Harvard Law professor faces backlash for defending Harvey Weinstein

Harvard Law professor and Winthrop House faculty dean Ronald Sullivan has joined the legal defense team of notorious Hollywood producer Harvey Weinstein, who stands accused of numerous instances of sexual assault and harassment. Sullivan, a former public defender, is now a professor of criminal law and the head of Harvard Law’s Criminal Justice Institute. Professor Sullivan, like many Harvard Law professors, has also been a vocal critic of Harvard’s own sexual misconduct adjudication policies. Recently, he railed against what he called a total lack of “due process or the presumption of innocence” in sexual harassment proceedings against Harvard economist Roland Fryer, Jr.

On Monday, a group of students wearing tape over their mouths and carrying signs like “Harvard’s Legacy? Ignoring Survivors” and “Down with the Dean” called on Harvard to remove Sullivan from his faculty dean position, arguing that his defense of individuals accused of sexual misconduct conflicts with his role as the faculty dean of a residential house.

A Change.org petition calling for his removal argues that “the developments of Dean Sullivan’s professional work are not only upsetting, but deeply trauma-inducing,” and asks:

For those of you who are members of Winthrop House, do you really want to one day accept your Diploma from someone who for whatever reason, professional or personal, believes it is okay to defend such a prominent figure at the centre of the #MeToo movement?

Of course, the students making these demands have every right to do so; they are merely exercising their right to free speech. What’s troubling is that the Harvard administration is taking these demands — which boil down to calls to penalize and marginalize a criminal defense attorney for defending criminals — seriously.

Here’s Dean of the College Rakesh Khurana, as quoted in The Harvard Crimson:

“I take seriously the concerns that have been raised from members of the College community regarding the impact of Professor Sullivan’s choice to serve as counsel for Harvey Weinstein on the House community that he is responsible for leading as a faculty dean,” Khurana wrote. “I have also met with Professor Sullivan to discuss his responsibilities to the House and have communicated that the College believes that more work must be done to uphold our commitment to the well-being of our students.”

For his part, Sullivan said exactly what you would expect someone who believes in due process and the presumption of innocence to say:

Sullivan wrote more broadly about representation in the United States, writing that “every citizen charged with a crime is cloaked with the presumption of innocence.”

[...]

“It is particularly important for this category of unpopular defendant to receive the same process as everyone else – perhaps even more important,” Sullivan said. “To the degree we deny unpopular defendants basic due process rights we cease to be the country we imagine ourselves to be.”

Sullivan’s predicament is not unique. Recently, FIRE wrote to Plymouth State University after it penalized two faculty members for assisting in the defense of a local high school guidance counselor who pled guilty to sexually assaulting a student. And several years ago, Sullivan’s HLS colleague Jeannie Suk Gersen wrote in the New Yorker about the difficulty, as a criminal law professor, of even teaching rape law in the current climate, for fear of offending students. Particularly because law school pedagogy often involves asking students to contemplate thorny cases, rather than “cases in which everyone will agree that the defendant is guilty,” Suk Gersen wrote that “[a]bout a dozen new teachers of criminal law at multiple institutions have told me that they are not including rape law in their courses, arguing that it’s not worth the risk of complaints of discomfort by students.”

When I think about the current state of due process and the presumption of innocence in the context of sexual misconduct cases, I am reminded of a powerful passage in Dorothy Rabinowitz’s searing expose of the abuses of process that took place during the day-care child abuse prosecutions of the 1980s:

We are a society that, every fifty years or so, is afflicted by some paroxysm of virtue—an orgy of self-cleansing through which evil of one kind or another is cast out. From the witch hunts of Salem to the communist hunts of the McCarthy era to the current shrill fixation on child abuse, there runs a common thread of moral hysteria. After the McCarthy era, people would ask “but how could it have happened?” How could the presumption of innocence have been abandoned wholesale?

The fact that the evils in question — child abuse, sexual misconduct — are real cannot justify dispensing with our society’s fundamental belief that even the worst criminals are innocent until proven guilty and are entitled to a robust defense. Certainly, those calling for Ronald Sullivan’s removal from his faculty dean position are not arguing that he shouldn’t be permitted to defend Harvey Weinstein. But making pariahs of people who defend the accused sends the dangerous message that those who choose to do that work — work that is foundational to our system of justice — do so at their own peril.