Burden of Proof

In a year when the Faculty voted to require more evidence before the Ad Board would investigate sexual assault complaints, the University itself has been forced to prove its case.

“You have to be somewhat realistic in terms of the power that we do have and that we don’t have,” she said earlier this year. “It’s a hard nut to crack.”


The Leaning committee cites studies in its report that say 55 to 80 percent of sexual assault victims and 26 to 55 percent of perpetrators had been drinking.

Jane says the Ad Board subcommittee questioned her about how drunk she was, focusing on how she could remember the sexual assault-and climb the stairs to get to Dave’s room in the first place.

Jane says she thinks the Ad Board’s apparent interpretation of the law presents a catch-22.


“If you’re ‘incapable,’ you don’t remember anything,” she says. “If you remembered stuff, you couldn’t be ‘incapable.’”

“They’re saying I was able to express my unwillingness, so I should have pushed him off of me, punching and screaming instead of lying there comatose,” she says.

In many of the sexual assault cases that come before the Ad Board, one or both of the students were intoxicated at the time of the incident—a factor that further complicates the process.

The Handbook for Students defines sexual assault as “any act of sexual intercourse that takes place against a person’s will or that is accompanied by physical coercion or the threat of bodily injury. Unwillingness may be expressed verbally or physically. Rape may also include intercourse with a person who is incapable of expressing unwillingness or is prevented from resisting, as a result of conditions including, but not limited to, those caused by the intake of alcohol or drugs.”

Fithian says it is difficult for the Ad Board to determine how much a student was under the influence of alcohol—and therefore difficult for them to conclude a case based on their speculation about the level of drunkenness considering factors like body weight or how much a person had eaten that day.

“How do you measure how drunk someone was at this moment and then an hour later?” Fithian says. “Someone could encounter someone at midnight and they could seem fine, but half an hour later that person could be in a very different place.”

The link between alcohol and sexual assault is one that must be further examined, says Benedict H. Gross ’71, who will become dean of the College in July. Gross plans to make studying the problem of excessive drinking one of his main initiatives as dean of the College over the summer and in his first year.

Professor of the History of Science Everett I. Mendelsohn, a member of the Leaning Committee, said in an April 30 Faculty Council meeting where the Leaning recommendations were discussed that conditions—like excessive drinking—that lead to sexual assault must be addressed.

“We must address the issue of rape, but we also as a community have to deal with the problem of alcohol more seriously,” he said. “There is need for further investigation in the Harvard community to see just how much we need to do about it.”