Few figures involved in the Duke lacrosse case behaved more disgracefully than Wendy Murphy, an adjunct professor at the New England School of Law. A frequent TV commentator on the case, she earned a reputation for defending Mike Nifong’s prosecution through myriad errors of fact, misstatements of the law, and deeply offensive statements such as her betting that “one or more of the players was, you know, molested or something as a child.” To Murphy, there are no false accusers of rape–so as soon as an accusation is made, a “victim” exists. The presumption of innocence, she has maintained, is no more than a presumption that the “victim” isn’t telling the truth.
That bizarre conception of due process is right at home at Yale. The university’s troubling new policies toward sexual assault allegations reached public attention through the New York Times‘s attempt to smear former Yale quarterback Patrick Witt, who was caught up in the university’s Kafka-like “informal complaint” system. (In this procedure, designed to give the accuser maximum control of how the process plays out, the accused student doesn’t even have the right to present evidence of his actual innocence, much less cross-examine the accuser or have legal representation.)
The Witt affair turned out to be the tip of the iceberg regarding due process–an internal report revealed that the “informal complaint” policy allowed Yale to set up a monitoring program for at least one faculty member without even telling him he’s under investigation. The allegation of sexual harassment alone was sufficient for the finding of guilt.
Now these sorts of arrangements will be the norm. Yale has entered into a consent decree with the Office of Civil Rights, ensuring the “use of the preponderance of evidence standard in determining whether sexual misconduct occurred”; promising an informal complaint procedure in the future in which no accuser has to face cross-examination from the person she accused; and creating a double jeopardy system in which the rare accuser who doesn’t get her way at the lower level can appeal a not-guilty finding. So it’s almost fitting to see the commentator renowned for denigrating due process and the university that celebrated its own denigration of due process paired up in a race to the bottom.
The triggering event was a Title IX lawsuit–generated, Murphy claimed, by the Yale-OCR settlement–filed by her and another attorney, John Williams, on behalf Susan Burhans, who formerly served as security education coordinator for the Yale Police Department. The filing’s basic thesis: over the course of a decade, Burhans recommended a variety of policies which, if adopted, would have ensured that the OCR had no grounds for acting against Yale. But instead of Yale accepting her wise counsel, Burhans was fired.
A Connecticut Superior Court already appears to have dismissed Burhans’s case, for reasons that aren’t hard to discern, given some of the claims the lawsuit offers. Murphy and her co-counsel maintain that Burhans discovered that Yale accusers were “revictimized during sexual assault grievance procedures,” and demanded that her supervisors institute new procedures. (The complaint doesn’t reveal what these new procedures were.)
Burhans “experienced an increasing number of colleagues avoiding her,” which Murphy and her co-counsel suggest constitutes evidence that Yale violated Title IX. And the complaint wants to hold Yale liable for posting a $129,000 job in the security department requiring “qualifications Burhans did not possess.” Finally, the complaint reveals that Burhans applied for around 50 other jobs at Yale and didn’t get any. Again, it’s not clear how this is evidence of a Title IX violation.