An Open Letter To Harvard Law Professor Nancy Gertner

Dear Nancy,

I’ve read your recent articles about campus sexual assault. I appreciate and respect your position as an advocate for accused sex offenders, but please stop using your gender and your status as a feminist to persuade others that you are also an advocate for women’s safety and equality.

Indeed, contrary to your claim that you have worked to improve the law for rape victims, you have, in my opinion, fought to make things worse.

In cases of mine in which you were involved as the lawyer for the rapist, you fought hard to weaken women’s rights, without a constitutional imperative or need to do so on behalf of your client.

For example, you advocated in Massachusetts to change the law and eliminate protections for rape victims’ constitutionally protected privacy rights.

In the 1991 case of Brandeis University student Jonathan Stockhammer (you refer to it as the “Paul” case in your articles), I was your legal adversary for one aspect of Stockhammer’s appeal after his conviction for rape. You asked for and won not only a reversal of his conviction, but also an unwarranted ruling from the Massachusetts Supreme Judicial Court (albeit dictum) declaring that victims’ privileged counseling files would no longer be protected by judicial screening procedures (“in camera reviews”) that had been set up to prevent needless disclosures of irrelevant, sensitive information.

When I set out to overturn the Stockhammer decision in 1993 by initiating impact litigation known as the “Bishop/Fuller” cases, you used your influence as a Board member of the National Organization for Women Legal Defense and Education Fund (NOW-LDEF) to persuade them to allow you to write an amicus brief on the organization’s behalf. NOW-LDEF had already promised me that they would submit a brief in support of my position—and they had a pro bono law firm from D.C. on board willing to support my argument that the Stockhammer decision should be overturned—but you talked them into letting you write the brief instead.

You kept your role with NOW-LDEF a secret from me, even though you told me you were writing a brief. I assumed you were writing it on behalf of the defendant given how hard you fought to win the Stockhammer decision.

You did not serve me with a copy of your brief until I was sitting at counsel table at the Supreme Judicial Court, on the morning of oral argument, waiting for the Justices to take the bench. This meant I was unable to read it prior to making my argument to the Court in which I urged the justices to overturn Stockhammer and reinstate the requirement of “in camera” screenings of privileged counseling files. I emphasized to the court that this was an unconscionable rule of law that was forcing rape victims to choose between healing and justice.

When I read your brief after the argument, I was shocked to see that you were representing NOW-LDEF, and that your brief was 99% rhetoric about law’s unfair treatment of rape victims, followed by a request that the Court rule against me. More precisely, you argued that the Court should:

1. affirm the Stockhammer decision and continue to forbid in-camera judicial screenings;
2. impose ANOTHER burden on victims and further undermine their privacy rights by eliminating the requirement that a defense attorney explain why he believes a victim’s treatment file contains “relevant and material” evidence.

In other words, you wanted the court to rule that reams of irrelevant and deeply private counseling files of rape victims should routinely be turned over to rapists and their lawyers, simply for the asking, without any showing of need or even private judicial screening to prevent gratuitous harm to victims.

When I read what you wrote, I wasn’t surprised because I knew your work as a criminal attorney, but I was shocked that a leading women’s rights organization would put its name on such a brief. I asked NOW-LDEF why they approved the brief, and they basically said it was because they “trusted” you. I then solicited women’s and victims’ groups around the country to sign a letter demanding that NOW-LDEF withdraw its brief. A long-time highly respected advocate for victimized women, Attorney Joan Zorza, spearheaded the effort.

When NOW-LDEF received the protest letter, they called me and said you wanted to take me to lunch. I gladly met with you in Boston, and you tried to persuade me to allow you to keep the brief on file with the court. You said, “the SJC has already sembled on the case, so it won’t help to withdraw it at this point.” I said I didn’t care and I told you to pull it. You offered to rewrite it, partially, to remove your request that defendants not have to show “relevancy and materiality” before gaining access to privileged files, but you insisted that you be allowed to retain your argument that Stockhammer be upheld.

I made no deals with you, and I insisted, again, that you pull the brief in its entirety because it would mislead the court to believe that women’s rights groups supported your position, which was not true.

You pulled the brief a few days later, informing the court that your client, NOW-LDEF, had withdrawn its authorization for the brief. A few months after that, I won the case and Stockhammer was overturned.

When the rescript ruling was released, your name as an attorney for NOW-LDEF was on the list of lawyers who filed amicus briefs in the case. But when the formal decision was published a month later, your name was gone. This led to a column in Lawyers’ Weekly entitled the “Nancy Withdrew Mystery.”

