Frequently Asked Questions
NB: Harvard's policies regarding the Ad Board (including the
corroboration rule) have substantially changed since this page was last updated. If you have any
questions about sexual assault and the disciplinary process at Harvard, you should contact the Office of
Sexual Assault Prevention and Response: their website is at http://www.fas.harvard.edu/~osapr/ and their phone
number is 617-495-9100 (staffed 24 hours a day). The following gives answers to
some of the typical questions regarding sexual assault at Harvard and
Harvard's recent change for peer-to-peer disciplinary
The following gives answers to some of the typical questions regarding sexual assault at Harvard and Harvard's recent change for peer-to-peer disciplinary cases:
1. Is sexual assault a problem at Harvard?
Yes, rape and sexual violence are both serious problems on this campus. President Larry Summers has referred to the incidence of sexual assault on this campus as a "quiet calamity". A University Health Services survey in the year 2000 found that 128 students had experienced "attempted sexual penetration" against their will, and that 52 students had experienced completed sexual penetration against their will. Furthermore, the Dept. of Justice "Victimization of College Women" report from December 2000 found that 27.7 women are raped for every 1,000 female students. It follows that at Harvard, with approximately 3,000 female undergraduates, approximately 83 rapes occur each year. This is truly a crisis situation.
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2. With so many rapes happening on campus, why did only seven cases come before the Ad Board last year?
Sexual violence is a topic that is largely silenced in our community, and the stigma attached to coming forward to press charges for sexual assault is intimidating. However, last year, seven sexual assault cases came before the Ad Board, an increase from the one or two heard each previous year, signaling a positive trend. This increase in cases before the Ad Board implied an improvement in the campus climate and in the administration's responses to victims' reports. We as a community had been moving in the right direction toward recognizing the severity and atrocity of rape. By deciding to no longer hear these cases, Harvard is retreating from any potential progress and re-silencing the issue.
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3. What happened in those seven cases last year? Did the Ad Board take any action?
In six out of the seven cases, the Ad Board took no action. In the seventh, the Ad Board asked the student to withdraw for a year for the second but not final time due to a charge of sexual assault. The old system was obviously flawed. No one is arguing that we should return to a flawed system. It is heartening that Harvard is recognizing they were dealing with these cases poorly. But it is not acceptable for the university to simply give up; instead it should figure how to better deal with such cases.
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4. Why should the Ad Board hear sexual assault cases?
Because it is effectively illegal not to. Harvard is required under Title IX to "adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints," including complaints of sexual harassment and assault. They face Office of Civil Rights sanctions, loss of federal funding, and civil liability exposure if they violate the law in this regard. One could and should argue that Harvards new approach is hardly "equitable" given that this approach is not the "adoption of" grievance procedures but rather the avoidance of grievance procedures.
Under Title IX, Harvard is required by federal law to provide equal access to education in an environment free from gender discrimination and sexual harassment. Sexual harassment is defined as "conduct sufficiently serious to deny or limit the student's ability to participate in or benefit from" the education program. As soon as Harvard becomes aware or reasonably should be aware of a sexual assault allegation, the university is required to take "prompt effective action" to eliminate the hostile environment and prevent its recurrence. Without the prompt, effective action of affirmative intervention, the university infringes upon the victim's rights to equal access to her or his education. A student does not have equal access to education if her rapist continues to live in her entryway. Harvard has a legal responsibility to put do all it can to make sure that every student is living in a safe and healthy environment, and to find out whether a persons right to equal education is being infringed upon.
Finally, Harvard has a moral obligation to hear sexual assault cases as well as a legal one. As a university responsible for the safety and well-being of its community members, Harvard has a moral responsibility to do all it can to ensure that students who perpetrate acts of sexual violence are not allowed to remain in the Harvard community.
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5. Is there any other reason why the Ad Board should hear these cases?
Yes! As explained by Assistant Dean of Coeducation Karen Avery during a sexual assault policy panel event at Take Back the Night week, Harvard has a responsibility to hear these cases because it is a private community with internal community standards of behavior. When you enter the Harvard community, you agree to abide by Harvard's rules. Harvard has a responsibility to deal with any crime on campus that violates its rules, and the Ad Board routinely handles matters that are also handled in the criminal courts (for instance, the Ad Board hears theft cases and drug offenses). Certain offenses (such as plagiarism) are deemed sufficient basis for you to lose your privilege of being a member of the Harvard community. However, the university's standards of behavior lose their value if Harvard doesn't maintain an internal means of enforcing them within the community.
