Earnie Grafton / Reuters

ASPEN, Colo.––Nancy Gertner, whose remarks on sentencing reform I highlighted earlier this week, is one of the Harvard law school faculty members who signed a letter objecting to the insufficient due process accorded to students accused of sexual assault. “I'm on both sides of this issue,” she said Tuesday at the Aspen Ideas Festival. “I worked for the reform of rape laws, representing women that had been raped in civil settings against colleges who hadn't provided security. But I was also a criminal defense lawyer. And I saw what false accusations could do when imprisonment was on the line. That made me much more in the middle of this issue.”

Her comments came in conversation with Caitlin Flanagan, who has thought deeply about sexual assault on campus, partly while researching her feature on fraternities.

Due process dominated the first part of their conversation. Gertner thought it was appropriate for Harvard to create an office to ensure it was complying with Title IX, but that the process created to adjudicate sexual-assault claims was flawed in these ways:

  • “There were no lawyers––no opportunity fo the accused in particular to consult anyone.”
  • “There was no hearing. Now hearings are difficult. A hearing doesn't have to be accused and accuser facing one another, her being ripped to shreds by his lawyer. It could be a situation where one side says x, one says says y, and you ask questions based on a written script––in other words, no one is directly confronted, there are questions in advance. But it's an opportunity to flesh out what happened.”
  • “There had to be an appeal to someone other than administrators in the Title IX office … an adjudicator that is not in the Title IX office, in other words, that does not have an interest in seeing that the university's funds are protected.”
  • With respect to intoxication, “the Harvard policy was explicitly uneven.” If someone had sex with a drunk victim, he was guilty of sexual assault, but if he were buzzed, “that didn't have any impact on his responsibility. We wanted to at least have a conversation about that. If both are impaired what should be done?”

Gertner says that her feminism is inextricable from her various objections to procedural unfairnesses. “Unless the process of determining who did what was fair, women's efforts would be delegitimized,” she said. “If we don't create procedures that are fair, we will buy into those attitudes. And the movement will be undermined.”

Later the conversation turned to “regretted sex” and why raising that subject at all is so fraught:

Caitlin Flanagan: What about the issue of second thoughts, regretted sex? Having gone to college a long time ago, date rape looked very different ... I went to college in the South and they were all male deans. If you went to him and said you were raped, you would almost certainly be blamed for it ... The idea would be, "You probably wanted to do it and now you're sorry you did it and so you're calling it a rape." So it's a horrible old stigma around rape victims as old as time. And yet we have to be openly talking about everything. There may be cases where [regret] plays a part. As a feminist, how do you talk about something as loaded as second thoughts?

Nancy Gertner: If I can inject any humor into it, my old fashioned view of this was––and this is something the Senate didn't know when they confirmed me as a judge, and now it's going to go viral, but whatever, I'm at a point in my life where my chances on the Supreme Court are shot––I used to call it, "windows." The phenomenon was "windows." You'd have sex with someone and you'd wake up the next morning and you wanted to jump out a window, not because you felt it was a terrible, immoral thing to do; that had changed. You just wanted to get out of there without having to deal with breakfast and have no relationship with the guy. And so jumping out the window was the fastest way out of the house. I think we have to talk about male-female relationships. Certainly there are situations––if a woman is using getting buzzed to take away her inhibitions, if a woman is doing that, she's not taking responsibility for the act. If a man is feeding her liquor it's a different issue completely.

We now have freer sex, but still in an atmosphere of social inequality for women, so that there are myriad situations in which a woman will feel compelled to say yes when she really doesn't want to, in a situation where the power is different. Not feeling comfortable saying, “I don't want to have sex now,” feeling social opprobrium if she looks that way. You can't deal with those issues easily, certainly not in the criminal justice system.

In another noteworthy exchange, they discussed what advice to give incoming college women, and agreed that they felt conflicted about the cautions they would offer:

Caitlin Flanagan: Imagine if we had a young woman right here who was about to go to college. And I said, great, Judge Gertner's here, and she's gonna give you some advice. She's a young woman we can all imagine: She's strong and she's powerful and she's gotten messages from home that she can dress however she wants when she's at college. She can have sex just for fun when she's at college. We know that there's going to be a lot of alcohol around. Maybe she hasn't been allowed to drink at home and we don't know how she's going to take to alcohol. So we bring her to Judge Gertner and say, “Can you give her a two minute talk to avoid, as best she can, sexual assault?” You can't avoid being pulled down and raped, but things in the middle of the continuum?

Gertner: That is not a good question.

Flanagan: I've been told that before!

Gertner: Here's what comes to mind. Last summer, I was on a panel where black scholars were given a hypothetical––what are you going to tell your African American son about dealing with the police and how he should dress? Each person said, “Pull up your pants, be respectful to the police,” all of the things they shouldn't have to do if we were able to freely choose who we are and interact in this world. Unfortunately, that is what I would end up telling these young women––I would end up giving them analogous advice. It's a version of the advice that I got when I was a kid. It's not empowering advice. You wish that the world was not like that. But if you're talking about advice as a parent, a professor or a judge, that is the advice that I would give. It really is an analog to that.

Flanagan: I agree with you completely. But there's been a lot of research suggesting––United Educators, the largest insurer of colleges, deals with claims for sexual assault. They decided to do a deep dive into their data from the last two years. The vast majority of their claims are from freshmen. Somehow, something happens, the experiences of being at the college teaches them something. If we could figure out how to teach them before they got there, that might change the statistic, but might force us into conversations that perpetuate rather than solve the problem.

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