Despite Improvements, Issues Remain With Sexual Assault Procedures

(Part I, Part III, and Part IV of this story appeared on April 30, May 5, and May 7, 2010.)

The Administrative Board’s sexual assault policy is a series of paradoxes.

While the Ad Board—the College’s primary disciplinary body—is not charged with upholding state law, its definition of sexual assault nearly mirrors state policy.

Lawyers are not welcome in the process, except when they are hired by the College to collect evidence for cases.

Administrators say the Ad Board’s primary mission is to help students learn from their mistakes, but the board can also dole out punishments as severe as required withdrawal or suggest the Faculty Council dismiss a student.

Unwrapping these apparent contradictions can be challenging for both board members and outsiders. Criticisms of the Ad Board’s handling of sexual assault cases run the gamut: for example, many would like to see more sexual assault cases end more frequently with decisive rulings, others complain that the board deprives the accused of due process.

Despite the perpetual criticisms and the complexities of the Ad Board process, many individuals involved with the board say that the way it handles sexual assault cases has seen marked improvement since the 2003 Leaning Committee—tasked with re-evaluating how the Ad Board handles sexual assault cases—recommended the regular use of independent fact-finders and the creation of the Office of Sexual Assault Prevention and Response.

While using fact finders has solved some of the issues with the Ad board’s sexual assault policies, many believe there are still fundamental flaws in the adjudication process that need to be addressed.

A PROFESSIONAL SOLUTION

During their review of the Ad Board’s procedures, the Leaning Committee found that many students involved in the process felt that the board “was not doing a sufficiently comprehensive or timely job” in dealing with cases of sexual assault, according to Jennifer Leaning, a human rights professor and chair of the committee.

“Months would go by, which is a long time to be in limbo about something that you felt was an egregious wrong,” Leaning says about the students coping with the gaps between different steps in the process.

Moreover, Leaning says the lengthy proceedings often ended with inconclusive findings, namely the “take no action” ruling in which the Ad Board declares it does not have enough evidence to decide the case.

Prior to the inclusion of fact-finders in the process, members of the Ad Board—comprised of administrators and faculty members—were responsible for interviewing witnesses, collecting statements, and collating evidence, according to John “Jay” L. Ellison, associate dean of the College and the secretary of the Ad Board.

In the past, sexual assault cases took up to nine months to complete, Ellison says.

“Members of the board are not able to devote 100 percent of their time to this, and they had to balance many committee members’ schedules to meet with students,” he says.

In addition, many members of the Ad Board did not possess the training necessary to deal with the complexities of sexual assault cases.

OSAPR Director Sarah A. Rankin says that many Ad Board officers are “uncomfortable” with sexual assault cases, which can negatively impact students’ willingness to share their experiences.

When the Leaning Committee’s report came out in 2003, it offered a solution: an increased reliance on independent fact-finders. Since then, fact-finders—often attorneys who are hired on a case-by-case basis—have routinely been brought in to deal with much of the evidence gathering in Ad Board cases.

As the Ad Board does not perform or require rape kits or forensic investigation of any kind, the board relies heavily on witness testimony—making the fact-finder particularly important to the process. While there are rarely eyewitnesses in sexual assault cases, the fact-finder will interview students recommended by either the accused or the accuser to gain information, according to Ellison.

Though they were not necessarily present for the alleged incident, witnesses may provide valuable circumstantial information, such as the level of intoxication of the victim or the interactions of the complainant and defendant prior to the event, Rankin says.

And “fresh complaint” witnesses—often close friends of the victims who the victim confides in soon after the incident—can verify the consistency of the victim’s account and provide evidence of the victim’s emotional state shortly after the alleged assault, according to Perry Moriearty, who served as a fact-finder for the Ad Board on multiple occasions before becoming a law professor at the University of Minnesota.

The fact-finder also works to find inconsistencies in students’ accounts.

“If there are two students that are completely in disagreement about what happened, it comes down to credibility,” Ellison says. “If the details vary significantly [with each retelling], the fact-finder judges that for us,” Ellison says.

Adams House Resident Dean Sharon L. Howell says she thinks that fact-finders have been a “huge” help to the Ad Board process.

“Because they are professional lawyers, they have a professional sense of what ought to be pursued and what doesn’t necessarily apply to the case,” Howell says. “It’s their dedicated job to organize and follow through with what can be very, very complicated webs of witnesses.”

By the end of the process, the fact-finder has typically interviewed many students—up to 45 in one extreme case, according to Ellison—and written an extensive case report summarizing the information obtained from the witness testimonies and other research.

From start to finish, Moriearty says that the investigation can take fact-finders up to 200 hours.

