, you can have this very extensive education program and it won’t matter at all.”

CASV member Alisha C. Johnson ’04 cites the single-digit number of sexual assault cases that have gone before the Ad Board in recent years as proof that the current policy is not working.

“It’s obvious from that students don’t have faith in the system because if they did more would come forward,” Johnson says. “When someone is assaulted there’s a lot of work they need to do to talk to someone.”

Silverglate calls Harvard’s disciplinary system the “worst in the country” because subcommittees—not the full Ad Board—hear the testimony of every witness.

And Jane says she feels the standards for a victim to prove her case are impossibly high and that she cannot envision a sexual assault complaint being successful without the confession of the accused student—or equally obvious evidence.

“I did not run home screaming and crying. I was not the perfect rape victim,” she says.

While the Leaning committee’s original charge did not include examining the revised Ad Board policy, the committee concluded that it would be impossible for them to leave discipline out of their purview.

The committee recommended in their final report the Board make greater use of a “Single Fact Finder” to investigate peer dispute cases in conjunction with the subcommittee as well as taking over Fithian’s role as the preliminary investigator.

The report suggests that the fact finder—trained in the Ad Board procedure as well as in dealing with sexual assault victims—would help alleviate some students’ concerns that the process takes too long and is not performed by trained investigators.

According to Leaning committee recommendations, Ad Board members should also be trained in peer dispute procedure—although what kind of training is not specified in the report.

CASV members say the success of the fact finder model and the improvement of the Ad Board depends on what kind of training they receive.

Levit-Shore says she hopes the fact finder will eliminate the possibility that a case would not be fully investigated because, according to the Leaning recommendations, the fact finder would investigate every case that came forward.

REACHING A RESOLUTION

And this April—independent of the Leaning Committee—College administrators recommended to the Faculty that those controversial three words, “independent corroborating evidence,” be removed from the Handbook for Students altogether.

At a May 20 meeting, the Faculty will vote on whether to officially soften this language from a requirement of independent evidence to a request that students “provide as much information as possible to support their allegations.”

The new handbook definition proposed to the Faculty also does not predicate the initiation of an investigation “based on information provided at the time of the complaint” as it did before, but says that “based on information obtained through investigation” the Board will decide whether to hear a peer dispute case.

If the Faculty approves this wording change as they rubber-stamped the Ellison committee’s recommended wording a year ago, the Ad Board policy on sexual assault will have come almost full circle in one year—at least in phraseology.

And despite the Leaning committee’s strong advocation of a separate office and revamped education program, CASV members say the protest, committees, votes and countless discussions of the last year mean nothing while the recommendations are only ink on paper.

“We are at a turning point in terms of Harvard seeming to really be serious about combatting this problem head on for the first time,” Levit-Shore says. “Yeah, I am building sand castles but this is just a report.”

While Lewis has remained mostly silent on the issue of sexual assault since setting the Leaning Committee off on its year-long exploration of the policy, in the past he has questioned the Ad Board’s ability to ever successfully adjudicate sexual assault complaints.

And Lewis says that after eight years as dean, he considers sexual assault one of the most difficult issues—especially in light of the media attention and the OCR investigation—he has had to deal with in the College.

There is no easy answer, he says.

On May 20, if the Faculty votes for the recommendations, it will be up to an as-yet-unappointed advisory committee and the College to ensure that the Leaning committee’s theories on the sexual assault policy are implemented.

Then, the committee and CASV members will see whether the new wave of energy to deal with this complex problem fades away as yet another committee report collecting dust or whether the tumult of this year will be the first step towards providing students like Jane with answers.