Harvard’s view on consent at issue in sexual assault policy

John W. Weeks Bridge and clock tower over Charles River in Harvard University campus in Boston with trees and blue sky.Design

In the fierce debate about campus sexual assault, Harvard University’s policy has come under particular scrutiny, assailed by some professors as a product of political correctness that stacks the deck against the accused. But a range of specialists who help colleges handle misconduct allegations say Harvard’s policy is decidedly mainstream.

By not including sexual-consent guidelines adopted by a growing number of schools, Harvard has taken a more conservative approach than many of its peers, they say.

In recent years, many colleges have adopted an “affirmative consent” standard, which states that sex is considered consensual only if both partners explicitly communicate their willingness to engage in sexual activity.

Harvard’s policy, meanwhile, simply forbids “unwelcome conduct,” which it defines as “unrequested or uninvited” behavior — but does not require explicit consent.

Harvard says its standard is consistent with federal civil rights law, but critics say the policy does not go far enough and is out of step with other colleges.

“I definitely see Harvard as an outlier,” said Djuna Perkins, a Boston-area lawyer who conducts sexual misconduct investigations and training for colleges. “Most definitions now require affirmative consent.”

The clash about college misconduct policies is the latest flashpoint in a broader debate about how to curb sexual assaults on campus and what standards should be used in determining guilt. The issue is playing out at colleges around the country and comes as 86 schools — including Harvard and nine others in Massachusetts — are facing federal inquiries into their handling of sexual-assault cases.

While the US government has not called on colleges to adopt affirmative consent policies, often described as “yes means yes,” hundreds of schools have taken the step. This fall, California became the first state to require the standard.

“Lack of protest or resistance does not mean consent, nor does silence mean consent,” the California law reads. “Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time.”

Ada Meloy, general counsel for the American Council on Education, a leading higher education association, said the standard has quickly become more prevalent, including in many Ivy League colleges.

“It’s a rapid change in policy,” Meloy said.

Dartmouth defines affirmative consent as “clear and unambiguous agreement, expressed in mutually understandable words or actions.” Yale’s policy defines consent as “positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter.”

But the affirmative consent standard is not without its critics. Some call it impractical because it requires ongoing assent throughout a sexual encounter and say it shifts the burden of proof to the accused.

Colby Bruno, senior legal counsel for the Victim Rights Law Center in Boston, described affirmative consent as a “very difficult standard to implement.”

“It muddles the facts,” she said. “Sexual assault cases are so factually intense that it’s extremely difficult to parse them all.”

Harvard officials have defended the school’s approach as neutral and objective, saying “unwelcome conduct” is a widely accepted standard that can be applied not only to sexual assaults but also to harassment and other forms of sexual misconduct.

Harvard officials also say its definition offers the same protections as an affirmative policy and say the “absence of a ‘no’ does not mean a ‘yes.’ ”

But supporters of affirmative consent policies say they establish clear guidelines that can reduce the ambiguity around some alleged sexual assaults.

Last month, a group of Harvard students called on the university to adopt affirmative consent, calling it a “critical element” of an effective policy to confront assaults. “Silence — the absence of a ‘no’ — does not mean ‘yes,’ and our university policy should explicitly recognize that,” an online petition stated.

Around the country, colleges have overhauled their misconduct policies in response to a 2011 letter from the US Department of Education’s Office for Civil Rights, which details colleges’ legal obligations to investigate allegations of sexual violence.

The advisory, which became known as the “Dear Colleague” letter, said colleges must use a “preponderance of the evidence” standard in investigating complaints, citing reports estimating that 1 in 5 women are victims of sexual assault while in college and that the majority of sexual assaults on campus occur when women are incapacitated.

Critics say the “preponderance” standard is biased against those accused of sexual assault, but virtually all colleges that have changed their policies have adopted it, including Harvard.

Earlier this fall, a group of current and former Harvard law school professors criticized university officials for allegedly bowing to federal pressure with its sexual assault policy, accusing the school of “jettisoning balance and fairness in the rush to appease certain federal administrative officials.”

“The goal must not be simply to go as far as possible in the direction of preventing anything that some might characterize as sexual harassment,” they wrote last month in a Globe opinion article signed by 28 people. “The goal must instead be to fully address sexual harassment while at the same time protecting students against unfair and inappropriate discipline, honoring individual relationship autonomy, and maintaining the values of academic freedom.”

Alan Dershowitz, an emeritus Harvard Law professor who was among those who signed the article, said colleges have adopted broadly similar policies on sexual assaults in keeping with federal mandates, which he said are biased against the accused.

“It’s really not a criticism of Harvard,” he said. “It’s a criticism of the federal government. It’s a criticism of the Obama administration.”

“These rules are written to preclude a defense” for accused students, he said.

Dershowitz said he favors affirmative consent policies but said the evidence standard in assault cases should be higher.

Peter F. Lake, director of the Center for Higher Education Law and Policy at Stetson University, said colleges’ revamped policies are “born during wartime” and said only time will tell what proves effective.

“Harvard is essentially experimenting,” Lake said. “If it works, it could be a template for other institutions. If it doesn’t, it might be a lesson learned.”