On April 13, 1999, the Harvard Faculty voted to dismiss Joshua M. Elster, class of 2000. After over a year of legal and academic proceedings and extreme public humiliation, he was told to get out. He was convicted of one of the most serious, and common, crimes on campuses across America—rape.
Elster was arrested on two counts of assault and battery and three counts of rape on Jan. 31, 1998 for actions he had committed on a date with a fellow undergraduate a few days earlier. In February, a Cambridge grand jury indicted the Kirkland House resident on these five counts, as well as an additional sixth count of indecent assault and battery due to the sexual nature of the offense.
For months, Elster maintained his innocence. The Crimson reported that defense lawyer Kenneth F. D’Arcy ’58 contended the alleged victim invited Elster to her room on a date on Jan. 28. He said they did not have definite plans for the evening. D’Arcy said they spent an hour or two together—during which time they had sex—and then Elster left the dormitory. “They left on happy terms,” D’Arcy said. “Everything that was done was completely consensual.” Even Dean of the College Harry R. Lewis ’68 and Assistant Dean of the College Karen E. Avery ’87, in a letter to the editor, were hesitant to label the allegations as “date rape.”
By Sept. 1998, however, it was a different story. On Sept. 9, Elster pled guilty in Middlesex Superior Court, and details of the case were at last revealed. On that January day, Elster had struck the victim across the face and raped her. Her roommates had taken her to University Health Services after they found her crying in the bathroom. The victim—who by law has the right to stop prosecution at any time—decided not to take the case to court. Elster was sentenced to three years probation, during which time he was forced to stay away from Harvard and the victim.
At the time, The Crimson reported that Elster was the first Harvard student to be charged and convicted of rape. The sentence of dismissal, as well as Harvard’s handling of the incident, forced a debate on the efficacy of administrative policy on date rape that continues to this day.
The Elster case prompted HUPD to improve reporting of instances of sexual assault. HUPD’s old recording system had tagged the report “confidential” and left it out of the blotter—the daily log available for public inspection. Under the new system, sexual assault reports must be listed in the blotter.
In the aftermath of the case, the Harvard community also witnessed the creation of the Coalition Against Sexual Violence (CASV), by Kaitlin S. McGaw ’00, Brina Milikowsky ’00 and Jennifer L. “Orchid” Pusey ’00 to enhance rape awareness at Harvard. Because of their efforts, incoming students in the fall of 1998 received lengthier and more detailed sexual harassment briefings from rape crisis professionals than students had before. In Feb. 1999, after studying Harvard’s resources for assault victims compared to those at other schools, CASV sent a list of demands to the administration as well as a report to members of the national press. Above all, they pushed for the creation of a women’s center to centralize prevention and counseling services. The center remains a dream yet to be realized, but CASV’s other requests have met with some success. The Sexual Abuse Sexual Harassment (SASH) advising system was adjusted to supplement tutor training.
Yet even with these improvements in rape awareness, hearsay about the Harvard administration’s response to rape abounds. Rumors have floated around campus suggesting that victims can only take their cases to the Ad Board or to the criminal justice system, not both, or that rapists will never be asked to leave, and that the victim must live with her attacker following her around campus. None of these is true. The Ad Board’s response to rape at Harvard is as follows:
If a student is raped, he/she may prosecute through both the Ad Board and the criminal justice system. The Ad Board recommends that he/she go through the criminal justice system first for two reasons. First, the statement he/she makes for the Ad Board can be subpoenaed by the prosecution and manipulated and used against him/her in the criminal investigation. Second, because the Ad Board essentially only uses the statements of the people involved, the criminal justice process is likely to be more thorough and more accurate, therefore providing the Ad Board with more concrete evidence to evaluate the case. If the victim chooses to go through the Ad Board first, he/she may. If he/she does so and then wishes to go through the criminal justice system in the middle of the Ad Board case, the Ad Board will freeze its proceedings until the case has gone through the criminal justice system. While criminal charges are pending, the accused may be asked to take an involuntary leave of absence until a verdict has been reached so that the victim does not have to be confronted with the accused while he/she is at school.
Recently, Avery and David B. Fithian, assistant dean of the college, have tweaked the policy to streamline the process. Instead of assigning a subcommittee of the Ad Board to investigate allegations, the policy allows for one person to be assigned to a case. This will hopefully encourge the Ad Board investigations to be more focused and will prepare the system for the introduction of independent investigators. Avery says the eventual hope is that someone outside of the College with legal experience will be assigned to work on these cases.
