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.

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.”