How can you talk about a “category” of defendant, as if that category transcends race, sex, class and histories of oppression? … The law is embedded in those histories, of course, because it is embedded in history, and the world is full of oppression; pushing toward equality is a political project. Equality has to be the principle … I’m sorry, there is no equality; the system is rigged, and talking about Weinstein as just another defendant evades his real power in the world … Does rigging our concept of justice against the despised person and attacking his lawyer advance equality? I don’t see the evidence; there’s been a lot of despising going on … There’s been a lot of rape going on, too; there is no justice for women … There’s no justice when you’re accused of a sex crime. Bam! you’re guilty … We have to respect the suffering victim of any crime, and we have to protect the rights of the criminally accused. There’s a tension there, and we can’t ignore it. As a society, we tend to ignore it in high-profile cases with defendants who are extremely unpopular—which is why what happens in those cases, when guilt is presumed and everyone is watching, is so important … It’s a measure of any society, how it treats the “damned and despised” … And it’s not a measure how it treats women’s suffering? Women haven’t been believed, and have been essentially tried for coming forward. That’s not a problem? … That is a problem, and the legal system must be accountable. People’s fates can’t be based on belief, though. Women are defendants too. Women are the mothers of defendants. Everyone wants to be believed; how do you resolve that? … Shit, there are people every day who go before a court, and every day face the prospect of suffering because no one’s going to believe them; most of them never get a trial, they fill the prisons. They’re not all nice people, but we should care that they are effectively denied their rights … You’re talking about people who are poor and powerless. That’s structural injustice, but so is letting a criminal buy his way out because he can afford a fancy legal team. No crime victim wants to see that … You shouldn’t say “criminal”; that’s for the state to prove … The state can be wrong. Popular opinion can be wrong … Not about Weinstein … Let’s not talk about Weinstein, but we should talk about power. No criminal defendant has power in the criminal justice system, and no defendant, however wealthy, can match the resources of the state. This is crucial. If we can’t see the defendant, irrespective of person, we can’t properly see the state—its awesome power to police, prosecute and punish, a power that by its nature, also irrespective of persons, establishes a fundamental conflict between the state and every individual … Yeah, if you’re in the dock, you better believe you want a strong advocate, because if the state is going to exercise its ultimate power over your life, it better have to prove its case … That’s the problem: power over your life. Most exercises of male power aren’t in the courts and never will be. That’s patriarchy. That’s the issue … Struggles for justice aren’t discrete things. Due process, presumption of innocence, burden of proof—as terms they sound analgesic, like aspirin, or cruelly absurd because of all the times people, especially poor people and minorities, don’t get them. But they exist in contested history, where rights are not conferred; they, too, are the product of human struggle against oppression and unchecked power. That struggle is continuous and exists simultaneously on many fronts. So, we should be asking, What responsibilities does it demand of the citizen? …
Some version of that dialogue was not organized following Sullivan’s statement. Protesters said discussion was beside the point. They weren’t denying Weinstein’s right to the representation of his choice; he could choose many lawyers, they said, but Sullivan shouldn’t be one of them, because his participation could be “trauma-inducing” for Winthrop residents (the term from a student on the Crimson, not a Winthrop resident). Rather than an invitation to intellectual work, Harvard’s administrators sent students questionnaires: is Winthrop House “sexist,” “non-sexist,” “hostile,” etc.? Those are standard to the Title IX process, as is confidentiality, and it is argued that Harvard was legally bound to begin the process. What emerged as a result, though, were two principal forums for speech: one, the investigation, conducted in secrecy (unavoidably, and for reasons that are understandable regarding allegations of impropriety but at odds with a dispute over the compatibility of professional roles); the other, a noise machine that, though prompted by politics (the pariah status of a criminal defendant) and fueled by politics (the energy of #MeToo), then proclaimed that the demand to remove the deans had nothing to do with politics.
None of Sullivan’s antagonists spoke of guilt by association; these are liberals, and that term is too bonded to the anticommunist witch hunts of the 1950s. They spoke of fear and security. They said Sullivan and Robinson must go. They did not speak of disloyalty, but their words bore its whiff: protection is the first duty of deans, and by putting defense of a dangerous man ahead of the chance that some students might thereby feel endangered, Sullivan was shirking his duty. However much that may comport with a conception of Harvard house masters in loco parentis, one might reasonably ask how criminal defense attorneys can ever be good parents to actual children if the rational basis for feelings of fear cannot be challenged.
Students picketed Winthrop House with tape across their mouths; meanwhile, Sullivan said he’d received notes of support from other students, some saying they feared reprisals if they spoke publicly. After Sullivan and Robinson were ousted, one of the protesters’ allies in the press, Lucy Caldwell writing in The New Republic, described Sullivan’s statement about unpopular defendants as “intellectually dishonest, if not downright nefarious” and “condescending.” Students know all about how the criminal justice system works, she argued; they also know that Weinstein is a wealthy, powerful man. Earlier, one of Sullivan’s Law School colleagues, Jeannie Suk Gersen, had written in The New Yorker:
In the thirteen years that I have been a law professor, teaching and writing on criminal law and sexual assault, I have regularly provided legal counsel: both to alleged victims and to people facing allegations of wrongdoing at school, in the workplace, or in the legal system. In the past year, the climate for such work has changed. There is now such a stigma attached to people accused of sexual misconduct that anyone who defends legal principles on their behalf risks being mistaken, in the public mind, for a defender of sexual violence.
Caldwell wrote that Sullivan’s supporters were deluded to think they were defending academic and professional freedom: “instead, they’re defending a status quo that has caused so many women to suffer for so long.”
Sullivan and Robinson are black. It has been regularly mentioned in passing that their appointment in 2009 as house masters was a first for Harvard. The college was founded in 1636. The house system was established in the 1930s. That Harvard took more than seventy years to confer the honor of master upon black faculty members but in the blink of an eye, relative to its history, endorsed suspicion of the pair’s continued presence in the house; that it made Robinson invisible and effectively forced Sullivan to profess his worthiness, to cite his bona fides as an advocate for victims, the downtrodden, the family of Michael Brown, killed by police in Ferguson; that it terminated their contract immediately after named and unnamed sources in a newspaper accused them of long being high-handed, incompetent and scary; that, in rebuffing reasoned argument and indulging feelings, vandalism and innuendo, Harvard chose to “police certain ideas and [not] police others,” to borrow Sullivan’s words—these elements of the story were subject to little analysis taken together. After Sullivan told an interviewer that he thought race was a factor in the administration’s decision to order a climate review over a clash of ideas, his opponents said that claim was ridiculous: ideas were not at issue; his ability to make a home for students was. Maybe Sullivan had a feeling. Maybe it related to unspoken knowledge of white professors whose hands-on relations with students haven’t precipitated investigations. And maybe the dean of Harvard College was correct in saying by May 11 that the situation at Winthrop House had become “untenable.” But gripped by emotion for months, the school became a rough court, and Sullivan and Robinson defendants, guilty as charged.
The anthropologist Roger Lancaster has a term for communal feeling forged from the negative energies of fear, suspicion, vigilance, mutual identification against the demon—and