TO THE HARVARD LAW 19: DO BETTER

To: Elizabeth Bartholet, Scott Brewer, Charles Donahue, Jr., Nancy Gertner, Janet Halley, Bruce L. Hay, Philip B. Heymann, David W. Kennedy, Duncan M. Kennedy, Randall L. Kennedy, Charles J. Ogletree, Jr., Richard D. Parker, J. Mark Ramseyer, David Rosenberg, Lewis D. Sargentich, David L. Shapiro, Henry J. Steiner, Jeannie C. Suk, Laurence H. Tribe

There was no mutuality that night. The sense of entitlement to grope, mount, fondle, even penetrate — to any extent — any female body within reach that has a pulse, is not something that anyone should accept as reasonable, non-abusive, excusable behavior, even for a drunk guy. When this sense of entitlement is demonstrated, admittedly acted upon, and defended as such, it is clear that the person responsible, as well as the community he belongs to, has a serious problem.

This is from my statement to Harvard Law School’s Administrative Board on September 19, 2011. Ten months earlier, a friend and I were sexually assaulted by one of my classmates at Harvard Law School. The Administrative Board found, by clear and convincing evidence, after months of investigation and a day-long hearing, that Brandon Winston had sexually assaulted me and my friend while we were incapable of consenting. I remember the incredible feeling of relief that washed over me when I learned of their decision: Harvard Law was a school I could be proud of, where I was valued and standards went beyond rape myths and “boys will be boys.”

It would never have occurred to me that five years later, we would be here: You, as members of the Harvard Law School faculty, would have revoked that decision and become a vocal minority very publicly doubling down on the side of the man who assaulted me and my friend.

You — my former professors — have joined together to silence and discredit my story of sexual assault and its institutional mishandling. Your attacks promote myths about sexual assault that allow a loathsome rape culture to thrive on our campuses and across our country. You omit key facts of the case, including the perpetrator, Brandon Winston’s own statements, to advance your own false narrative in his defense under the guise of racial justice.

Even while claiming without evidence that Black men are disproportionately and wrongly implicated in on-campus sexual assault proceedings, you — charged with shaping some of the brightest legal minds in the country — ignore well-established research on the disproportionate rate at which women of color are sexually assaulted. It is for these women that I write — the ones who will be sexually violated at Harvard Law School without accountability if you do not do better by them than you did by me, and for all of the sidelined victims whose pain is mocked, disparaged, or worse, ignored.

Endorsing Mythology

I don’t know what evolved version of his story my perpetrator sold you, but I’m sure the truth was cloaked in sensational, classic rape myths. It must have been compelling enough for you to overlook what an Independent Fact Finder, an Administrative Board that included your peers, the supplemental Hearing Officer, the Cambridge police, and the Middlesex District Attorney saw as persuasive evidence that Brandon Winston committed multiple sexual assaults that night.

What I do know is that you are not unbiased, erudite commentators on this case. Not one of you was among the professors who sat on the Ad Board and decided, after extensive evidence and confronting me and many other witnesses, that Brandon committed sexual assault. You did not hear the evidence. However, I assume that most, if not all of you were among those who decided that those findings were invalid based on your secretive process, a process I criticized in The Hunting Ground and in a successful Title IX complaint. Your open letters, press releases, and the website you promote reek of retaliation and forsaken arrogance.

The Office of Civil Rights found the secret process by which you allowed the man you affectionately refer to as “our student Brandon” to be re-admitted to Harvard Law to be unequal, unfairly favoring the accused. I was not invited to offer additional testimony or evidence to the faculty, as Brandon was, nor was I even notified of any subsequent process until after the fact. I can only wonder whether Brandon, who did have notice and an opportunity to participate, appealed to any of you with his mythologized version of events before you voted to overturn the multiple findings that he was responsible for sexually assaulting us. None of you asked to discuss this case with me.

The message you’re sending is clear: don’t bother reporting unless you have a written confession, a witness, and — oh, wait, we had those things! This raises a great question, actually: what would it take for you to believe a sexual assault survivor?

I have given the same account, consistently, since the beginning; Brandon has changed his story several times.

Excerpt from 1/15/2011 text message conversation with Brandon Winston, as read into evidence at his criminal trial:

Kamilah: Hahaha… but for realz… did you put your p in her v?
Brandon: No!! I passed out after some minor touchings no more than what you and I were doing a finger briefly in the v at most Tell her not to worry!

