What Harvard Law Professors can Learn From Stanford Undergrads

Last July, Harvard University adapted both a new policy on sexual harassment and a new set of investigatory procedures to respond to it. Not surprisingly, both policy and procedures are designed to ensure compliance (and general harmony) with Title IX of the U.S. Code. IX prohibits discrimination and ensures access to educational programs that receive federal funding.

Sexual violence and harassment implicates Title IX in that federally-funded schools must preserve educational environments that are as free as humanly possible from these things. That’s the bottom line. Harvard is pursuing that bottom line surely in the interest of doing what’s right as well as in preserving an important funding stream. Good on them.

Regardless, a few months ago, 28 Harvard Law School professors signed a statement published in the Boston Globe expressing “strong objections” to the new policy and procedures. Indeed, the principal author has stated her belief that current federal efforts in this area will be looked back on as a “moment of madness.”

My legal betters seem to have objections in two major areas: First, they bemoan what they see as a lack of due process protections for students accused of violating school policy based on Title IX protections. They see an adjudication system “overwhelmingly stacked” against accused students. Second, they believe Harvard has gone too far in defining offending conduct under their Title IX-based disciplinary policy, apparently believing it threatens things like “individual relationship autonomy.”

I’ve carefully reviewed the new procedures, and while I can’t go point by point in this space as to why they are basically reasonable, suffice to say I don’t see anything that should raise an alarm as if Harvard has decided to do away with anything resembling American legal tradition in favor of a politically-correct mob. Regardless, reasonable minds can differ on whether an adjudication system for student misconduct provides enough procedural safeguards. Fine.

It’s their second area of objection (the new definition of impermissible sexual harassment) that I find somewhere between mystifying and dangerously naïve. They apparently object- at least in some way- to Harvard’s new prohibitions against sexual conduct with a person “so impaired or incapacitated as to be incapable of requesting or inviting the conduct…provided the Respondent knew or should have known about…” such a condition.

That’s right. To a united legal mind of 28 in arguably America’s finest law school, this clear prohibition is somehow problematic because of “complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”

With due deference to this brilliant group, they seem to know precious little about 1) sexual violence as it plays out when intoxicants are a weapon of offenders, and 2) the reality of how victims perceive their own victimization in most cases.

It’s a fact that intoxicants, particularly but not exclusively alcohol, are often used by sexually predatory people to disable victims, ensure destruction of their credibility, create confusion and doubt due to memory loss, etc., and also because a sad majority of people (like the Harvard Law 28) are blind to this kind of behavior, believing it instead to be some kind of misunderstanding. Predators depend on this naivety when it comes to what they do. They always have.

But it’s a far more crucial fact that the vast majority of women (and men) who are clearly sexually violated- particularly when voluntarily intoxicated themselves- never report sexual assault in the first place, let alone cases of what is likely college-age confusion or awkwardness.

Why? Because in the great majority of cases, the truly victimized do exactly what thinkers like the HL28 want them to do: Blame “confusion.” Blame college inexperience. Respect “relationship autonomy.” But above all, blame yourself.

So might a new (and utterly reasonable) definition of sexual harassment lead to a floodgate of aggrieved people “crying rape?” Will “madness” from the government then subject legions of inoffensive young men to academic ruin?

No. Both notions are silly. Yet I’m amazed at how many otherwise brilliant people believe them.

The HL28 could learn something from a recent and brilliant op-ed by two undergrads at Stanford, describing very similar efforts that will be undertaken at that equally august institution. Contrasted to the hand-wringing of the HL28, it’s genius.

Young White Privilege, a Camera, and an Apparently Good Cop

I teach a sociology class called “Policing and Society” at a state college in Northern New Jersey, not far from where I live in New York City. My class is almost evenly split between white, African-American and Latino students. Some come from the ghettos of Paterson and Camden, some from wealthy Bergen County suburbs. Most want jobs in law enforcement.

