Last November, Halley publicly critiqued Harvard’s new policy for handling accusations of sexual assault. Under pressure from the federal Office of Civil Rights, Harvard and many other schools, Halley charged, felt
immense pressure to decide flimsy, weak, doubtful and difficult cases favorably to complainants, or face the wrath of a government agency that can cut off all federal funding to the entire institution.
In her commentary in the Harvard Law Review, Halley takes her argument a step further. How can we decide cases of alleged sexual assault, Halley asks, when policy is decided more by emotion than by reason? As she asks, new policies at many schools include
a commitment to the idea that women should not and do not bear any responsibility for the bad things that happen to them when they are voluntarily drunk, stoned, or both. This commitment cuts women off — in theory and in application — from assuming agency about their own lives. Since when was that a feminist idea?
More disturbing, Halley raises the obvious but horrifying parallel. In America’s brutal history, there is plenty of precedent for what can happen when those accused of sexual assault have no legal right to defend themselves. We call it lynching. As a new report from the Equal Justice Initiative makes painfully clear, America’s white population often brutalized and murdered African American men on the merest whiff of accusations.
Is it hyperbole to suggest that today’s campus-rape rules threaten to bring back such lynch-mob mentalities? The danger, Professor Halley suggests, is that colleges are under intense pressure to convict someone accused of sexual assault, even if there is not enough evidence to do so. She cites a widely publicized case from Hobart and William Smith Colleges. In that case, the college decided that it did not have enough evidence to charge anyone with sexual assault, in spite of ample evidence that a rape had occurred.
Halley does not suggest that the victim was lying or making it up. But she worries that colleges will feel pressure to convict someone in such cases, even when there is not enough evidence to do so. In this case, Halley argues that the rush to bring justice for the victim blinds us to the rights of the accused. As she puts it,
the Colleges had to assign blame to one or more of their students despite their complete lack of direct evidence about which of them actually deserved it.
Halley wonders if such policies will bring lynching back. She writes,
American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women that become reverse scandals when it is revealed that the accused men were not wrongdoers at all.
These are difficult charges to hear, much less evaluate. After all, the more obvious moral challenge facing colleges is not the violent history of lynching, but the shameful history of ignoring the pleas of victims of sexual assault. For decades, universities—including the evangelical schools I’m studying these days—covered up campus rape in an ill-conceived quest to preserve their reputations as safe havens for young people.
Nevertheless, these are vital questions we must ask. Do Professor Halley’s worries have merit? Are colleges these days—in an understandable rush to correct past abuses—heading too far in the other direction? Must the rights of the accused be protected with the same vigor as the rights of the accuser?