Rape Happens at Harvard

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.

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