While those enraptured by the narrative seem not to care (CNN essentially turned over its editorial standards to the producers), the last few weeks haven’t been good for The Hunting Ground. Nineteen Harvard Law professors criticized the film’s accuracy. E-mails from one of the film’s producers, Amy Herdy, revealing that “we don’t operate the same way as journalists—this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side.” Stuart Taylor sharply criticized the film in National Review. An NPR piece by David Folkenflik highlighted a study in JAMA Pediatrics that contradicts the film’s reliance on the controversial researcher David Lisak. And lawyers for one of the film’s targets, Brandon Winston, put together a document-filled website containing trial transcripts that the film’s producers either ignored or distorted to make their case.
It’s a striking commentary on the two sides’ credibility that the accused student has done everything he could to have people read the trial transcript, and the “documentary filmmakers” seem utterly disinterested in the factual record. That transcript, by the way, vindicated the first major criticism of the “documentary,” from Emily Yoffe.
Throughout this process, director Kirby Dick and producer Amy Ziering haven’t taken criticism particularly well, and they’ve held true to that pattern. Last week brought a veiled threat, as the duo informed the Crimson, “The Harvard Law professors’ letter is irresponsible and raises an important question about whether the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law.” In other words: criticize us and you might face a Title IX complaint with OCR. As HLS professor Janet Halley recognized, “What it really means is that they don’t want the debate.”
At the very least, it might be presumed that “documentary” filmmakers making veiled threat against professors’ speech would outrage those professors’ colleagues. But one (non-tenure track) member of the Harvard Law faculty has consistently sided with Dick and Ziering in their contempt for campus due process. In an earlier piece on Inside Higher Ed, Diane Rosenfeld was quoted as saying, “I fully support the Hunting Ground film, which is all about ending the silencing of survivors. I am bound by the principles of confidentiality under which the hearing was conducted, so I cannot say anything about the substance of the case. I can however say that the signatories of the press release represent only a minority of the [Harvard Law School] faculty.” It’s true that 19 HLS professors signed the open letter. It’s also true that that the only HLS instructor who appears to have defended The Hunting Ground is Rosenfeld. (One is, obviously, a much smaller minority than nineteen.) Dick and Zeiring nonetheless raced to put the Rosenfeld statement on their site.
Rosenfeld’s argument seems to be that the initial stage of the Harvard process—which produced a guilty finding that an appeal at Harvard overturned—needs to be trusted as the sole determinant on what happened in the case. She reaches this conclusion even though the initial panel (whose findings, again, were found unsubstantiated) didn’t have access to accuser Kamilah Willingham’s sworn testimony, didn’t have access to the physical evidence that came out at trial, and in particular didn’t have access to the cross-examination of Willingham. Neither Willingham nor The Hunting Ground team has chosen to release the transcript of that proceedings, which doesn’t speak well for their credibility.
Rosenfeld, meanwhile, asks us to trust her word that the initial panel got it right. She hasn’t said whether she read the trial transcript, or even that she’s read the transcript of the initial disciplinary hearing. She hasn’t even said whether such a transcript exists. She has strongly implied, in a Boston Globe editorial, that all students found guilty of sexual assault (however broadly the college happens to define it) in due process-unfriendly college tribunals should be expelled.
Hers is, to put it mildly, an odd approach to the use of evidence for a lecturer at Harvard Law School—even one whose research and teaching interests reflect a very specific type of gender-based ideology. Rosenfeld’s most recent publication, “Who Are You Calling a ‘Ho’?: Challenging the Porn Culture on Campus,” gives a taste of her scholarly interests. And her personal website labels her an “advocate” on the issue of campus sexual assault, with a background in representing sexual assault accusers who filed Title IX complaints against their universities. That someone with such a preexisting bias on the issue of campus sexual assault had any connection with Winston’s case—as Rosenfeld’s Inside Higher Ed comment implies—raises significant questions about bias.
Rosenfeld has offered a broader description of her attitude toward how colleges should handle campus sexual assault in an eye-opening essay for the Harvard Law Review. Here, she spoke positively about the “affirmative consent” standard—which shifts the burden of proof to the accused student and effectively requires him to prove his innocence before a campus tribunal. She favorably cites the research of David Lisak—which Reason has subsequently discredited. And she conceded that the college disciplinary system winds up falsely branding some students rapists. But the fear of a false accusation is “overblown,” Rosenfeld assures readers, and in any case isn’t all that relevant. “If the private [emphasis added] and public costs of false negatives are at least as high as the private and public costs of false positives,” then the due process-unfriendly college system needs no change—except, perhaps, to make it even more procedurally tilted in favor of the accuser. Rosenfeld’s standard is one that never would justify a college respecting due process, since advocates like the Harvard Law lecturer could always claim “private” (and thus unmeasurable) costs for the “survivors” that she represents.
Rosenfeld’s essay also features a series of vignettes about purported cases in which she was involved. Here’s one of them:
Another case involved a young female student who was out with friends drinking. When her friends wanted to go elsewhere for the night, they dropped her off at a male friend’s room, who said he would take care of her until the effects of the alcohol wore off. Instead, he and another male friend raped her. One of the accused men then bragged to a third friend about what the two men had done, who in turn then circulated the story in an email to his living group. The email corroborated the young woman’s account, including particular sounds she remembered hearing. She brought a complaint against the men through her school. They were held responsible and suspended, but then hired an attorney who prevailed upon the school to overturn the decision.
How did the attorney “prevail upon the school”? What was the school’s appeal process? Did the attorney file a lawsuit, or threaten to do so? Did this “case” on which Rosenfeld said she “worked” produce any documentation, so a reader could evaluate her credibility? Here’s Rosenfeld’s answer: “As I was researching this case for any public record to supplement this case description, I instead found a recent case from the same university . . .” In other words: there might (nor might not) be written documentation to test the veracity of Rosenfeld’s recollection. But she’s not going to provide any of it, and she’s not going to do anything to identify the parties (or even the date) of the case so someone can check.
That sounds like an approach that The Hunting Ground team would have preferred reporters use in the Winston case. No wonder they’re so fond of Rosenfeld.