A new article in the Harvard Law Review argues the university’s new sexual assault policy makes it too easy to believe victims and automatically discredit those who are accused of sexual misconduct.
In an article called “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard law professor Janet Halley identifies scenarios that could potentially lead to biased hearings against accused students.
As awareness of rape on campus has grown, many schools have changed their rules so there’s a lower burden of proof needed to find students “responsible” for sexual assault.
In one section, Halley describes the document the university uses to train her Harvard Law colleagues who adjudicate student complaints. The training, she writes, is primarily based on guidelines from the Department of Education’s Office of Civil Rights and the Harvard Policy and Procedures.
That training is “100% aimed to convince [faculty] to believe complainants, precisely when they seem unreliable and incoherent,” according to Halley.
Here’s how Halley describes the document, based on a PowerPoint presentation given to faculty who hear sexual misconduct complaints:
The take-away lesson of these pages is that a victim of sexual assault may experience trauma, which in turn causes neurological changes, which in turn can result in “tonic immobility.” Tonic immobility, in turn, can cause the victim to appear incoherent and to have emotional swings, memory fragmentation, and “flat affect.” Her story “may come out fragmented or ‘sketchy,'” and she can be “[m]isinterpreted as being cavalier about [the event] or lying.” These problems, in turn, can cause police and sexual harassment investigators to dismiss serious claims, tragically because of symptoms of the trauma itself.
While acknowledging the importance of having this kind of language included in sexual misconduct training, Halley questions what exactly it proves. “Surely not a claim that, because a complainant appears incoherent and unreliable, she has been assaulted,” the law professor writes.
In December, the Department of Education announced that Harvard University and its law school violated Title IX by having sexual harassment and sexual assault policies that did not comply with federal standards. Harvard has since updated its sexual misconduct policies.
Harvard law professor Elizabeth Bartholet has also criticised the university’s sexual assault policies, writing in a statement to Business Insider in January that students may now be potentially punished for “drunk sex,” due to the inclusion of language prohibiting certain sexual activity while incapacitated or inhibited.
“This means that students who engage in sexual touching or sexual intercourse while having a few drinks are all at risk of being held guilty of the very serious charges of sexual assault and rape, regardless of their understanding at the time that they mutually consented to such activity,” Bartholet writes.
The updated Harvard policies have come under attack from both students and faculty. Twenty-eight current and former Harvard Law School professors — including Halley and Bartholet — wrote an op-ed in The Boston Globe in October calling on the university to withdraw its new sexual harassment and misconduct policy.
“[W]e find the new sexual harassment policy inconsistent with many of the most basic principles we teach,” the letter wrote.
Former star Yale University quarterback — and current Harvard Law student — Patrick Witt also came out against Harvard’s new sexual assault policy in a separate Boston Globe op-ed, writing that his life was “nearly ruined” by a similar policy at Yale.
We reached out to Harvard for comment and will update this post if we hear back.
NOW WATCH: Briefing videos
Business Insider Emails & Alerts
Site highlights each day to your inbox.