Excerpt from 1/17/2011 instant message conversation:

I don’t think you care about Brandon Winston, nor do I believe you care about the persecution of Black men for false rape charges. If you did, you wouldn’t be going out of your way to raise the profile of one who admitted to sexual assault. I did not publicly name him outside of court — he was first named by a victim-blaming columnist who sought to discredit me. And you continue to bizarrely draw attention to him as you chase the spotlight, basking in his supposed victimization via exposure — exposure you are feeding as you opportunistically stoke your own.

Smoke and Mirrors a/k/a Straw Men and Shiny Red Herrings

In your press release, you wrote: “There was never any evidence that Mr. Winston used force, nor were there even any charges that he used force.”

Are you familiar with this case? Did you review the extensive fact-finding report, or even my complaint, before voting to overturn your colleagues’ finding in our favor? As some of your students are thankfully aware, bruises and broken bones are not actually necessary to establish that a sexual assault occurred. Unconsciousness and incapacitation are widely recognized as circumstances indicating the absence of consent to engage in sexual activity. Such circumstances tend to render the use of “force” moot.

In most cases of so-called acquaintance rape, perpetrators do not rely on force so much as exploit their position of trust. In our case, focus on the absence of force fits well with my perpetrator’s suggestions that we had a prior romantic relationship. There was no romance between us and no desire for any on my part. That insinuation summons the myths that women lie about rape out of disappointment and jealousy, or that being friendly with a man means you secretly want to be raped by him.

You also wrote that “No evidence whatsoever was introduced at trial that he was the one responsible for the inebriated state of the women who are portrayed in the film as his victims.” What is that supposed to mean? If a man finds himself with two intoxicated, unconscious women friends, their bodies are fair game and he shouldn’t be held responsible for treating them as such? That one loses the right to be treated as anything more than a sex doll the moment she drops her guard?

I drank that night, and did a small amount of cocaine hours before the assault. I’m not proud of it, but I refuse to apologize or be ashamed because I would have been perfectly safe had there not been a predator in the room.

I did not say, and it was never alleged in the HLS hearing or in court or in the film, that he was responsible for our state, though the possibility that we were drugged certainly crossed our minds. We will never know, but people who are unconscious, or who are so intoxicated that all they can manage to do is mumble incoherently, are not asking to be touched sexually. If you believe that people should not refrain from undressing and probing the bodies of unconscious peers, you have no business teaching law. The notion is insulting to the man you defend, as well as anyone who prefers not to be fingered while they’re asleep.

In accusing me of a conscious set-up by having a used condom tested for DNA, you seem to believe that I am at once witty, cunning, and desperately stupid. How little you must think of me and your colleagues and law enforcement who believed me. Actually, I’ve come to think you do likely believe me. You just don’t think that what he did is worth the consequences. So which is worse: not being believed or being believed but being valued so little it doesn’t matter?

[R]ace in the hole

Like the absence of “force” and evidence that Brandon was responsible for our intoxication, your trotting out of historical biases against Black men to silence and disregard the victimization of this Black woman is another straw man. You should be deeply ashamed of yourselves for using such an important issue in such a manipulative way.

In describing the refusal of a mostly-white grand jury to recognize my victimization, you said, “It is of course highly unusual for a grand jury to reject a prosecutor’s request to indict.” Is this the norm you cited every time a grand jury refused to indict the badge-wielding murderers of Black men last year, even when there were multiple witnesses and video evidence? Do you insist on the infallibility of the criminal justice system each time it disregards the lives of Black men and their families, refusing to acknowledge their victimization?

Indeed, when the time comes to address the role of race on campus, instead of the passionate concern I see in your aggressive defense of Brandon Winston, most of you have been silent, if not dismissive. Randall Kennedy, you recently condescendingly criticized the “inflated sense of victimization” among Black students pushing for change at Harvard. Janet Halley, you proudly tout your position as Royall Professor of Law — an honor memorializing the Royall family’s generous use of riches gained from the labor of enslaved Black people. Jeannie Suk, you’ve speculated without evidence that Black men are disproportionately accused of sexual assault in schools, while turning a blind eye to well-established research on the disproportionate rate at which women of color are subjected to sexual assault. If you are concerned with the intersection of race and sexual assault, why not start there?

