Wednesday, December 31, 2014

Consent

[I started writing this months ago, before Harvard's settlement yesterday. It seems like now's a good time to post.]


In response to growing concern about campus sexual assault (and pressure from the government), many colleges and universities around the country have started to implement new sexual assault policies. Some of these policies focus primarily on consent. For instance, California state schools now follow the "yes means yes" standard for consent, meaning that consent must be affirmative for it to be consent.  This doesn't mean that consent requires a written statement or even a verbal yes, but it does mean that silence or impairment does not constitute consent. This is important, obviously, as alcohol consumption has continually been used as an excuse for sexual assault.  

But are regulations around affirmative consent enough? Probably not.  Harvard University's new Title IX policy (adopted by most Harvard schools, but not Harvard Law), for example, does not define consent. In fact, the creators of this policy believe the definition of affirmative consent is too narrow. In other words, it is not enough to just consider consent, as it is defined above, when investigating sexual assault cases. Silence or impairment does not constitute consent, nor does it constitute rape. A verbal yes does not constitute consent when you have been manipulated. Therefore, defining consent as a way to determine what constitutes rape is not sufficient. Alternatively, not defining consent gives victims of sexual assault more power. Some would say too much.

Harvard Law professors took issue with the university's new policy because it contradicted basic legal principles, in their opinion.  According to these professors:
“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused... [the rules are] starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues involved in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.” [Boston Globe]
Though a bit backwards, these professors do bring up a good point: sexual assault cases are complex. And for there to be real progress, we need to address these complexities. Now, I am in no way defending Harvard Law School. Judging by that quote alone, they seem to want to blame it on the alcohol. However, I do think that most of the policies institutions are now creating are weak. I commend colleges and universities for finally making strides to prevent sexual assault. (And I'd like to really emphasize finally here, since this has been an issue for decades and only now are we starting to address the problem.) But are they really trying to prevent sexual assault? Or are they just creating policies so that they can show they are investigating sexual assault, re-actively, and get the media off their backs?

Whatever those law professors believe, Harvard is moving in the right direction by getting away from focusing on consent when considering sexual assaults. Because the problem isn't consent, it's culture. The solution, then, is not to just define consent--it's to create an environment in which sexual assault is condemned, in which people are taught how to respect others and cultivate meaningful, safe relationships. It requires comprehensive sex education, including conversations about sexual entitlement, for both boys and girls. Most importantly, it requires a cultural shift well beyond college campuses. 

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