U.S. News

04.04.14

Harvard’s Biggest Problem With Sexual Assault Is Harvard Itself

Why does a university use an antiquated definition of sexual assault, put the burden of evidence on victims, and discourage prosecution of cases?

Dear Harvard: I am writing to let you know I give up. My assailant will remain unpunished, and life on this campus will continue its course as if nothing had happened. Today, Harvard, I am writing to let you know that you have won.

The defeated tone of the anonymous open letter published in Monday’s Harvard Crimson struck a nerve far beyond the confines of Harvard Square. The female undergraduate student’s account of her assault at the hands of “a friend of mine” she trusted is chilling, but most of the letter was devoted to exposing the systematic failure of Harvard’s administration to support and protect her in the aftermath.  From the feminist blogosphere to the nightly news there was a sense of not only disappointment but shock that one of America’s most prestigious universities—in one of the most liberal cities in the country—could have left a student in shambles.

Last week, two students filed a federal complaint against Harvard with the U.S. Department of Education’s Office for Civil Rights, alleging the school’s sexual assault policies violate Title IX. According to Emily Fox-Penner, a Harvard freshman, who is one of the two people to file the complaint, the report includes testimony from 10 sexual assault victims.

Harvard is now the latest in a string of universities (and often elite ones) facing accusations of mismanagement, negligence, and even hostility towards students who come forward with cases of sexual assault. Campus advocates argue, though, that Harvard is exceptionally worse than its Ivy League counterparts when it comes to protecting students and meeting the Title IX guidelines.

According to the latest figures made public, Harvard had 31 reported cases of forcible sexual offenses in 2012 on its main campus. By comparison Brown had 16, Columbia 12, Dartmouth 11, Penn 12, Princeton 17, and Yale 16. Although all of the Ivy League campuses vary somewhat in size and the safety of the surrounding communities, Harvard’s numbers are significantly higher than its Ivy League counterparts.

It’s not just that sexual assault is a more pervasive problem on campus than either students or faculty recognize, but that the administration has failed to respond sufficiently to these cases. One of the major failings of Harvard’s current sexual assault policy is its conception of consent. “Harvard is the only Ivy League school that relies on negative consent,” says Fox-Penner, a member of Our Harvard Can Do Better, a group devoted to “dismantling rape culture at Harvard.” A framework of negative consent views an act as a form of sexual assault if the victim has expressed his or her unwillingness to participate. Rather, the other Ivy League schools have adopted a policy of affirmative consent, which emphasizes getting a clear yes from both partners for an act to be considered consensually.

“No means no” is now considered by many an antiquated policy that leaves inadequate protection those who were too scared or intimidated to vocalize their refusal. That Harvard has maintained it is fitting considering it hasn’t revised its definition of sexual assault since 1993, which campus advocates argue is yet another problem with a school policy is in desperate need of updating.

“No means no” is now considered by many an antiquated policy that leaves inadequate protection those who were too scared or intimidated to vocalize their refusal.

Opponents of the definition of sexual assault as it stands in the Harvard student handbook argue that it “emphasizes physical force when there are many instances when survivors are verbally coerced,” says Jessica Fournier, a freshman who is also a member of Our Harvard Can Do Better. The actual text reads: “Rape includes any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury” and “Indecent assault and battery involves any unwanted touching or fondling of a sexual nature that is accompanied by physical force or threat of bodily injury.”

Now, compare those definitions with the account in “Dear Harvard: You Win”:

He asked me to use my mouth. I said no. I was intoxicated, I was in pain, I was trapped between him and the wall, and I was scared to death that he would continue to ignore what I said. I stopped everything and turned my back to him, praying he would leave me alone. He started getting impatient. “Are you only going to make me hard, or are you going to make me come?” he said in a demanding tone.

It did not sound like a question. I obeyed.

It wasn’t sexual intercourse, and while she felt trapped, no direct “physical force” was applied or “threat of bodily harm” was explicitly stated. Under the current definitions, the student could potentially have a very tough case proving to Harvard administrators that she had been sexually assaulted, even though if we take her account at word, it seems like a personal and sexual violation.

It is little wonder then that the author of “Dear Harvard” describes being dissuaded from even bringing her case before the Administrative (Ad) Board, Harvard’s body “responsible for the application and enforcement of undergraduate academic regulations and standards of social conduct.” Resident tutors (graduate students and young professionals who live in the dorms under the auspices of providing professional and social guidance to students) and House Masters (senior faculty or administrative members who lead each dorm) were not wrong to advise her that the “charges would probably be dropped because my situation did not match the language of a 20-year-old policy.”

Yet, even though Harvard’s narrow definition of sexual assault made her case unlikely to succeed before the Ad Board, it is highly disturbing that a student was allegedly discouraged from pursuing the major campus channel of justice available. She writes:

When I told my House Master that I was considering an Ad Board process, I was told it was a bad time of the semester, that there would be consequences for my assailant anyway, and that we shouldn’t go through the process if it was going to be fruitless. Shortly after, my resident dean told me that my assailant couldn’t be punished because he didn’t know what he was doing…My House Master and my dean encouraged me to forgive my assailant and move on.

