There has been much discussion over the past year about the ways that universities adjudicate accusations of sexual assault. Much of that discussion is constructive and will ultimately lead to better, fairer policies for everyone involved. Unfortunately, a group of 19 Harvard Law professors have waded into the debate and potentially derailed the progress their university has made toward creating a fair and just process.
On November 11, this group of professors issued a press release highly critical of the documentary The Hunting Ground. The release challenges, without any evidentiary support, the film's description of the indifference that American colleges and universities have exhibited regarding the rampant problem of campus sexual assault. In particular, they take issue with the film's portrayal of a case involving the sexual assault of a female Harvard Law student, Kamilah Willingham, and publicly offer support for her assailant, Brandon Winston, who was a fellow student.
As a lawyer who has represented hundreds of sexual abuse and sexual assault victims, I find the conduct of these law professors to be reprehensible, but not atypical of those who are more concerned about protecting their reputations, and the reputation of their institution, than the safety and welfare of their students. It's time to set the record straight.
In January 2011, Willingham reported to Harvard Law that Winston sexually assaulted her and her friend while they were incapacitated. Harvard Law hired an Independent Fact Finder (an attorney), who after an extensive investigation found Willingham credible and her assailant Winston not credible. The Harvard Law Administrative Board heard the case and found Winston had committed sexual assault against both Willingham and her friend and recommended the sanction of dismission, which is essentially expulsion with the option to reapply.
Winston appealed to a Hearing Officer, who upheld the Administrative Board's decision.
The case then went to the Harvard Law faculty, which included many of the 19 professors, who overturned the findings of the three previous Harvard Law entities, using a standard later found to be in violation of Title IX law. This review was kept so secretive that Harvard Law refused to give Willingham the names of who voted, the vote count, or a transcript of the review, only saying they reversed because of lack of "substantial evidence."
What the 19 professors don't disclose is that the process they were involved in was so flawed that Harvard Law was investigated by the Department of Education, which found the process biased in favor of the accused. As a result, Harvard Law completely changed its adjudicative process, and no longer allows the Harvard Law faculty to make the final decision. Under the new and fairer process, it is almost certain that the sanction would have been upheld.
But it gets worse. In an effort to defend their involvement in a flawed process and protect their reputation, the 19 professors continue to litigate the case in public, even going so far as assisting in building a very slick website for Brandon Winston, complete with his baby picture in an obvious ploy for sympathy. The fact that these same professors who were directly involved in the school's flawed review process are publicly voicing support for the assailant is, at a minimum, unprofessional, if not outright unethical. Imagine the chilling effect this type of conduct will have on other Harvard law school students who have been sexually assaulted. How can they ever trust in the integrity of the university's adjudication process if they know that their professors may retaliate publicly against the victim?
It is completely inappropriate for those who stood in final judgment of a case to publicly attack one side and vehemently support another after they have rendered their decision, no matter how much they might disagree with criticism of that decision. Imagine if our judges lashed out every time the media questioned their decision? These are law professors who are supposed to be training young lawyers on the importance of objectivity, factual accuracy, and respect for differing points of view. Instead, the vitriol in their attack on the filmmakers, and by extension Willingham, is unbecoming of the faculty of one of the most venerated schools of law.