December 3 2002
BERKELEY -- Seven months before the dean of UC Berkeley's law school resigned in the face of sexual harassment charges, a distraught student walked into professor Linda Hamilton Krieger's office in one of Boalt Hall's tree-shaded brick buildings.
Krieger, a specialist in discrimination law, knew the woman well and considered her one of the brightest students at the prestigious school.
Once in her office, Krieger said Monday, the woman confided that she had been sexually assaulted 16 months earlier — by the dean of the school. "It was horrible," the professor said of her anguish over the incident.
Krieger's account, along with one issued Monday by university officials, corroborates much of the former student's description of the handling of her complaint, which led to the resignation last week of Dean John P. Dwyer.
Dwyer's announcement — and subsequent allegations by the alleged victim's attorney that he had "grossly mischaracterized" the incident as consensual — sent a jolt through the law school, which has been roiled for years by dissension over affirmative action. The university held a meeting Monday to discuss the issue with upset students and faculty members.
"My God," said Eleanor Swift, a professor at the law school. "If this isn't a kind of signal that this issue needs to be on our agenda, nothing will be."
The student, through her lawyer, maintains that the encounter was not consensual. While acknowledging there was no intercourse, she said it was an overtly sexual act involving fondling that began while she was passed out after a night of drinking. In either case, the central issue is the same: Did the university respond properly to the woman's complaint, and did it have guidelines dictating the course of that response?
Krieger said she found that training and guidelines regarding sexual harassment at the university were inadequate. Even she, an expert in the field, wondered what her obligations were if the student did not make a formal complaint, she said. Would she be held liable if someone else were harmed? The student eventually did make such a complaint in October, as Krieger advised.
Krieger said the woman, now 27 and working for a public interest law firm, was credible. She had done research work for Krieger, and the professor had been her thesis advisor. "She was one of our star students. She had an excellent academic record. She is no flake," Krieger said.
Faced with an onslaught of media attention, Berkeley officials said Monday that they will review the university's sexual harassment policies and training for students, staff, faculty and administrators.
The day before, Laura Stevens, a Berkeley attorney representing the former student, alleged that Boalt Hall is not complying with state and federal anti-discrimination laws.
Stevens, reached by telephone while vacationing in Amsterdam, specifically cited a failure to provide training to prevent sexual harassment and other sexual offenses.
She said the law requires that university employees and students "be given training and education on a regular basis about the subject of sexual harassment, assault, molestation and acquaintance rape."
In the absence of such training, Stevens said, "There's still a law school full of people who are at risk."
Statements issued by the university Monday agree in some key details with accounts by Stevens and others, but differ in other important ways.
The university said the student approached three faculty members during the semester following the December 2000 encounter, but did not approach the school's Title IX official, who is charged with handling sex discrimination matters, until last May, two days before graduation.
Krieger, however, said the student had contacted a previous Title IX official shortly after the incident, to no avail. When the student came to her last April, Krieger said in an e-mail account, "She related to me her unsatisfactory experience with the Title IX officer shortly after the event occurred, but I knew from my work on a campus committee that the Title IX officer had been replaced.
"I told the student this, and also told her that I held the new Title IX officer in high regard."
Krieger agreed to call the official, paving the way for the student to meet with her in May. The professor said she did not disclose the student's identity or the dean's, leaving that to the young woman to decide.
Krieger said the student did not pursue the matter over the summer because she was busy studying for the bar exam. In the meantime, Krieger said, she realized that "if I kept the information to myself, and the alleged perpetrator harmed someone else, that it would have very, very negative consequences, not only for the subsequent victim, but also for the organization and possibly even for me personally."
When she tried to find guidance about what to do, "there was none to be had."
Not even the university's general counsel could help her, she said. She said she eventually decided to notify the university chancellor, but before she could, the student filed a formal complaint.
The university, in its statement Monday, said the student in May had declined to give the Title IX officer her full name, simply explaining what had occurred and saying it involved a dean.
She also expressed concerns about retaliation, but was assured that the campus had strong policies against retaliation, according to university officials.
The student declined to name the individual involved and chose not to file a complaint, the statement said.
In response to claims the university tried to keep the matter quiet, the administration's written statement on Monday said that under campus policy the university tries to reach a resolution that is "agreeable to both sides, is consistent with the faculty code of conduct, and that protects the privacy of all involved."
The statement also said that Dwyer had sought a confidential resolution of the issue. The university statement said that request was under discussion with the students' attorney when Dwyer resigned last week.
According to Stevens' account, the alleged sexual assault occurred after her client, a group of other students and a professor went out for dinner and drinks. They later were joined at the restaurant by Dwyer. After that gathering broke up, her client, four other students and Dwyer went to a bar for more drinking.
As the second gathering broke up, Stevens said her client was separated from the group. She said Dwyer offered the student a ride to her nearby Oakland apartment, and she accepted.
Once at the apartment, Stevens said, her client lay down and she believes that she passed out in her bed around 2 a.m. When her client awoke later — she remembered that it was 4:37 a.m. on her clock — she found Dwyer, fully dressed, in her bed, fondling her genitals with his hand and lying with his head near her breasts, Stevens said.
When her client awoke with a startle, Stevens said, Dwyer got up and left.
Stevens characterized the contact as a sexual assault. "She was drunk and passed out," Stevens said. "There's no consent when a person has passed out."
Stevens said her client passed out again, and then woke up about 8 a.m. At that time, she found a bruise on her left breast. She called her mother, told her about the incident, and then her mother came over to take a picture of the bruise.
Dwyer had a reputation for socializing with students, although that isn't unusual at the school. Although some female students interviewed Monday expressed disgust with the dean, others defended him and said they couldn't believe the allegations against him.
"He was a good professor," said third-year student Monique Morales, 31. "He invited us all to his house for a party. He was quiet, kind of shy. It's hard for me to believe it wasn't consensual, because a lot of girls made it obvious that they were flirting with him. Even the girls who flirted with him, he didn't respond."
Some Boalt professors said they were surprised by the complaint and Dwyer's resignation, which was announced Wednesday but will take effect Jan. 1.
"I know utterly nothing," said Herma Hill Kay, a former dean and current professor at Boalt. "It was a total shock to me."