I was asked by Lawyers’ Weekly to explain your withdrawal, but I declined to tell them because you were at that time being considered for a federal judgeship, and I wanted you to be appointed because I thought you would be good for many women’s issues (and, as a federal judge, you would stop causing trouble in my impact litigation work in rape cases, which are almost always handled in state court). I even got a call from Congress about you undermining the rights of rape victims and I declined to criticize you. I even called you personally to let you know I’d received those phone calls because I wanted you to know that I supported your judgeship despite your horribly offensive efforts in my cases.

Now that you have left the federal bench and are teaching at Harvard Law School, you have again injected yourself into another legal controversy involving rape victims’ rights; this time on college campuses.

You have a right to your opinion, but in my opinion you have no right to mislead people about your agenda and your motives by mischaracterizing yourself as someone whose position promotes gender-equity.

As you know, my case against Harvard Law School was the case that started all the recent campus sexual assault activism. I filed the case with OCR back in 2010 after Harvard hired me to consult on a Title IX matter. I filed a similar case against Princeton around the same time, and then I sent both cases to OCR headquarters in DC, in the fall of 2010, and asked OCR to issue some form of “global guidance” because problems at both schools were systemic in higher education. I solicited amicus letters of support from the National Center for Higher Education Risk Management and Security on Campus. OCR agreed with us and released a “Dear Colleague Letter” in April 2011, which made clear that sexual assault policies at both Harvard and Princeton were substantially non-compliant with women’s rights under Title IX.

Days after the Dear Colleague Letter was released, higher education lobbyists got Congress to file the Campus SaVE Act to overturn the “Letter.” On the eve of the SaVE Act’s effective date of March 7, 2014, I filed a federal lawsuit in D.C., with the help of Dr. Bernice Sandler (the “Godmother of Title IX”) and victim’s rights attorney James R. Marsh, to enjoin SaVE from being enforced on any campus. Our lawsuit argues that Congress has no authority to regulate violence against women, and even if it did, Congress cannot constitutionally enact laws that violate women’s equal protection and due process rights by codifying disparate treatment for victimized women in college. As a former federal judge, you know this better than most.

That lawsuit is still pending, and because it implicates Harvard (and UVA,) Harvard had no choice but to change its policies last summer to comport with the constitution and women’s civil rights. That you object to Harvard’s efforts to respect women as fully equal citizens on campus is disturbing.

You describe yourself as a feminist, but I don’t think any feminist would support treating sex-based violence on campus under disparate standards compared to race and ethnicity-based violence, yet that’s exactly what you are doing in your various writings on this topic. You can say what you want, but I believe that promoting the subjugation of women is the antithesis of feminism.

How would your proposal for the disparate treatment of sex-based violence at Harvard even work for a black woman who is attacked on the basis of her race and her sex? Would there be two hearings? One for vaginal skin color, and one for vaginal skin location?

I hope you have the integrity to engage in constructive self-criticism, and that you will strive to address these important issues honestly.

Advocacy, even for the most vicious sex offenders, is noble — but using one’s gender to legitimize the mistreatment of women is not advocacy, it’s sexual exploitation of the worse kind.

If you can’t stop using your self-described status as a feminist to hurt women then please just stay silent.

You know the old saying, with feminists like that ——

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Wendy Murphy

Wendy is an adjunct professor at New England Law|Boston where she has taught a seminar on sexual violence for more than ten years. She developed and directs two projects in conjunction with the school’s Center for Law and Social Responsibility. The “Sexual Violence Legal News” project is an alert service that distributes appellate cases of interest, with editorial comment, related to interpersonal violence. The “Judicial Language Project” uses socio-linguistic research to critique the language used in law and society to describe violence against women and children. She was a Visiting Scholar at Harvard Law School from 2002-2003 where her work focused on the status of women in their capacity as victims in the criminal justice system. Wendy previously taught “Reproductive Rights and Technologies” at the Massachusetts Institute of Technology and in 2002 served as the Mary Joe Frug Visiting Assistant Professor of Law at New England Law|Boston where she has also taught courses in reproductive technologies and constitutional criminal procedure. She is a trial and appellate attorney specializing in the representation of crime victims, women, children and victim service providers and is the founder and director of the Victim Advocacy & Research Group, a volunteer legal advocacy organization that has provided free legal services to victims and other third-parties in the criminal justice system since 1992. Wendy wrote the first-ever law review article connecting sexual assault to Title IX in 2006 and filed the first-ever OCR policy complaint against a university in 2002.

Latest posts by Wendy Murphy (see all)

• Federal Court Stifles the Campus SaVE Act - March 31, 2015
• An Open Letter To Harvard Law Professor Nancy Gertner - February 2, 2015
• Men Accused Of Racist Violence Have Rights Too - January 29, 2015