Posted November 25th, 2018.
By TODD FEATHERS New Hampshire Union Leader
For more than a year after a group of female psychology students organized to file complaints of sexual harassment against three Dartmouth College professors, they remained publicly quiet about their experiences.
The school launched and concluded an internal investigation, the Attorney General’s office initiated a criminal probe, and the three professors — Todd Heatherton, William Kelley and Paul Whalen — resigned or retired. But beyond hints of sexual misconduct and a predatory culture in the Department of Psychological and Brain Sciences, the public received scant information about how many victims there were, who they were, or what happened to them.
On Nov. 15, the women’s strategy shifted. In preparation for filing a class action lawsuit against Dartmouth, six of the seven plaintiffs engaged in a coordinated media blitz.
A public relations firm helped arrange their interviews. Professional pictures of the women were made available upon request. And their stories, including accusations of groping, lewd messages and rape, appeared in dozens of media reports, from small local newspapers to national outlets like The New York Times, The Washington Post and The Wall Street Journal.
The seemingly abrupt shift from quiet to outspoken, is part of a larger trend, during the #MeToo era of sexual assault and harassment victims speaking out, according to attorneys who handle the cases. But when the accusations involve a powerful institution with a reputation to defend, they say, it remains a risky approach.
“In the majority of cases that become public, I think it makes them harder to settle in the short run because of the public perception that the school has a mark on it, their brand took a hit,” said New York attorney Andrew Miltenberg, who specializes in defending students in campus sexual assault cases. “Anything short of a complete exoneration in the public eye is bad (for the school). … They want a public victory to go with their public humiliation.”
The plaintiffs attempted to negotiate a settlement with Dartmouth before turning to the court system but the two sides couldn’t reach an agreement, said Steve Kelly, one of the Sanford Heisler Sharp attorneys who is representing the women.
In addition to $70 million in damages, the women are also asking for a court order that Dartmouth institute policies to ensure no future students suffer the type of harassment they reported. The college declined to comment for this story. At the beginning of this year, the National Women’s Law Center, a nonprofit, founded the Time’s Up Legal Defense Fund. In addition to financial assistance for primarily low-income women who want to pursue sexual harassment cases, it also gives public relations grants.
Emily Martin, vice president for education and workplace justice at the NWLC, said many women have taken advantage of the aid to make their stories public. While there may be no data that proves victims are more or less successful when publicizing their accusations, the attention does seem to have shifted the justice system as a whole.
“This past year of so many people being brave enough to share their experiences — I suspect that is shifting how judges and juries hear stories of harassment and abuse because it makes it harder to think of harassment as ‘not that bad,’” Martin said.
Kelly has been representing sexual assault victims for more than a decade and was an anti-sexual violence advocate for years before that, following the rape and murder of his sister in 1988. For many years, he believed it was paramount to maintain his clients’ anonymity in assault and harassment cases.
His feelings have evolved, due in large part to another New Hampshire case.
In 2016, Kelly represented Chessy Prout in her civil lawsuit against St. Paul’s School. She was 15 when she accused Owen Labrie, a classmate at the prep school, of sexually assaulting her and she remained anonymous throughout his criminal trial. But when she brought the civil suit against St. Paul’s, the school’s lawyers sought to end that anonymity.
“St. Paul’s School, in its idiocy, filed a motion to make her use her name because she was going to turn 18 before the case went to trial,” Kelly said. “They believed they had leverage over her and they were going to use that leverage because she didn’t want to be identified.”
Instead, Prout went public, giving interviews to the “Today” show and other national outlets and has written a book about her experience.
In January she reached a confidential settlement with St. Paul’s.
Each client must make his or her own decision, Kelly said, but since representing Prout he counsels his clients on the benefits of publicizing their cases.
“That’s what’s going to change an institution like Dartmouth — shining a light on these actions. Because if you don’t do that, you have these bureaucrats who are hiding in offices and are fearful and the pressure (on them) is to manage risks,” he said. “We always try to engage with people quietly, but if they don’t want to engage in those conversations you have to shine the light.”
Six of the seven women suing Dartmouth have chosen to do so under their true names, while one has filed a motion to remain anonymous. In a recent filing, Dartmouth’s lawyers said they do not oppose the woman proceeding as Jane Doe at the current time, but they reserved the right to object in the future.
Beyond a brief statement challenging the plaintiffs’ claims about how administrators handled harassment reports, Dartmouth has not yet responded to the lawsuit.
As such, it’s too early to tell what kind of effect the women’s public campaign will have on the outcome of the suit itself.
“In New Hampshire, you’ll have some judges who will be quite critical of that approach, who will be quite critical of a plaintiff talking to people when they have a case,” said Eric Macleish, a Massachusetts attorney famous for his work representing priest sex abuse victims. “I don’t know whether it’s strategically good to do it” in order to reach a settlement or win a jury trial, he said.
But the fact that the students have used the lawsuit’s publicity to steer a public conversation about sexual harassment not just at Dartmouth, but in science classrooms and workplaces as a whole, suggests they have loftier goals than being compensated for their suffering, Macleish said.
“I think you have to take a look at it from a longer-term perspective — it’s a way to educate the public,” he said. “These are also matters where you’re really trying to change behavior. You’re trying to change a society to make it less tolerant of harassment and abuse.”