Ensuring that the new GW sexual harassment policy provides sufficient due process protections isn’t just about protecting professors from being wrongfully convicted. It’s also about protecting complainants, witnesses and even panel members from being sued; and protecting free speech in classrooms. As an attorney who has probably filed and won more legal actions aimed at discrimination against women than any other University employee, I vigorously support strong sexual harassment policies. With this real life background – as compared with many who have only studied sexual harassment academically – I know that any possible defects in procedural protections can and will be seized upon by attorneys representing the accused. That’s why I always advise my clients not to skimp on such protections. If they do, some resourceful lawyer will point to such deficiencies to overturn any finding of guilty. Worse, upon learning that his client has been accused of sexual harassment, an aggressive lawyer will immediately sue the victim, any witnesses supporting the victim, and probably even the members of the panel even before any hearing begins. Don’t think it can’t happen. The U.S. Supreme Court has sanctioned it, and it occurs all the time. The threat of such suits can best be avoided by closing up any possible deficiencies in the procedural protections.
The following are only a few examples of procedural inadequacies in the proposed sexual harassment policy now before the Senate; the original proposal prepared by an ad hoc committee was far worse. If a professor is accused of punching a student; failing him for malice, plagiarism or coming to class drunk; or other very serious offenses, the professor is judged by a panel of his peers – meaning other professors. Students do not take part.
If this system is deemed necessary for all other offenses, any failure to provide less protection (e.g., a panel of four professors and one student as now adopted, or only three professors and two students, as proposed) could undermine the new sexual harassment policy. If a student or faculty member accuses another student or faculty member of sexual harassment and the testimony of the complainant and respondent are contradictory, witnesses who saw the event – even faculty and University staff – cannot be required to testify. This means that the guilty might escape or that the innocent can be wrongfully convicted, something no court is likely to tolerate.
If a student makes a verbal allegation of sexual harassment to a University official against a professor or another student, but does not wish to file a complaint, the accused is given no notice whatsoever, and therefore, no opportunity to tell his or her side of the story. However, the allegation, itself, results in a permanent written and secret record which could then be used, surreptitiously, to keep a student out of another class, to prevent a professor from teaching one or even to block a faculty or staff member’s promotion.
If a student files a totally frivolous written complaint, the professor would still be formally charged, and required to go through a complete evidentiary hearing. For instance, a professor failed to say he or she enough in class. This scenario is based upon an actual example. This situation could create serious emotional distress and leaves a black mark on the professor’s record forever even if the professor is eventually found not guilty.
Because there is no mechanism to dismiss any complaints until after a hearing has been held, including those which everyone agrees cannot possibly constitute sexual harassment even if the facts are true, mere accusations become permanent problems.
With these very real threats, the safest thing for many professors would be to avoid discussing sex and gender issues in class even when those topics are relevant to courses like law, political science, literature, etc. By the way, under the new policy, students can also be brought up on charges for what they say in class, like that women sometimes lie about rape, or that men are genetically predisposed to rape and subject to various penalties, including expulsion.
In summary, then, any failure to provide sufficient due process protections could lead to a court throwing out a finding of guilty because the procedural protections were insufficient. Some potential reasons for this action by the judge include there being a different composition of the panel for sexual harassment offenses than for racial or religious harassment; or a multitude of other serious offenses; or that the accused was not able to get witnesses who could have exonerated him though their testimony. Such weaknesses could also provide the basis for lawsuits against the complainant, any supporting witnesses or even panel members – lawsuits which might not be dismissed if a judge feels that GW’s procedures do not provide sufficient protections for the accused.
Finally, the fear of being forced to go through a full evidentiary hearing, even for a totally frivolous charge which could not possibly amount to sexual harassment, could well lead both students and faculty to avoid controversial discussions regarding gender even where directly relevant to the course material, something which strikes at the heart of free speech and academic freedom.
-The writer is a law professor.