Harvard’s policy on what constitutes a sexual crime is based on Massachusetts state law. Because it states that a drunk person cannot legally consent to sex, any sex while the female party is drunk is legally rape. However, neither the Massachusetts courts nor the Ad Board adhere to this rule. Avery gives the example of a married couple. If a husband has sex with his drunk wife and she consents, Avery explains, few courts will call this rape. These types of situations blur the rules, however, because 95 percent of date rape cases involve alcohol. Whether or not the victim can actually consent, then, becomes ambiguous, depending on how drunk she actually is.
If the Ad Board finds a student guilty of rape, he will most likely be required to withdraw with a recommendation to be dismissed. The Faculty of Arts and Sciences votes whether or not to accept this recommendation.
According to the Handbook for Students, in order to be readmitted after being required to withdraw, “the student ordinarily must have been away from the College for at least one but ordinarily two or more full terms and must have shown an acceptable record of performance during a substantial period (at least six consecutive months) of regular employment.” Dismissal is significantly more serious; it “does not necessarily preclude a student’s return, but readmission is granted rarely and only by vote of the Faculty.” Expulsion is the only punishment more grave than dismissal.
Avery explains the difference between the two. “My understanding is that expulsion has only been used in the case of someone who falsified admissions materials to the extent of saying that they are someone they are not. Therefore, that false person was expelled because they never really existed. Dismissal is just as extreme an action in terms of severing someone’s ties with Harvard, and though the text in the handbook makes it seem like a dismissed student could possibly return, that really wouldn’t happen in all likelihood.”
The Ad Board began trying rape cases in the 1970s when women started to bring cases to the administration. At that time, there had been two separate Ad Boards for Harvard and Radcliffe Colleges. Fithian speculates that before the women’s movement of the 1960s and 1970s was a time of a “different culture,” and that women “weren’t as likely to come out about problems of this nature [because they] used to see [rape] as their responsibility.” The administration’s involvement with the policy was more a result of students coming forward than the Ad Board seeing rape as a more pressing issue. In fact, the Ad Board did not develop an official policy on rape until 1992.
Previously, the administration dealt with rape in the same way theft is dealt with now. Though, currently, there is no explicit policy on theft, students accused of theft will still go through the Ad Board and be punished on a case-by-case basis. Before 1993, rape was handled in a similar manner.
While students accused of rape would most definitely go through the Ad Board for trial and punishment, there was no set policy in the Handbook that addressed rape at Harvard. Instead of going through a pre-established process, incidents were handled individually. Although Harvard has increasingly responded to the issue of rape over the past few decades, some say the university can still do more to protect its student body.
After Dean of the College L. Fred Jewett ’57 and Assistant Dean for Undergraduate Education Jeffrey Wolcowitz expressed dissatisfaction with the Ad Board’s handling of date rape charges, a Date Rape Task Force was formed in 1990. Consisting of students, faculty and administrators, the group reviewed Harvard’s policies on sexual misconduct. Over the following two years, their recommendations brought about new guidelines for the Ad Board’s handling of rape cases, including allowing victims to plead their cases in person before the Ad Board.
The Task Force’s definition of rape, however, was rejected. It wished to define rape as any act of sexual intercourse occurring without the expressed consent of both parties in order to shift the focus of investigations from the victim to the perpetrator; the Ad Board instead favored a definition relying on expressed dissent. Also, the Task Force had supported the formation of “peer-dispute subcommittees,” but the Ad Board rejected this attempt to include students in investigations.
While adopting some of the Task Force’s accepted proposals, the Ad Board took measures to prevent interaction between the accuser and the accused. One of the last recommendations adopted by the Ad Board was a requirement that both parties write independent initial statements before the case is deliberated. “I think it’s a cleaner situation and less likely to cause misunderstanding,” Virginia L. Mackay-Smith ’78, then assistant to the dean of the College, said at the time. “The Task Force convinced us that the student bringing the charge needs to play a larger role.” In the summer of 1992, a federal law went into effect, demanding universities develop sexual assault policies, including rape awareness programs. The Ad Board’s policy predated this law.
The student reaction to the Elster case was a mixed one. Some questioned the victim’s decision not to take the case to trial; others questioned Elster’s seemingly light sentence. It was the response of the Harvard administration, though, that caused the most impassioned campus-wide debate.
One year after the incident, the Ad Board, after ruling that the rape had indeed occurred, recommended that Elster be dismissed rather than expelled from Harvard. A dismissal, by definition, would permit him to reapply for admission after five years.
It was the same situation that concurrently faced another student, D. Drew Douglas, class of 2000, of Mather House. Douglas had sexually assaulted an undergraduate the previous spring, pled guilty to indecent assault and battery and received probation for five years. Douglas, like Elster, was dismissed rather than expelled.