As to how grand juries respond to most cases of alleged sexual assault or rape: they don’t, because these cases are rarely brought before them. In most stereotypical “he said, she said” cases, “she” usually says nothing; she decides not to report her sexual assault. When she does, the script is nothing nuanced: She says “I was raped;” he says, “It was consensual, she’s a lying slut.” Because rapes do not always leave evidence of bruises and broken bones (and even when they do, he says “she’s a lying slut who likes it rough”) and because there are rarely witnesses, prosecutors seldom press charges in these “impossible-to-prove” cases. They’re impossible to prove because they require believing the victim beyond a reasonable doubt. In a “he said, she said,” there will almost always be “reasonable” doubt so long as reasonableness means the rape myth that women lie about sex and believing her over him is considered unreasonable.

In Brandon’s case, the grand jury returned indictments only for the crimes that had an additional witness (me) and his written and recorded confessions. The one resulting conviction was for touching my friend’s breast without her consent — there was no “reasonable” doubt because I witnessed it and he described this crime several times in his own words. In the end, the jury compromised and recognized only the lesser-included offense of simple or “non-sexual” assault. Although the crime of assault is by definition a non-consensual and offensive touching, and he was clearly touching her breast in a sexual way, they apparently were not convinced of the seriousness of this action, which was originally a felony charge. It should not be surprising to you to find a sexual assault trivialized.

We’re told to consider it a victory that we even made it to court and that there was any conviction at all. But Brandon’s other victim and I see this conviction as an outrageous reminder of the long-term and continuing failures of the criminal justice system when it comes to addressing sexual assault seriously, and of how the odds are stacked against sexual assault survivors. To attempt to frame this misdemeanor conviction as anything else is perilously misleading.

Charles Ogletree, I feel a particular sense of betrayal by you, a Black leader I looked up to and thought valued the experiences and pain of Black women. Now, you’re part of a group that is engaging race in exactly the same way Clarence Thomas did when, counting on his colleagues’ white guilt to distract them from the substance of Anita Hill’s claims, he called her efforts to hold him accountable a “lynch mob.” You saw through that. Why can’t you see through this? The racial conscience you conjure and rely on here acknowledges only the historical wrongs suffered by Black men, while situating the dual oppression of Black women as marginal, irrelevant, and not about race at all.

An invitation

In his interview on June 13, 2011, Winston said, “…I remember getting into bed with ___ and I remember she was laying down and I remember shaking her to arouse her and she responded with — she barely responded just with like ahhhh, sort of a groggy answer.”

He went on: “I remember lifting her shirt off. Well, I remember laying there and like speaking into her ear and like shaking her on the shoulder and I was like, ‘___, sit up.’ And I like — she tried to sit up and I remember like holding her back while she sat up. And then we started making out, and I went to lift off her shirt and like she wouldn’t lift up her arms and I said, ‘lift up your arms.’ And she did and I pulled her shirt off.”

“And when I like — I mean, she seemed — she was definitely out of it, but she was I guess awake enough to like kiss me back when I made out with her.”

Is this just a typical, confused, ambiguous drunken sexual encounter to you? If so, I ask that you consider what it means to accept this as normative behavior, and I suggest that you educate yourselves on the realities of sexual assault, especially the kind that happens on campuses. Meanwhile, you are not helping men by promoting the idea that they shouldn’t be responsible for predatory behavior. You are not helping Black men by defending the actions of one who had to hold a barely conscious woman up so that he could put his tongue in her mouth. You are not helping women by asserting that they deserve to be assaulted if they become intoxicated. You are not helping to foster a safe environment for current or future Harvard Law students by institutionally betraying a former student who is a survivor.

You’ve made current and future students who have been or who will be assaulted at Harvard Law School feel less safe and be less safe.

I am tired of being treated as if I don’t matter. I am hurt by how much more easily you believe a man when he says “she’s lying” than a woman when she says “he sexually assaulted me, and I deserve better.” I am angry with you for forcing me, as my assailant did, to assert my value. But, most importantly, I am not alone. I am only one of the increasing number of survivors who reject the silence that you have endorsed in this situation and are trying to impose. You will not succeed in silencing my story — I’m just one of many survivors in our community whose very real pain you will have to reckon with.

From you, I expect more, just as I expected integrity from the Black man who used to be my friend. The Harvard community deserves better. We all do. To all of you 19 Harvard Law Professors: Do better.