Gertner Responds to Brodsky on University Rules for Campus Sexual Assault Justice

On January 21, we published Alexandra Brodsky's article,Fair Process, Not Criminal Process, Is the Right Way to Address Campus Sexual Assault, which included criticism of the point of view taken by Nancy Gertner in her longform essay, Sex, Lies and Justice, which appears in the Winter 2015 issue of The American Prospect magazine. Herewith, Gertner's response to Brodsky.

I applaud Alexandra Brodsky’s very thoughtful piece, although her account of my perspective is skewed. I did not suggest that campus investigations of accusations of sexual assault “look like trials,” that they be the functional equivalent of a criminal trial model. And I surely agree that procedural protections run along a sliding scale: The more serious the stakes, the harder we make it to prove a case. My point was that with the Harvard proposals [for procedures adjudicating sexual assault on campus], those “protections” slid all the way to the proverbial star chamber—an administrative proceeding, within a single office, no effective appeal, etc.

We can take the criminal trial model as a starting point, but go further to make the kinds of changes Ms. Brodsky suggested, bearing in mind the nature of the victim, the charge of Title IX, and the nature of the accusations. Her suggestion that the complaining witness be questioned using written questions that were supplied by the other side is a good one—but there has to be a hearing, a proceeding at which for both sides are represented by counsel, where the decision-maker is a board and not a single administrator, where the board not conflicted by affiliations within the university, where it is as concerned as much with truth as with the university’s funding, protections wholly lacking in the Harvard policy to which I was responding.

It is critical that this debate not be silenced by “blaming the victim” charges, on the one hand, and the old shibboleths about false accusations, on the other. Ms. Brodsky admits—as we all should—that a fair process is in the interest of everyone. The question we are both searching to answer is: What does that process look like?