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To the editors:

Your editorial (“Title IX Complaint Questionable,” Sept. 18) exhibits myopic and wishful thinking divorced from “real world” experience. My 35 years in criminal defense and civil liberties litigation give me a very different perspective.

While Harvard would do well to re-think all of its disciplinary policies and procedures (not just in sexual assault cases), which have been

notoriously deficient for both complainant and defendant for decades, the attempt to superimpose a rational screening mechanism before a case is sent to a full Administrative Board hearing is a step in the right direction. It does not unfairly disadvantage a purported victim of sexual assault or of any violation to insist on adequate threshold evidence to justify a trial. This is a step toward fair and rational justice and away from kangaroo courts.

Your suggestion that the Ad Board should be replaced in sexual assault cases by “a board specially trained in issues surrounding sexual assault” is a sure formula for depriving accused students of any semblance of fairness or rational fact-finding procedures. Such narrowly-focused boards at other universities tend to see their duty more in terms of needing to convict the accused in order to promote the “healing” of purported victims, than in terms of searching for the truth. In the real world, such specialized boards have been woeful failures because they perceive themselves more as social service agencies than as engines of justice, and civil libertarians have been trying to get them abolished for years. Consider specialized “drug courts” which see their duty as “cleaning up the streets” rather than finding facts, critically scrutinizing evidence, and doing justice. Ditto for national security courts, which rarely deny a government claim or request. President Bush wants “terrorism” cases sent to specialized anti-terror courts (so-called “military tribunals”) for a reason; he cannot be absolutely certain of a conviction in a court devoted to truth and justice rather than to a perceived political necessity.

Contrary to your suggestion that Harvard should subordinate “legal technicalities” to the need to “improve survivor services,” the needs of both justice and social service would be better met if these functions were separated. “Legal technicalities” is a rather dismissive term for the rights and procedures developed by the common law over several centuries to promote justice and rationality and to subordinate superstition and prejudice. A board devoted to determining truth and meting out fair decisions and, if necessary, punishments, should not be expected to administer “survivor services.” It is the University’s obligation to provide first-rate treatment and counseling facilities separate from the disciplinary machinery.

Harvey A. Silverglate
Boston, Mass.
Sept. 18, 2002

The writer, a partner at Silverglate & Good, is co-director of the Foundation for Individual Rights in Education.