Furthermore, unlike the courts, the Ad Board hearings can send a message to the campus community that Harvard will not tolerate sexual violence. Sexual assault on campus is a serious problem that deserves conversational attention among the student body with the help and encouragement of the faculty and administration. Pushing the disciplinary responsibility onto civil authorities will only help to silence the student body and encourage more assaults. By taking responsibility for violent crime on campus, the
Ad Board can fulfill its role as arbiter of behavioral and moral standards within this educational community.
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6. Are you suggesting that the victims go through the Ad Board instead of the criminal justice system?
The Coalition Against Sexual Violence absolutely supports any student who chooses to take his or her case to the criminal justice system. However, it is important that we recognize that this is the students choice. Understanding the limitations to go through the criminal justice system or the Ad Board, the student should be able to choose which
process will be most beneficial to him or her and to proceed accordingly. It is not Harvards right to make that choice for the student, by depriving him or her of the choice themselves.
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7. Why should the Ad Board have to solve the criminal justice system's inadequacies?
This question is a red herring! The Ad Board has very good reasons to do the right thing no matter what the criminal justice system is doing wrong or right.
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8. It sounds reasonable for the Ad Board to require "corroborating evidence" before agreeing to a hearing. Why isn't it?
As a general rule, when a human being reports a crime, they come to the table presumed credible. This is true for people who report robberies, purse snatching and lost dogs. We never require the people reporting these events to provide "evidence" other than their word (unless there is something unusual about that person and the police develop a reason to doubt that person' credibility). For example, Under Mass. General Law chapter 209A, you can get up to a 10-day restraining order by filling out a one-page form and speaking to a judge (with a provision that a survivor advocate can be present as well) and do not need any corroborating evidence. Why would Harvard require more simply because the allegations involve sexual violence and are reported by a woman? The legal requirement of "corroborating evidence" was on the books in most states until the 1970s, and was only required in cases of sexual assault. This was obviously discriminatory, and one of the major achievements of the womens movement was eliminating this requirement. Harvard's new policy can thus be understood as significantly retrogressive.
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9. Wont Harvard at some point need evidence in order to take action?
Of course Harvard needs evidence to take action. However, it is very important to clearly define exactly what constitutes evidence. A victims statement is evidence, as is testimony from fresh complaint witnesses (the first person the victim tells after the incident), Post-Traumatic Stress Disorder symptoms, and the accuseds statement. Anything that tends to support the truthfulness of the allegations, such as: physical evidence (bruising or bite marks, for example); witnesses to events just before or just after the assault (or during - but that would be unusual); confessions or admissions of the perpetrator made orally to friends or in notes/emails; past history of similar conduct - a pattern of unusual behavior or modus operandi; statements the victim made to others
after the assault (this might be inadmissible hearsay in a criminal courtroom but strict rules of evidence do not apply in an ad board hearing); and the behavior of the victim and assailant after the assault constitute evidence. However, because Harvard has not defined exactly what it means by "corroborating evidence" it is unclear at this point whether a situation with some but not all of these pieces of evidence would be heard.
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10. If Harvard cant have access to rape kits or forensic evidence, how are they supposed to make a finding?
Rape kits are the property of the state of Massachusetts and are available only after they have been opened in court. However, a precedent was recently set at BU for SANE nurses (the nurses who do rape kits) to testify in school disciplinary board hearings. Furthermore, a student can release his or her medical records if he or she wishes.
Most often in the cases that come before the Ad Board, however, it is not a question of whether sexual activity took place, but rather a question of consent. While rape kits may contain documentation of force such as bruising, this information could be communicated by the SANE nurse. However, once determined that sexual activity took place, a rape kit or forensic evidence may not be all that helpful or necessary.
Furthermore, not having access to a rape kit or to forensic evidence does not in any way preclude the Ad Board from being able to make a finding. Consider a case of sexual harassment or a verbal threat. There is no physical evidence, but the Ad Board must still hear such cases, and must make its decision in large part based on the credibility of the people presenting testimony. The Ad Board is constantly faced with the problem of determining the credibility of the testimonies it hears, and special training on issues of sexual violence could help the Ad Board understand what factors add to or detract from credibility in cases of sexual assault.
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11. Whats wrong with Harvards method of gathering evidence?