Backing up this rationale was current Secretary of the Faculty John B. Fox Jr. ’59, the Dean of the College and Chair of the Ad Board in the 1970s. Referring to all male undergraduates facing allegations of rape, at the time, Fox explained, “The young man made an error, but it wasn’t a calculated error.” He added, “This is a perfectly decent young man, and he should graduate some day.”
A Crimson editorial from Feb. 1999 expressed the outrage a portion of the student body felt. “Expulsion and dismissal are both rare events at the College, with expulsion used mostly for admissions fraud cases and dismissal having been approved only 12 times in the last 40 years. Students who commit rape, a violent crime, should be included in those rare incidences of expulsion. If not this, what does it take to get kicked out of here?” The Crimson wrote.
Elster’s victim finally spoke out in a Feb. 1999 interview with Perspective, voicing her dissatisfaction with Harvard’s line of reasoning. “The way I think about it is, that when the administration doesn’t expel the person who raped me, my safety and my welfare doesn’t amount to a hill of beans. If Harvard is so concerned with their [sic.] name, then why do they have a student who raped another student?”
Harvard rushed to its defense, somewhat unsuccessfully. In an odd analogy some found to be offensive, Lewis and Avery likened expulsion to the death penalty. Perspective reported that Avery wrote, in an e-mail to one of the victims, “I learn to think of it in terms of capital punishment where expulsion is the death penalty and dismissal is life imprisonment and I hope that you’ll come to see it that way.”
Though the Ad Board has taken steps to curb the incidence of sexual violence and provide resources for victims, many feel there is much more to be done in the name of safety. Sexual violence-related student groups aim to transform Harvard into what CASV member Sarah B. Levit-Shore ’04 calls a “community of support,” which combines abundant University resources with good mental health counselors and an effective Ad Board procedure. A more comfortable atmosphere, she reasons, will help reduce the number of unreported cases, raise campus awareness and help women identify what qualifies as an incident of rape. “A woman has to know that she will be believed and that people won’t make fun of her in order to come forward. People have it in their minds that girls make this stuff up,” Levit-Shore says.
“There’s no general institutionalized way to cut down on a victim’s fear of some kind of reprisal. The bottom line is that we need massive administrative and peer support,” Kirkland House SASH Tutor Sharrona Pearl says.
Educating the Harvard community about rape and sexual violence dominates reform plans. CASV is pushing for mandatory rape education for first-years by professionally trained counselors, not just peers, as well as periodic education throughout the college years.
Currently, Harvard’s resources tend to target female victims of sexual violence, a method which Harvard University Police Department officer Amy DiVirgilio says is only eliminating half the problem. DiVirgilio believes that at least 75 percent of the 90 percent of rapes that are perpetrated by someone the victim knows are preventable by education. “So many guys have told me that a lot of girls just say no because they’ll feel like a slut if they say yes right away,” she says. “We need to have a set block on sexual assault education for both men and women and [make them aware] of the situations and consequences.” DiVirgilio is currently the lead instructor for the HUPD-sponsored Rape Aggression Defense (RAD) course, which aims to give women the knowledge and confidence to prevent sexual assault. “When Harvard first offered the classes about six years ago, they weren’t very popular at all. But now, hundreds of people are interested,” DiVirgilio said. “People don’t really think about what could happen to them, but after they take the classes, they know what could happen and how to deal with it.”
Another resource for students is Response, a peer counseling group that encourages both male and female survivors of sexual assault to call in for support and information about the issues. “Education needs to be both preventative and aim survivors to get more help if they need it,” reasons a Response co-director, who cannot release his/her name due to rules that preserve the privacy of individuals who turn to the program for support.
Rape awareness advocates hope that increased education will enable people to identify what exactly rape is and what counseling resources and legal options are available. “I don’t think women are quick to identify date rape drugs, especially if it’s alcohol. They’re more inclined to just say they got really drunk, and then this thing happened that they didn’t want. Knowing more about what options they have and realizing that it wasn’t their fault would help survivors feel much more comfortable about coming forward,” Radcliffe Union of Students (RUS) President Natalia A.J. Truszkowska ’04 explains.