Not surprisingly, my students have been sharing with me videos of police interactions captured by bystanders or police-issued body and dash cameras all semester long. Most depict suspected misconduct and abuse, but a few portray police men and women doing the right thing under remarkably stressful circumstances.

There’s one that’s apparently gone viral over Facebook (shown here from Youtube) that was brought to my attention earlier this week. We watched it together, all of us, and it sparked a discussion I was grateful to have; it was was probably the most honest and open one we’ve had all semester around this difficult topic.

Very simply, it captures the eviction of a group of young people (and the eventual, lawful arrest of one of them) from an IHOP by a Fort Wayne, Indiana, policeman. By the opinion of most who have viewed it, attempts by the amateur videographer to capture “police brutality” and improper use of force have backfired. The officer involved instead appears remarkably restrained and professional despite behavior that can only be called reprehensible and most certainly criminal.

The larger point the video made to me, though, and that my class seemed to agree with (across racial and cultural lines) is this: If you don’t believe that young, white kids- from what appear to be at least middle class backgrounds- expect to be treated differently by police and are more emboldened to challenge their authority, you’re not living in the real world.

Of course, what’s depicted is only what was captured in one place on one night. Still, there is the undeniable hint of a microcosm here in terms of what these youth regularly believe is not only survivable, but not even reckless. In some way, in their minds, it’s actually appropriate. Don’t like what a cop is telling you to do? Scream in his face and dare him to arrest you. Have a friend follow along with a phone camera, demanding explanations from him from a couple of feet away as he tries to do his job in the face of despicable, taunting vulgarity and a repeated refusal to cooperate. Why not? What’s the worse that’ll happen?

Then contrast that with the young, African-American men in the same video, at just before the 1:00 mark, who look on silently and are utterly non-confrontational. There’s no evidence they were involved with the offending crowd in any way to begin with, and also none that the responding officer would have treated them any differently. Regardless, whatever their intentions were or their attitudes toward police are, they kept those things to themselves.

Why? Because they’re not stupid.

Neither are my students.

Injecting Reality Into Nonsense: PCAR & the Letourneau/Faulaau Interview

The Pennsylvania Coalition Against Rape has done a great service to sanity in releasing an edited, non-sanitized version of what ABC’s press release on Barbara Walters’ interview with Mary Letourneau and Villi Faulaau should have looked like from the start.

PCAR’s unblinking release speaks for itself, but among the idiocies that it should help to contradict is the notion that Letourneau at this point really should be forgiven, since she’s been married to Faulaau for 10 years now- a longer period than many marriages in non-criminal circumstances.

Here’s a thought: Faulaau is likely still in a marriage with Letourneau because he was raped and broken at a remarkably tender age. His bouts with depression and substance are only a part of the testimony to this. His entire life was truncated and derailed to a degree none of us will ever fully know. This was done by Letourneau, willingly and repeatedly, until he was trapped, largely stripped of his identity, and lost.

Letourneau destroyed him. The fact that she’s “kept” him so far makes her no less evil, destructive, and selfish.

 

“Couch-Surfing” Teenager Sexually Victimized: Sadly, Not Surprising

I wish I could say I was surprised. In 2013 I wrote a piece on what I believe are the inherent dangers associated with the “couch surfing” phenomenon, and sadly why I do not believe that the organization (Couchsurfing is described as a Certified B Corporation) has sufficient procedures or even warnings in place to prevent the kind of abuse that can occur under its rubric.

Next month, an Italian policeman, Dino Maglio, will go on trial for the rape of an Australian woman 16 years-old at the time of the crime when she was staying at his home on a visit to Italy. Her outcry and the resulting case has led other victims of the same man to come forward as well. It seems apparent that Maglio had an effective cover within the couch surfing world as a policeman, among other things.

Unfortunately, he also had an effective platform in Couchsurfing itself, and in its (in my estimation) “kind of feel your way” approach to judging the safety of a situation from afar, and then in the moment.