As both the advocate and the judge of the victims claim, Harvard's Ad Board is in the position of having to gather the evidence it will then evaluate in order to decide these cases. What counts as evidence in cases of sexual assault is by no means obvious. The lawyers who represent sexual assault victims in criminal court often spend 100 hours per case talking to people, getting specially trained Sexual Assault Nurse Examiners (SANE) to testify about physical evidence, and gathering firsthand testimony. By contrast, Harvard's new policy requires that everything to be counted as "evidence" be gathered by the Secretary to the Ad Board within a few days. The Secretary, however, as an Assistant Dean has many other duties and responsibilities that go along with his or her job, and thus may not have very much time to devote to this process. Furthermore, the Secretary has no training on sexual violence that would aid him or her in understanding what qualifies as evidence or how to procure it. The Head of the Ad Board decides whether the evidence gathered adequately corroborates the claim in order to proceed with a hearing.
Therefore, it falls to the victim, as the only party with a vested interest in getting a hearing, to gather whatever evidence she can, without expertise on where to turn for evidence and how to collect it; Harvard offers no counseling or resources to aid this endeavor. Additionally, it will be particularly difficult for the victim to build his or her own case because he or she is quite likely to be suffering from Post-Traumatic Stress Disorder immediately after the attack. The person who initially evaluates the evidence submitted is equally ignorant of the rules governing evidence in sexual assault cases, including what qualifies and how various types should be weighted.
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12. Does Harvard have to prove the accused guilty beyond a reasonable doubt?
The criminal justice systems "beyond a reasonable doubt" standard is only applicable in criminal cases because the defendant stands to lose his liberty if convicted. There is not a threatened loss of liberty in an administrative school-based setting. Thus, the standard of proof is the same as in civil court cases, a "preponderance of evidence" and not "beyond a reasonable doubt." This is true for every institution of higher education that conducts disciplinary hearings on sexual assault cases.
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13. What about due process of the accused?
Under Massachusetts state law, private universities can decided for themselves what to do in terms of 'process' and fairness--which is why millions of institutions and administrative agencies each have their own version of mini-hearings to handle internal cases. Any commendable Harvard policy should insure both the victim's and the accused's fair access to the disciplinary procedure; however, the current proposal compromises the victim's right to be free from a hostile educational environment.
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14. Isn't the new proposal's implementation of 'confidential mediation' a better way of responding to a peer-to-peer sexual assault?
No. The Office of Civil Right's current guidelines provide that while mediation may be appropriate in certain circumstances involving sexual harassment, in cases involving "alleged sexual assaults, mediation will not be appropriate even on a voluntary basis."
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15. What does the Coalition Against Sexual Violence want Harvard to do?
Sexual assault has been acknowledged as a campus-wide "calamity." Harvard must address the crisis by providing an adequate forum for cases of sexual violence to be heard.
First, any disciplinary board that hears cases of sexual assault should receive mandatory training from professionals regarding sexual violence. Such training should encompass the symptoms of Post-Traumatic Stress Disorder, common characteristics of perpetrators of sexual assault, the myths surrounding rape and sexual assault, the role of alcohol in sexual assault cases, and other aspects of sexual assault which are necessary in order to make informed judgments. A disciplinary decision should always be based upon careful consideration of evidence, and "evidence" encompasses the statements of the victim, the accused student, and any fresh complaint witnesses (the first person the victim talked to after the assault). Thus, a disciplinary board must have special training on the issue of sexual violence in order to better assess the credibility of the testimony before it.
Furthermore, Harvard should convene a group of administrators, faculty, students, and professionals in the field of sexual violence (representatives from, for example, the Boston Area Rape Crisis Center, Jane Doe Inc., The Gay Mens Domestic Violence Project and The Network/La Red) and commit significant time, energy and resources to studying this issue in order to come up with a model disciplinary policy for addressing sexual assault on campus. This is a community issue and it requires input and collaboration from the entire community in order to be adequately addressed.
Finally, Harvard should consider modeling its policy on those of other universities which have developed more effective disciplinary policies for addressing sexual violence. For example, Columbia University has a disciplinary board that receives comprehensive training on sexual violence and specializes in cases of sexual assault. Northeastern University provides another example of a policy that recognizes and responds to the unique difficulties posed by these cases. These universities, and countless others, serve as examples for Harvard to build upon and invalidate Harvards claim that it is incapable of responsibly addressing cases of sexual violence.
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16. What else can Harvard do to strengthen its response to sexual assault?
Harvard should immediately implement mandatory preventative education for all students. Hopefully, through a preventative education program developed in conjunction with experts on sexual assault, Harvard can substantially reduce the number of rapes that occur on this campus.
Harvard needs to systematically overhaul the way that the university prevents and responds to sexual assault. The university needs to implement mandatory preventative education for all students. The university also needs centralize and strengthen its resources for survivors of sexual assault so as to insure the safety and well-being of all students on campus.
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