CASV, along with several students and student groups, also feels that changes in resources are important in order to create a “community of support.” CASV’s highest priority is to establish a trained “impartial advocate” as a centralized name to call directly after an incident of sexual violence. This impartial advocate would inform the victim of her options, explain the Ad Board procedure, suggest other campus resources and provide counseling. Currently, CASV argues, Harvard provides several resources for students looking for guidance on issues of sexual violence, but the system can be unpredictable, because not all of the “first contacts” currently are fully trained in counseling on issues of sexual assault, and some have conflicts off interests because of their involvement in a student’s academic life. “The simpler you can make the process and the higher quality of resources you offer, the better,” Levit-Shore says. “If you centralize a single informed resource, the survivor doesn’t have to go searching for options, and runs less of a risk of slipping through the cracks.”
Response takes the role of the informer and counselor, both explaining the Ad Board procedure to each individual case and providing peer support. “We have a huge amount of information we can provide to people and we can point them in the right direction, but it does seem like it would be helpful for there to be a more centralized resource,” the same Response co-director admits.
CASV also calls for reforms in the way in which cases of sexual violence move through the Ad Board. The current procedure, according to Levit-Shore, is somewhat inefficient and overly difficult. A major conflict of interests arises when a victim’s senior tutor or dean is involved in the process. “It’s not fair that academics and this very personal situation crash into one another. Someone who will write letters of recommendation for you later in life shouldn’t be so closely involved in a situation like this,” Levit-Shore says.
In addition to keeping the Ad Board process more private, Levit-Shore believes that Ad Board members should be more professionally trained about sexual violence issues in order to make the process less subjective. She also complains that the process usually takes much longer than the six-to-10 weeks that the Ad Board claims it will, and the Ad Board’s recommendation to victims that they not speak to anyone about the process makes them feel very alone.
“They say at Harvard no one holds your hand. This creates a feeling of having no support system. It can just feel like no one’s on your side,” Levit-Shore laments.
Avery, however, speaking on behalf of the administration, states her belief in the effectiveness of Harvard’s rape policy. Last year, three rape cases went before the Ad Board, and in all three cases, the accused was required to withdraw with a recommendation for dismissal. All three students were dismissed.
At the Safe Community meeting for freshmen this year, Avery warned students that they should be wary of final clubs, where upper-class male students may try to take advantage of younger females, using alcohol or other date rape drugs to lower their inhibitions in order have sex with them. Dean Avery insists that this announcement does not indicate that the clubs have been accused of using date rape drugs, or of having a recent increase in sexual assault. “We were not trying to single [final clubs] out in any way, and we were quick to note that rape can and does happen in many places around Harvard,” she explains. “We simply wanted to raise freshman awareness to some of the potential dangers that have been reported in regard to final clubs.”
Final clubs are traditional Harvard establishments consisting of male upperclassmen who have lunches, dinners and parties, or just hang out, in spacious houses around the Square. Members mainly go there at night to drink and party exclusively with other members. However, females and close male friends sometimes will be permitted to join the festivities. Since these buildings have limited capacities and graduate boards worry about the liability involved in distributing alcohol to students, there are strict rules on who may enter. Women and non-Harvard males are often given the privilege, while non-member Harvard males are not. At some clubs with openly gay members, other gay male students are also allowed entrance.
Due to their male-only membership policy, final clubs are not officially recognized by Harvard as student organizations. But they fulfill a classic campus role, that of fraternities. So, while they provide social outlets for a sizable portion of the student body, many freshmen—and other students—are unaware of the circumstances under which they operate. Although it is unfair to label final club members as the sexual predators of the Harvard campus, the issue of rape and sexual assault cannot be fully explored without talking about these institutions.
Special treatment of female students makes many members of the Harvard community suspicious of the motives of final club members. Encouraging female students to drink in a male-dominated establishment may create a threatening dynamic for a woman who does not know how to handle her alcohol or keep herself out of uncomfortable situations; even those who do may find themselves in trouble regardless of their college social life street smarts.
Truszkowska feels that more steps should be taken to inform students, especially freshmen, of the vast possibility for sexual violence at final clubs. “The issue of final clubs and sexual safety is inextricable. When I was a freshman, I didn’t understand that final clubs are not under University protection, and this gives them a lot of leeway. It creates a very dangerous position for women, especially freshmen, who don’t understand exactly what they are,” she says.
According to Truszkowska, the common final club practice of only letting women through their doors separates girls from the men they trust and puts them in the company of strangers, sending “the message that you are being desired as a woman. The idea of an elitist organization of all males puts forth a huge power dynamic,” Truskowska opines. “It’s like they’re telling you, ‘You’re in my house, partying with my friends, my boys. This is my territory, and you’re on it. This creates an attitude of thankfulness, a feeling of ‘I’ve been selected.’ There’s an idea of living up to the fact that you’ve been selected,” she continues.
