More on Bias in the Implementation of Sexual Assault Laws

Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.”  The article, which criticizes the new Harvard sexual assault policy, is well worth reading.  While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well.  This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.

She discusses a case, which has some of the familiar features of these problematic cases:

A young man, a freshman at a local college . . . had sex with a classmate, his very first sexual encounter; he believed his classmate had consented. And while we can never know what went on between them, the facts—her actions, her words, the testimony of others—made her charges wholly unconvincing. A few examples: She went out of her way to invite him to her parents’ home a short time after the sex to stay for the weekend. Nine months after their sexual encounter, she claimed to have been raped and mentioned his name following the breakup of a different relationship and her hospitalization for depression. She accused Paul during a conversation with her father, but accused another male student while speaking to a classmate. Witnesses reported nothing out of the ordinary that evening, no evidence of drinking, no impairment, not even anxiety about what had occurred. Her account itself was improbable, internally inconsistent, and contradicted by the evidence and the testimony of her own classmates.

While I believed that Paul had been wrongly accused, and would be exonerated, true to my practice I declined to represent him. I asked one of my law partners to step in, and then watched with horror as the prosecution unfolded.

The atmosphere surrounding date rape had changed more dramatically than I had appreciated, at least in Massachusetts. The district attorney, though he fully understood the weaknesses of the case, felt compelled to bring the charges lest he face political repercussions, for being yet another politician ignoring a woman’s pain. Even the grand jury ignored their serious doubts about the case and indicted Paul. As I later learned from one of its members, they felt comfortable indicting Paul because I was rumored to be representing him and they assumed he would be acquitted. And the judge—with life tenure—likewise felt the pressure. The judge was critical; my partner decided to waive the jury when a program on date rape was aired on the eve of the trial. While the judge expressed his skepticism throughout the trial—every single comment of his pointed to reasonable doubt about Paul’s guilt—his verdict was “guilty.” He did not say so explicitly, but the message seemed clear. If he acquitted Paul, he would be pilloried in the press. “Judge acquits rapist,” the headlines would scream. But if he convicted Paul, no one would notice.

While Paul was convicted, the former judge represented him on appeal and he prevailed on a procedural error.  He did not have to serve a sentence, but “he was expelled from the college he had been attending” and struggled to reapply years later and finally get his degree.”

What is striking about this essay is that a former federal judge is willing to go on record claiming that the district attorney brought the charges out of fear of “political repercussions” and that the judge issued a guilty verdict for fear of being “pilloried in the press.”  I don’t know what Gertner’s evidence for these judgments is, but it seems significant that she is willing to make these claims.  At the least, it shows there is a perception that political pressure is having an undue effect on the administration of justice.  But it may mean more – it may mean that political correctness is causing innocent people to be convicted.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Kevin R. Hardwick says


    What did you make of the essay by Zoe Heller in the latest NYRB? Whatever its other merits, I thought her discussion of campus rape as an unfolding disaster for feminism was powerful. I found it harder to assess the merits of her legal arguments.

    All best,

  2. gabe says

    ” But it may mean more – it may mean that political correctness is causing innocent people to be convicted.”

    Gee, what a surprise! Rape (or accusations thereof) is a far more serious matter than simple “hate speech” (see the Benghazi video, etc etc). But have no fear our modern day moral superiors have succeeded in trivializing it by adding a proper does of *correct* thought to the matter and its prosecution. We may now prosecute even the innocent in order to advance the greater good!

    Mike: That article was a bit frightening.

  3. says

    Thank you for this article. I posted this on A site dedicated to showcasing how a lack of due process rights for the accused, is increasing false accusations of sexual misconduct on college campuses. The highly charged political climate on campuses driven by fundamental feminists, is hurting both men and women. We need a rationale, common sense approach to deal with sexual misconduct. But based on the hysteria, you’d never know that rape is at a 40 year low.


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