Harvard’s sexual assault policy highlights the need for clarity
In the last two weeks, members of the Harvard community have called into question the university’s new policy on sexual assault. Now, all eyes are on Harvard to reconstruct a policy that is effective and sets a standard for the nation. As leaders of the graduate student group Harvard Students Demand Respect, we believe that doing this requires one baseline: affirmative consent.
At least one in five women will be victims of assault or attempted assault during college, but sexual assaults are severely underreported. Why is that the case? Survivors often fail to label their experiences as assault because they do not believe it is “serious enough” to report, a propensity that is even less likely when it involved someone they trust. On college campuses, where survivors are more likely to know their assailants, this pattern is even more problematic.
At the core of addressing campus sexual assault is our understanding of consent. Whether or not a sexual act constitutes assault hinges on whether consent was given. That means the definition of consent is crucial – both to sexual assault prevention and response. It plays a critical role in providing justice to victims, as it will be the basis for the survivor’s decision to report an assault, and the decision of a disciplinary board in evaluating the claim.
It is now time that universities must clarify the definition of consent as affirmative. Students around the country have united in a common stance: Our silence is not consent. The recent affirmative consent petition, written in collaboration by groups across the undergraduate and graduate schools states, “We are individuals with agency and when we are silent, it could mean a variety of things.” Affirmative consent means that consent is given clearly and voluntarily through a verbal or non-verbal “yes.”
Last week, an op-ed by 28 current and former Harvard Law School professors expressed a separate concern that the due process rights of the accused would be undermined with Harvard’s new policy. Such concerns over due process would be further addressed by providing clarity around consent. A policy which defines consent in affirmative terms would help protect against wrongful accusations by clearly defining what it means for an encounter to be consensual, and prevent miscommunications by setting a clear and comprehensible standard of what is unacceptable behavior from the moment students step foot on campus. Harvard’s policy does not currently define consent at all. This was a serious concern expressed by students in meetings this week.
A clear affirmative consent standard creates the foundation for prevention by bringing students on to common, clear terms with mutual expectations for behavior. With individuals from different backgrounds, countries, and cultures, there is real need for universities to establish a clear standard of behavior for what is and is not acceptable on campus.
Affirmative consent is quickly becoming the norm on college campuses across the country. The standard has now been mandated for all state-funded California schools, and New York Governor Andrew Cuomo has instructed schools in the SUNY system to include affirmative consent in their policies.
Some critics argue that affirmative consent policies are unnatural, claiming that a good deal of normal sexual activity could be labeled as sexual assault under an affirmative consent policy. In actuality, affirmative consent policies employ “a reasonable person’s standards” of spoken or implied consent, and do not affect mundane activities that take place within sexual relationships. Meanwhile, other critics claim that women will now “cry rape.” While there is undoubtedly the need to monitor implementation, given the factual knowledge of underreporting, there is simply no empirical evidence to substantiate this concern.
Of course, affirmative consent alone won’t solve the problem. The ambiguity of evidence in scenarios that occur between two people behind closed doors will always exist. However, such a policy would be a positive start in providing clarity for both parties, as well as for administrators tasked with resolving such cases.
This is no small issue. Women, who constitute the vast majority of survivors, now account for over half of the students in university classrooms nationwide. Without adequate protections, we are systematically disadvantaging a huge swath of our graduates, with one-fifth of college women more worried about running into their assailants in the library than studying for finals. Clearly, we have a problem, and solving it requires a cultural change, the cornerstone of which must be an affirmative definition of consent.