Five harsh realities of campus sexual assault from a feminist former judge

By Ashe Schow | March 14, 2015 | 9:00 am

Nancy Gertner's feminist bona fides can hardly be questioned. A college friend of Bill and Hillary Clinton, Gertner is well known for her staunch defense of women in court.

She has won prestigious awards for her women's advocacy, and called her memoirs In Defense of Women: Memoirs of an Unrepentant Advocate. A liberal in good standing, she was appointed to the U.S. District Court for the District of Massachusetts by President Clinton at the recommendation of Sens. Ted Kennedy and John Kerry.

So what made such a staunch feminist advocate think twice about the current climate revolving around sexual assault on college campuses? It happened when her law firm took the case of a young man Gertner believed to be wrongly accused of rape even though a grand jury indicted him. In the case Gertner described, the man was accused 10 months after the encounter by a woman whose story constantly changed and was contradicted by witnesses.

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Gertner was one of the 28 current and former Harvard Law professors who signed a letter against the school's new sexual assault policy.

During a panel Thursday discussing campus sexual assault and Gertner's recent article in the American Prospect, the former federal judge discussed some sensitive topics that, had a man such as Washington Post author George Will said them, would have been excoriated.

Alas, Gertner's feminist credentials allowed her to address some issues activists have not been so open to discussing.

1. Investigating an accuser's claim is not victim-blaming

Contrary to what some of the loudest feminist voices of today are saying, questioning an accuser's account of sexual assault is not in itself victim-blaming.

"We've filled the airwaves with discussions that are more about sound bites than reality. So on the one hand it is right that we shouldn't be blaming the victim, on the other hand blaming the victim cannot mean you don't say she's lying," Gertner said. "Blaming the victim can't mean that there are inconsistencies in her account, [that] there are things that she is saying which are not true to the other witnesses."

"That's about process, not blaming the victim," she added.

2. Not all sexual assaults are created equal

In the current climate, an accused student is just as much a "rapist" if he forcibly held down a stranger or if both students misread social cues. Gertner explained that colleges and universities have to learn to figure out whether the accusation is justified or a regretted encounter.

"There's a difference between forcible sex, sex with someone who's unconscious, sex [where] the person feels remorse after sex, the person who thinks she made a bad decision, the person who wakes up – as in the case that I have described – 10 months later and said 'Boy, that was pretty yucky,'" Gertner said. "That can't be the subject of a disciplinary proceeding and we have to figure out a fair process that enables us to sort out one another."

Later in the panel, Gertner described the "continuum of conduct," where at one end there is "clearly criminal, predator violence" and the other end "everyone was drunk."

For the latter, Gertner said, "There is no way the criminal justice system is going to take that case, and perhaps we shouldn't be either, but that's part of the definition we're dealing with."

3. The alcohol element cannot be ignored

When we talk about alcohol on college campuses in regards to consent, it invariably comes down to the accuser (usually a woman) being absolved of responsibility to give (and take) consent and the accused (usually a man) still being responsible for obtaining consent as well as monitoring the accuser's alcohol intake.

"We have to deal with alcohol," Gertner said. "The Harvard policy treated…sex under impairment as rape. Not even incapacitation, but impairment. If she was drunk and impaired – not unconscious but impaired – it could be rape. But his impairment didn't count."

Gertner further explained that Harvard's policy allows "a woman who willingly gets drunk" to make an accusation because she's "not responsible for what happens." She also explained that these kinds of policies "take away a woman's agencies and responsibility."

Gertner said this, and no one in the audience made a sound. There was no indication that anyone was outraged by this (or anything Gertner said). Contrast that with the vilification that those who aren't described as feminists get.

4. The system is inherently biased against the accused

"The accuser typically has the resources of the Title IX office behind her," Gertner said. "A man who is accused, unless the university provides counsel, doesn't have very much at all."

The lack of counsel provided to the accused results in low-income students "being disadvantaged," she added.

Gertner also mentioned that in today's climate, "If you find for the man, you're bound to be criticized, if you find for the woman you are not."

At least as far as the media goes. We know that men have been suing their universities for being denied due process in their campus hearings, but ultimately, the outrage brigade comes out if a man is found not responsible (see: Paul Nungesser).

5. The current process has to be changed

With more men suing their universities, it's time to rethink the current process, which rewards schools for finding men responsible and punishes them for not. Gertner said it is important for women to want a fair process so that accusers are not automatically disbelieved.

"The women's movement concern about sexual assault is not addressed if the process of adjudication doesn't appear fair," Gertner said. "And we see from the press what happens when there is even a hint of illegitimacy in the process."

"Attitudes don't change in three or four years, and the danger here is that if we don't provide a legitimate process, benighted attitudes that I grew up with – the assumption that women typically lie about sexual issues – are lurking beneath the surface," she added. "So I saw it as in the women's movement's interest to come up with a more legitimate process."