Category Archives: Legal Analysis

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.

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.

 

 

 

 

 

 

 

The Inevitable Doubting of “Jackie” and Rolling Stone’s Sabrina Erdely

Our capacity for doubt when it comes to the accounts of victims of sexual violence- and apparently that of the world of journalism- never ceases to amaze me. Two weeks ago, a heartbreaking and deeply disturbing story emerged in Rolling Stone by reporter Sabrina Erdely. It was electrifying and remarkably popular. As of now, both the victim’s account and Erdely’s journalistic practice and ethics are being questioned.

I suppose I should not be surprised.

The primary objections to Erdely’s journalistic integrity rest on three primary foundations: 1) It’s only based on “the word of the alleged victim.” 2) Erdely made no attempt to contact the alleged perpetrators. 3) It’s just too horrible to be true.

First, as for Erdely basing her story solely on the apparently compelling, consistent and credible account of the victim, I’d remind the objectors of a legal maxim, often translated into a jury instruction in criminal cases and applicable in every U.S. jurisdiction I’m aware of: Testimony is evidence in a court of law, and if it is sufficiently compelling to the finders of fact (the jurors), then it may stand alone as the basis for a conviction. So jurors across the United States can base convictions beyond a reasonable doubt on the testimony of a single witness, but a reporter is reckless for accepting the account as the basis of a story?

Second, in terms of Erdely making no attempt to contact perpetrators, this is justified because they were not named. A fraternity was identified, but no individual perpetrators. According to Erdely, she contacted the fraternity and didn’t get very far, but what was she to do anyway? Erdely tells us that the victim, Jackie, for reasons explained, didn’t want the perpetrators she knew of to be confronted. She wanted to tell her story, not generate a mob. This is hardly indefensible; most victims of sexual violence do not report or tell anyone, let alone seek to create a public confrontation. Phi Kappa Psi is suffering scrutiny for sure. But not a single man is, whether affiliated or not. Thus, charges of “you didn’t get the other side of the story” make no sense, unless one or a group of men from the organization was willing to come forth and somehow prove a negative by either 1) accounting for the whereabouts of every member of the fraternity in the fall of 2012 or 2) describing the same encounter as consensual.

Third, in terms of the story being too ghastly, shocking, or indicative of coordinated evil on an otherwise august and civil campus to be true? I can only hope the doubters have never experienced something similar, within or without an environment like Rugby Road. An elucidating piece by Liz Seccuro, herself gang-raped at the same fraternity house 30 years ago, might allow some ugly but necessary light to penetrate the dark ignorance of some suspicious objectors. The LA Times’ Jonah Goldberg, for instance, can’t imagine how a bruised and bloodied woman could leave a darkened, loud college party without being noticed. I’d suggest he has either a limited imagination or limited experience with college parties. Politico’s Rich Lowry speculates that “the shock of [the story] led many people to recoil in horror upon the article’s release and ask, “How could this have happened at such a respectable school?” Actually, Mr. Lowry, there are legions of women (and some men) who know exactly how it could happen.

Both wonder how Jackie’s friends could have been so equivocal about reporting, and how the university could be so tepid about taking the matter to the police. Again, I can only say they have severely limited experience with the reality of sexual violence as it usually plays out in college life, and even less insight into how such violence is normally responded to. A fair debate continues about the role colleges should play in adjudicating sexual assault. But what must be understood is that the desires of victims, particularly given the gross limitations of the criminal justice system, drive the seemingly laissez-faire reactions of college administrators when rape comes to their attention. The idea is to empower, not dictate.

Doubting Jackie’s account is anyone’s prerogative. Doubts about Erdley’s reporting of it should stand on firmer ground.

 

 

 

Yes, Bill Cosby is Probably Guilty, and No, There Are No Heroes

I don’t like it either.

There’s nothing to like. There was nothing to like in realizing that Woody Allen, a filmmaker I credit for much of my worldview let alone my sense of humor, is guilty- in my opinion- of molesting his daughter. There was nothing to like in realizing that Michael Jackson, who even as a rock-n-roll obsessed teenager I believed was pure magic to watch, was guilty- in my opinion- of molesting children at his ranch near Santa Barbara.

Perhaps Bill Cosby is the most unpleasant realization yet. Cosby, after all, is more than a brilliant entertainer. He has been a symbol of hope and progress for a generation and some of its most marginalized and disenfranchised members. I was never a devotee of the Cosby Show, but I enjoyed what I saw, and even as a kid I loved the fact that star and cast developed a lasting and convincing image of a loving, educated and successful American black family.

Later, as a paternal figure and blunt critic of what he considered were negative aspects of black culture, Cosby was still heavily admired. Why? Because at bottom, he was looking out for black boys and young men, wanting what was best for them as an increasingly endangered species in a cultural and socioeconomic meat grinder.

But Cosby is almost certainly guilty of a pattern of sexual violence involving the use of his influence, his victims’ relative powerlessness and lack of life experience, the brutal competitiveness of his industry, and drugs and alcohol. By my count now, no less than 15 women have accused Cosby of similar acts under similar circumstances. There is consistency. There is a pattern. Few if any of the women who have come forward- particularly recently- stand to gain anything from their allegations. They are taking on no less than an American icon; a man of grace, class, considerable power and influence. He’s a national treasure; they know well they are contributing to a national heartbreak. They know they’ll be viciously targeted in terms of their motives, their credibility, and indeed their very sanity.

There’s a very, very large chunk of an already sad and disillusioned country that doesn’t want to believe Cosby is guilty of anything. Like many people who consider sexual violence in the very system that’s supposed to address it- the one I’ve spent a career in- they’ll find a reason to believe it’s just all a big lie. That Cosby never, over three decades against more than two dozen different, unrelated women in several states, committed any crimes.

Maybe it was a misunderstanding that just happened over and over again, altering lives along the way. Maybe it’s true that women are just really vicious as a gender and don’t have a problem falsely accusing men of among the most heinous crimes imaginable. Maybe it’s really satisfying, fun and quickly profitable to turn yourself into an instant media curiosity as a victim accusing a beloved figure of rape.

Yes, and maybe the tooth fairy will leave my IRS bill under my pillow if my latest root canal fails and I need an implant.

In fact, gravity brings rain to the ground and water is wet. In fact, if the man at the center of these allegations was an ordinary plumber, or systems analyst, or cab driver or cardiologist, the belief in his guilt would be widespread and probably correct. Legally, Cosby has been convicted of nothing and found civilly liable for nothing, and it’s correct that he remain legally unburdened. But Cosby has cultivated an image both as a public figure and at times a moral scold. He’s earned this scrutiny if nothing else. It’s awful. But so is the truth, much of the time.

The reality of heroic acts is the saving grace of our existence; well-lived lives often contain blessed aspects of it. There was, as just one example, great worth to the Cosby Show far beyond the laughs and the tender moments, and it should live on regardless of Cosby’s reputation.

But heroism itself is dangerous and inconsistent with the human condition. We’re too complex for halos; they’re best left to the saints. And the songs. And the myths.