Spreading awareness of the final clubs’ atmosphere might help women prepare for and better deal with what they will find at final club parties. “While not all guys in final clubs are rapists, and not all rapes happen at final clubs, they definitely do create an atmosphere where your chances of sexual assault are increased,” Levit-Shore says. “However, final clubs are not the end of the story; sexual assault is not limited to any one social setting or any one race, gender or class. While taking precautions, like sticking with a group of friends and always watching your drink are important, people have to understand that you can do everything right and still become a victim of sexual assualt.”
However, simply because final club members may drink with women in a fraternity-like situation does not make these students rapists. One member comments, “I think that anyone who walks around our guest area can see that the myth that final clubs are bastions of misogyny is just that. Basically, it’s a very open atmosphere and most of the girls hanging out are our friends and blockmates. Do we perpetuate other stereotypes like being drunk on the weekends? Sure. But I think that it takes a specific kind of person to disrespect women in such a profound way like sexually assaulting them. I’d like to think that not only my club, but all clubs are above that. Things might happen, but it’s a few dirt bags giving us all bad names.”
Some female students are very much in favor of final clubs, believing that they are a central pulse to social life at Harvard, and without them, there would be little to do on the weekend. Helen C. V. Estabrook ’03 says, “I feel extremely comfortable at a few final clubs simply because most of the guys there are friends of mine. I know that if anything sketchy happened—which [it never has]—I would be able to find people—both guys and girls—to help me out. I come from a town where fraternities are rampant. The University of Illinois has the largest Greek system in the entire nation, and I absolutely refuse to go to parties there. I just feel as if the guys will only be nice to you if they get something in return. I also feel like the social scene is a lot smaller here than at a big university with lots of frats, so even if I don’t know the guys in a club, I will have a friend who will. I really can’t say that I’ve ever felt uncomfortable—as far as the question of rape or sexual harassment goes—in a final club. That doesn’t mean that I think they are amazing, upstanding institutions—I just see them as places where my guy friends hang out.”
Another female student, R. Lane Koster ’03, has mixed feelings: “The only time I’ve felt even remotely sketched out was at the Club Fly party last year. It was a dance club theme, so it was your general meat market scenario: lots of alcohol, lots of bass, cheesy black light, lots of scantily clad chicks getting in touch with their inner exhibitionist on the dance floor, lots of guys standing on the sidelines picking out that evening’s prey…It was a semi-pseudo-predatory atmosphere, but it felt too staged to be threatening. Frankly, it was pretty hurtin’…I guess the only other time I felt things were a little suspect was at a club where they pulled the ole pre-mix-in-a-cooler gag. It was total suicide punch; just inhaling its toxic fumes made my head swim… So, yeah, of course girls need to be careful when they go to final clubs, because call ’em what you want, they’re frats. Just because they’re private clubs for Harvard boys doesn’t mean that they’re classy or that the members aren’t complete assholes. A guy’s wealth or status has no bearing on his moral character. A horny frat boy is a horny frat boy. So pour your own drinks.”
Among students, Harvard’s policy concerning alcohol and rape fields various responses. Almost all feel that the policy, which states that a woman who has been drinking is not able to legally make consent, is justified, but some feel that it, in Shore’s words, “screws guys over.” “In an ideal world, it’s both parties’ responsibility, but the responsibility as a matter of practice rests more in a male’s hands. If the policy stops someone from engaging in something that his partner hasn’t consented to, then it’s not an unfair or inappropriate burden for men to bear,” Benjamin T. Siracusa ’03 says.
Though not denying the validity of the policy, Nicholas A. Shiftan ’04 makes a case for the male’s position. “It puts [men] in an unfair, uncomfortable, unnatural position. It’s unnatural to not expect drinking and sex to happen in the same context,” he says. The nature of the policy gives women the benefit of the doubt, which inevitably raises the possibility of men being wrongly accused, he adds.
Pearl, the Kirkland SASH tutor, says that she firmly believes that without consent, sexual activity is rape. “But women still have a responsibility to support themselves and their peers. Don’t go into an uncomfortable place on your own, and take precautions not to drink so much,” Pearl says.
At the same time, she says the current Harvard policy is fair to men. “I’m not saying that the rape is in any way [a woman’s] fault, and yeah, it’s a tough responsibility for men to bear, but I’m sorry if a guy can’t hold off on having sex with a girl who’s so drunk she can’t see straight. Some people might think it’s unfair to guys, but it’s so incredibly unfair that women have to be so careful,” she continues. “Many men feel that it’s a grave injustice, but it’s the kind of hyperbole we need because so few women report their incidents. If a slightly unreasonable rule allows victims to recognize their incident as rape, then that’s great,” Truskowska says.