Why Harvard’s New Title IX Policy Is Still Not Enough

In response to multiple complaints filed with the Office for Civil Rights, a heart-wrenching personal account of sexual assault on campus, and a formal Title IX investigation, Harvard released its new sexual assault policy on July 2. A collaboration of a policy task force and its freshly appointed Title IX officer, Harvard’s new policy is evidence of progress in many ways. Its overt inclusion of sexual orientation and gender identity in its gender-based harassment clause is one important distinction, as is its shift to the “preponderance of the evidence” standard. While both of these changes mark progress in Harvard’s approach to sexual assault, the lack of an affirmative consent requirement is disturbing.
Affirmative consent is the idea that consent to sexual activity cannot be given without verbal, conscious, and voluntary agreement. It is the core of California’s recently drafted sexual assault legislation, and, according to many progressive and student activist groups, is essential in creating an effective and meaningful sexual assault policy. Yet Harvard has ignored the voices of groups such as Our Harvard Can Do Better and conspicuously excluded this standard of consent from the new policy. The policy replaces affirmative consent with a standard of “unwelcome conduct of a sexual nature”—a vague, and wholly unsatisfying, brush with what it means to be a victim of sexual assault.
To include a standard of affirmative consent would admittedly push the boundaries of our society’s understanding of sexual assault. But in a culture where nearly a fifth of women and one in 71 men are victims of rape, and where more than a third of these assaults take place on college campuses, it’s clear that our current approach to sexual assault simply isn’t working. Sure, the new policy is evidence of some progress, but it ignores perhaps the greatest fallacy in our understanding of sexual assault: a person does not need to say “no” to be a victim. To suggest such a thing, which Harvard does by excluding a standard of affirmative consent, is to suggest that a victim of sexual assault is responsible for trying to prevent the crimes committed against them, in a form our society can accept, before being treated as the victim of a crime.
This attitude towards sexual assault victims is unique to the crime—no one would ever demand a mugging victim validate their attempts to prevent the mugging from happening—and is perhaps one of the biggest reasons why it remains such a pervasive and poorly addressed crime. A standard of explicit consent is not too vague. It does not set the standards too low for what constitutes a sexual assault. Sexual encounters do not have “grey areas.” They verbally, consciously, and willingly agree to sexual activity—or they do not. Given that more than half of sexual assaults go unreported, and less than 5 percent of rapists are ever convicted, why does affirmative consent raise so much concern that the definition for what constitutes an assault will be too broad? Why, amidst discussion to expand the rights of the many unheard victims of sexual assault, are we still so cautious to protect its perpetrators?
Perhaps if Harvard had included an affirmative consent standard in its new policy, there would have been some backlash. There probably would have been at least one article warning that under such a policy, anyone could be considered a rapist. Some might legitimately fear being falsely accused of rape or sexual assault. But these are the very myths surrounding sexual assault that Harvard’s new policy should have addressed. An explicit standard of consent would not lead to a thousand pointed fingers, nor an abundance of false reports. But it would force students to re-think their approach to engaging in sexual activity as a responsibility rather than a given, and create an environment absent of expectations for assault victims. It would be a step—a real one—towards addressing the misperceptions surrounding a violent and damaging crime, by protecting the victims rather than the assailants. So yes, Harvard, we can still do better.