DEFINING CONSENT

Over the past two decades, criticism of the Ad Board’s handling of sexual assault cases has been divided into two camps: one believes that the Ad Board and the Faculty rules set an unreasonably high bar for finding a student guilty of rape, while the other believes that the board does not treat accused students fairly.

The Faculty’s definition of sexual misconduct, as laid out in the undergraduate student handbook, mandates that sexual assault must “take place against a person’s will or [be] accompanied by physical force or the threat of bodily injury.”

According to the handbook, absence of positive consent is not enough to show sexual assault took place, Ellison says.

“Unwillingness may be expressed verbally or physically,” the handbook reads. The policy adds that sexual activity with a person “incapable of expressing unwillingness”—due to the influence of alcohol or drugs, for example—is also considered sexual misconduct.

However, Pforzheimer House Resident Dean Lisa Boes—who, like all resident deans, sits on the Ad Board—says that this policy is not as inclusive as it should be to encompass the broad spectrum of circumstances surrounding sexual misconduct.

Boes contrasts Harvard’s policy with that of Brandeis University, which defines sexual misconduct as any activity occuring without the “explicit” and “clearly communicated” consent of both parties involved, which shifts the burden of proof to the accused rather than the complainant.

In addition, the Brandeis policy states that evidence of drug and/or alcohol consumption “may raise a presumption of physical and/or mental incapacity,” further broadening the definition of sexual assault.

At Harvard, Boes says, the Ad Board often engages in discussions as to whether or not the accuser was incapable of providing consent due to alcohol consumption—which plays a role in almost every sexual assault at Harvard, according to Ellison.

Boes says that in her experience, the Ad Board often takes examples of the victim being able to carry out a task, such as sending a text message, as evidence that he or she was capable of providing consent.

“I personally believe this is a low standard of conduct for Harvard students,” Boes says. “I think Harvard can do better.”

Howell says she, too, feels that the board’s decision is sometimes restricted by the rules of the Faculty.

“There are moments when what the board is forced to do by Faculty rules feels incommensurate with the outcome I would like to see,” she says.

While some Ad Board members question the Harvard’s definition of sexual assault, Ellison says there has been no formal inquiry into changing the College’s definition of sexual assault.

“There has been discussion at the Board and, I believe, among some members of the faculty, concerning the definition, but I am uncertain if that will end up in a reexamination of the policy,” he wrote in an e-mail.

THE RIGHTS OF THE ACCUSED

While some Ad Board members and other administrators worry that sanctions are not always given when they are warranted, some attorneys involved with the process and Faculty members say they are concerned that students accused of sexual assault are not being treated fairly.

Harvey Silverglate, a lawyer who has been employed by dozens of students going before the Ad Board since 1969, is a strident opponent of the process, going so far as to call it an “evil system.”

Silverglate, a Harvard Law School graduate, says he takes issue with the board’s label as an educational body.

“They don’t get at the problem that this is a disciplinary body that pretends it’s something else,” he says.

Yet members of the Ad Board emphasize the educational nature of the body and say their intention is to have students learn from the proceedings.

Ellison is also quick to point out that the Ad Board does not allocate consequences with the same severity as a court of law.

“Ours is not a criminal process. We’re not going to take away somebody’s civil rights,” he says. “We have a whole different standard: hearsay is fine with us; we take cases that the district attorney would never take; we’re not adjudicating the law.”

Silverglate says he believes many of his clients are innocent, but “getting the board to listen is a next to impossible task.”

Michael Schneider, another lawyer who advises students who go before the Ad Board, says that as “a lawyer, but also as a parent,” he approves of the educational model.

“It often means that their ultimate resolution is not that punitive,” Schneider says. But he says that he is concerned that lawyers cannot be more involved in the Ad Board process.

Unlike the Law School’s disciplinary board, which Schneider says “takes due process quite seriously,” the Ad Board does not allow accused students to have any outside representatives.

“There is a role for lawyers and advocates to play in this process,” he says.

Biology Professor Richard M. Losick agrees that the board does not allow for many of the rights considered fundamental in the American legal system.

“Due process is a casualty of this greater mission of handling things in a educational way,” Losick says.

For example, the current Ad Board process does not allow the accused to be physically present while the accuser is giving testimony. Instead, the accused are given opportunities to respond in written statements and can hear about the information presented from their resident dean.

Though Losick agrees that the presence of the alleged offender would likely intimidate the victim, he points to Yale University’s model, in which the accused is able to listen to the testimony of the accuser through headphones in a separate room.

“It can’t be the case that we lower standards for finding out the truth and due process,” Losick says. “This is a university, of all places. Truth has to come first.”

—Staff writer Melody Y. Hu can be reached at melodyhu@fas.harvard.edu.

—Staff writer Eric P. Newcomer can be reached at newcomer@fas.harvard.edu.