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."