I’m still confident that couch surfing is a harmless and indeed quite positive experience for the great majority of those who utilize it. Regardless, one life-changing crime is too many, and it appears that Couchsurfing is still far too vulnerable to infiltration by offenders who probably find it remarkably convenient and victim-rich.

In my view, Couchsurfing enthusiasts and the leaders of the organization need to take a hard look at how the safety of a particular situation can be and/or is evaluated by typical users, and how users can better ensure against inevitable abuse.

I don’t claim to have many answers, but I’ll offer this hint: Communication, no matter how robust, with the host, and even face-to-face conversation before unrolling a sleeping bag, will not be enough.

 

Far More than “He-said, She-said” in Latest NFL Rape Case

The rape charges filed earlier this month in Indianapolis against Colts special teams player Joshua McNary are, sadly, only the latest accusations of violence against women- sexual violence, in this case- against members of the National Football League.

McNary appeared in court for an initial hearing last week and pleaded not guilty, his attorney emphatically denying the charges. This is, of course, appropriate and generally a good defense attorney’s job when the case appears to be one that will likely 1) attract media and public speculation and 2) go to the mats in a jury trial.

Like most, I know only what’s been reported and would take no firm stance about McNary’s guilt or how the case will likely play out. I do know, as I’ve stated repeatedly in this space and many others, that very few rape allegations are false at their core, and that rape is grossly underreported, not something tossed around for vengeance, vanity or money, despite the endless droning of the paranoid and/or finger-wagging set. Regardless, that’s as far as I’d go with any factual speculation.

At least one quoted expert though, former prosecutor and current defense attorney Jack Crawford, grossly oversimplified, by all accounts so far at least, what’s likely to be seen in evidence.

In short, he referred to it as a “he-said, she- said” case, a term I’ve come to despise at the same time I’ve simply gotten used to it. It implies, of course, that the criminal charges rest only on the word of the complainant, the word of whom will be challenged by the defendant, leaving the jury in a position of deciding which one to believe. Although a popular characterization of many sexual assault cases, “he-said, she-said” is literally never accurate. I was taught many things by my mentor and former boss Victor Vieth, and among the most important was that corroboration, in some form, is always possible to find and then translate into evidence if the investigators and prosecution team are diligent and creative enough.

Rarely does corroborating evidence constitute a smoking gun, of course; far more often it’s just a simple fact that can be independently proven, and then offered as evidence when it’s shown to support the prosecution’s theory of the case. In tandem with many others, though, it can help a justice-minded but aggressive prosecutor build and then prove a case that a lesser attorney would probably just avoid. Indeed, prosecutors in my experience are often more likely to falsely tag cases as “he-said, she-said” (and thus un-triable) than many on the defense side.

What’s particularly silly about Crawford’s characterization, though, is how inapposite it appears to be in this particular case. The victim here reported within hours of being assaulted. This allowed physical evidence to be taken and an acute examination to be done, both of which will likely favor the prosecution. The quick report also allowed detectives to find McNary and preserve evidence from both the crime scene and his body before either could be disturbed; this evidence also looks promising for the prosecution. Interestingly, McNary appears to have preserved bedding himself for the responders, telling them when they arrived that he expected them. It’s hard to say how that will be used by either side, but it arguably shows consciousness of guilt on McNary’s part.

Crawford certainly isn’t all wrong. He’s correct that the case will not be an easy one for the prosecution to prove. He’s right that intoxication on the part of both parties will complicate matters and likely cut against the credibility of the complainant. He’s probably also right that consent, ultimately, is what the jury will have to decide, since sexual intercourse between the two will be easily established if not outright admitted by the defense.

But he’s wrong to suggest that this case comes down to nothing but the testimony and credibility of the two people at the center of it. A creative, diligent prosecution team, backed with a good investigation, has a better shot at proving this case than Crawford suggests. I’m willing to bet that’s the case, in Marion County, Indiana.