Do the greater harms of sexual harassment and sexual assault justify a lesser evidentiary standard?: A look at the new rules for american colleges and universities

• Autor: Prof. Dan Subotnik
• Páginas: 749-752

749

DO THE GREATER HARMS OF SEXUAL

HARASSMENT AND SEXUAL ASSAULT JUSTIFY

A LESSER EVIDENTIARY STANDARD?:

A LOOK AT THE NEW RULES FOR AMERICAN

COLLEGES AND UNIVERSITIES

PROF. DAN SUBOTNIK1

UNITED STATES

Introduction

What unites the speakers at this conference is the objective of bettering the lives of

women through law. This I wish to do by rejecting a new development in the United



not everything that increases women’s power is a step forward.

This paper deals with a subset (to be discussed below) of the larger problem of

sexual harassment and assault. Like other wrongs, sexual harassment and assault is

diminishing in the United States. Nevertheless, the incidence is too high. Part of the

problem is that many victims are reluctant to come forward with their complaints

because of 1) the trauma of reliving the incident at the investigatory and prosecu-

tory stages; 2) the problem of ostracism by friends and acquaintances; and 3) the

 

    -

nesses. Nor is there often physical proof of bruising as there would be in the case of

  

but these are not likely to be the basis for a conviction, especially in the context of a

dating relationship. Women’s rights activists have long argued that most assaults take

place in precisely this context and most sex is presumably consensual.

1 Professor of Law, Touro Law Center. Email: Dans@tourolaw.edu. Professor Subotnik thanks his wife Rose

R. Subotnik for her editorial assistance; Yamila Gonzalez Ferrer for her enormous efforts in connection with

the Conference; Lila Mester for her help in translating my oral presentation into Real Academia Spanish.