What exactly constitutes sufficient proof is complicated by the fact that the Harvard Ad Board relies on a standard of being “sufficiently persuaded” that a violation has occurred, regardless of whether the case involves cheating or rape. Not only is “sufficiently persuaded” problematic because it’s vague, it does not meet the Department of Education’s “preponderance of evidence” standard. Since 2011, the federal government has instructed universities to treat sexual assault allegations with a “more likely than not” standard of evidence, rather than the stricter “clear and convincing” standard. The “preponderance of evidence” standard is used in cases involving violations of civil rights, and since sexual assault on campus is considered a violation of Title IX protections, the Department of Education declared such cases should be treated this way.

Americans are raised to believe in due process and innocent until proven guilty, so a standard of “preponderance of evidence” may not sit well with people, especially when it’s in regards to accusations as serious as sexual assault. However, that is the current national standard for universities and Harvard is failing to live up to it under its current policy. This isn’t the standard for determining a criminal conviction but a violation of civil law.

Furthermore, anecdotal evidence suggests that Harvard is from over-punishing sexual assault cases even when they are brought before the Ad Board. Reina Gattuso, who is a junior at Harvard and reported for The Crimson on campus sexual assault, said that during her reporting, she spoke to three students who had experienced attacks on campus. “Of the three cases, two of the perpetrators weren’t punished at all. The third received a punishment from the Ad Board that was less than what students found guilty of cheating” in a government class that saw about 70 students forced to temporarily withdraw. (Harvard’s Ad Board was vague about the exact numbers and timing with this incident, too.) In her own article in The Crimson, Gatusso noted that between 2005 and 2010, eight cases of sexual misconduct were brought before the Ad Board; three resulted in perpetrators being required to temporarily withdraw but no one was recommended for permanent expulsion.

“I think people are very tentative when it comes to determining guilt in cases of sexual violence and rightly so,” says Gatusso. “But when you have a system working with cheating on a test but not delivering justice for victims of sexual violence, I think that’s a problem.”

Another piece complicating all of this is that the Harvard Ad Board is veiled in mystery. Students at Harvard are forced to keep their experiences with the Ad Board and certain administration officials confidential. Furthermore, according to their website, “All confidentiality obligations remain in full force even after the conclusion of any case.”

Although her case was not ultimately prosecuted by the Ad Board, the “Dear Harvard” writer indicates that she was instructed by the administration on the need to keep her case confidential. She states in her letter that “confidentiality rules prevent me from revealing most of what was—or was not—done to respond to my report. Ironically, if I were to reveal this information, I could risk getting disciplined.”

This is a common fear among students who come to the administration with cases of sexual assault.

Although Gattuso admits that the confidentiality agreement ay have been put in place to protect victims of sexual assault and others going before the Ad Board, she said that through her interviews with survivors she realized that the confidentiality mandate is both vague and intimidating. “When I was interviewing survivors last year, there was one young woman who had a really upsetting story and she encountered so many difficulties with administrators, but she was so terrified of institutional punishment for speaking out to let me feature her story,” says Gattuso. To her, the crux of the problem is that Harvard has created a culture where victims of sexual assault are “worried about retribution from the assailant, but really worried about retribution from the administration.”

Now, the college administration is considered by campus advocates as much a part of the problem with sexual assault as the assailants themselves. The school’s inactivity has disturbed students almost, and sometimes more, than the assaults themselves. As is the way of Ivory Tower bureaucracy, Harvard has been slow to respond to a student referendum from the fall of 2012 in which 85 percent of voting undergraduates asked the school to merely re-examine its sexual assault policies. While the administration subsequently formed a “working group” to “assess the resources that are already available, how we communicate them to students and what additional resources or communications might be needed going forward,” no concrete policy changes have been made.

When I attended Harvard a few years ago, the emphasis among women-focused groups was on promoting the importance of consent and creating a culture of sexual respect for women that was mainly focused on shifting the attitudes of male students. Now administrations themselves are becoming a bigger target, at Harvard and universities across the country. Victims and those who work with victims of sexual assault describe the pain as a one-two punch. “There is the issue of assault, but then there’s issue of administrative betrayal,” says Fox-Penner.

At the end of the day, though, what is so frustrating for campus advocates is that the Harvard administration appears so unwilling to admit there are any problems with their system for handling sexual assault. “Harvard has done a very good job of maintaining a strict line that their policies are adequate and that the information gap is the issue and that students are aware of the resources available,” said Fox-Penner.

Indeed, the only response I received from Harvard in response to my requests to speak to a representative of the university was a copy of a letter sent to undergraduates on the evening of April 1 from the Dean of Student Life, Stephen Lassonde. As the undergraduates I spoke with noted, the administration is quick to push the blame onto an unsatisfying, vague concept of “student community” and merely play up its current resources, without admitting a drop of responsibility for antiquated or insufficient policies.

Following Thursday’s announcement that students had filed the federal complaint against Harvard, President Drew Faust sent students an email in which she announced the administration will create a task force “that will develop recommendations about how Harvard can improve efforts to prevent sexual misconduct.” Faust stressed “we must do more than just meet our legal obligations,” though that statement presupposed that the school is, in fact, already doing that. While promising that the school appears to be somewhat responding now that a federal investigation may occur, it can also seem like too little too late.

“There’s a certain amount of shifting responsibility onto the community of students as opposed to really re-evaluating what role the institution had,” says Gattuso. “The salient thing for people I interviewed was ‘Okay, we can do all these things to build a community that supports consent, but I feel I’m not getting help from the administration at the level of justice and logistics.’”