Waiting on Affirmative Consent

The new sexual assault rules are a step in the right direction but do not go far enough.

After demonstrations on campus and promises by University President Drew G. Faust, Harvard University finally has a centralized sexual assault policy. For the first time, the standard of evidence in disciplinary cases involving sexual assault is “a preponderance of evidence,” rather than the previous, vague guideline that required Administrative Board to be “sufficiently persuaded” of guilt.

Changing the evidentiary standard has previously been a roadblock to action because of misplaced concerns that it could jeopardize due process. Yet the “preponderance of evidence” standard is the same burden of proof used in most civil cases, and the Department of Education’s Office for Civil rights has favored it as “the appropriate standard for investigating allegations of sexual harassment or violence.” Other sources have raised concerns about the rate of false reports, but a Department of Justice study showed that the rate of false reporting, as determined by police, hovers around eight percent. Meanwhile, over 60 percent of rapes go unreported.

There is little chance that the new evidentiary standard will cause scores of innocent students to be expelled from the university. Instead, it will facilitate the path to justice for survivors of sexual violence.

Conspicuously, the new policy makes no mention of affirmative consent. Affirmative consent—which is a standard used by many of our peer institutions—should be our standard as well. The University should continue to adjust its policies until it is clear that only “yes” means yes.

As important as it is for Harvard to actively support survivors in the awful event that a sexual assault occurs, it is even more important to stop sexual assaults before they happen. Beyond updated policies for prosecuting offenses, the University school should further develop preventative practices. These should include more frequent bystander intervention training, so that fewer men and women at Harvard have to suffer the trauma of sexual violence during their time here. All the policy changes in the world will not be effective unless we can also reinforce a positive, safe campus culture. That requires support from everyone on campus, from victims to friends to bystanders.

The addition of “preponderance of the evidence” and the prospect of “affirmative consent” both come down more severely on accused assailants. It is our hope that students respond to the University’s new stance by being ever more conscientious and ever more vigilant. Now that the stakes are higher—and we certainly believe that they should be—we hope that the policy will deter potential assailants in all of Harvard’s schools from making mistakes that ruin the lives of themselves and of others.

Harvard has an especially important role to play as a leader among higher education institutions. We hope that the University can use its reputation to set a positive example for other institutions. Ultimately, it will take more than the work of one school to change the culture of disrespect that catalyzes rape in many sectors of our society.

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