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A student’s anonymous letter, ‘Dear Harvard: You Win,’ and a law lecturer’s stinging follow-up underscore why Harvard must fight fiercely for affirmative consent.
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Last week, Slate published an article by Katy Waldman about a Harvard student’s anonymous letter to the school’s administration that appeared on March 31 in The Harvard Crimson. The upshot of the letter was that “Anonymous” has given up on asking Harvard to address a sexual assault she suffered on campus in 2013. Waldman’s piece opens with the following summary:
The letter, from the alleged victim, opens, “Dear Harvard: You Win.” What has Harvard won? After nine months of resisting this student’s pleas for action, validation, and empathy in the wake of what she says was sexual assault, one of the best schools in the world has won her surrender. She’ll stop requesting that her alleged assailant be moved to a different dorm. She’ll stop sending emails to “my resident dean, to my House Master, to my Sexual Assault/Sexual Harassment tutors, to counselors from the Office of Sexual Assault Prevention and Response, to my attorney.” She will dutifully swallow the pills her doctors have prescribed to combat the depression and anxiety disorders she’s developed, move away from her “blockmates and favorite tutors” to a new residence, and allow campus life to resume as normal for everyone but her.
The difference is huge when it comes to presumption. Affirmative consent places responsibility squarely on the aggressor and removes it from the victim.
The Slate article also revealed some surprising details about rape and campus sexual assault policies. First, Waldman cites an article in PolicyMic that identifies Harvard as the only Ivy League school that has not yet adopted a policy of “affirmative consent,” which redefines sexual assault from intercourse that takes place with a no to intercourse that occurs ”in the absence of enthusiastic verbally or physically expressed consent.” This may seem like a distinction without a difference, but the difference is huge when it comes to presumption. Affirmative consent places responsibility squarely on the aggressor and removes it from the victim.
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The letter itself is haunting, as Anonymous describes how Harvard’s outdated policy (circa 1993); an investigation and complaint process that, as a result of that policy, would likely result in her assailant being cleared; insensitive administrators and counselors poorly educated on sexual assault and how to speak to victims; the school’s refusal to transfer her assailant to another residence; and worst of all, feeling invalidated after she had been violated.
There are few things more disempowering than being sexually assaulted. You suddenly and unexpectedly find yourself in a situation where someone else—perhaps someone you trusted or loved—claims absolute authority over your body. You are desperately trying to have your voice heard and to assert control over what is being done to you, but are systematically shut down until you are forced to simply wait for it to be over. In that context, being practically denied the right to decide what you want to do with your story, being told that something with the potential to be as empowering as prosecuting your assailant is unlikely to result in any action, being denied several requests that you think will help you heal—those things truly make you feel hopeless, powerless, betrayed, and worthless.
Seeing how your school officials refuse to validate how upset you are over and over again is equally damaging.
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Rosenfeld defines the second rape as “the experience of degradation and betrayal that rape survivors encounter when they come forward seeking justice.”
A follow-up piece in the Crimson by Diane L. Rosenfeld, a Lecturer on Law and the Director of the Gender Violence Program at the Harvard Law School, picked up on the invalidation point and is pointedly titled, “Schools Must Prevent the ‘Second Rape.’” Rosenfeld’s premise is simple. “Harvard doesn’t ‘win’ unless and until it protects its students from sexual assault,” and at the second oldest school in the country—where the classics were taught to early colonists—the administration surely understands the meaning of a “pyrrhic victory.” Rosenfeld defines the second rape as “the experience of degradation and betrayal that rape survivors encounter when they come forward seeking justice.”
Rosenfeld also adds a layer of legal context to sexual assaults that occur on campuses, explaining that in addition to being crimes they are violations of civil rights.
Sexual assault on campus, we are coming to realize, is not merely a matter of isolated criminal behavior; it is also a civil-rights issue. Sexual harassment in an educational context, like sexual harassment in the workplace, abridges the civil right to be free from a hostile environment. Sexual assault is a particularly severe form of sexual harassment; its presence has been recognized to constitute a hostile environment under Title IX.
To prevent or eliminate a hostile environment of this sort, schools are legally obliged to do three things. First, they must provide educational programs aimed at preventing rape. Second, they must provide academic accommodations and support to enable survivors of sexual assaults to stay in school and retain equal access to educational opportunities. Third, schools must investigate promptly and remediate equitably any claims of sexual assault.
Why is understanding that sexual assault is a civil rights violation so critical to the way a school handles the situation? Rosenfeld explains that, “It is critical to remember here that it is a civil right violation being investigated, even though the underlying violation might also be a crime. This makes it much easier for schools to sanction gender-based discrimination and eliminate a sexually hostile environment on campus.”
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“Let them write it,” he boomed, in his deep, thundering voice. “If they write the contract, and we have a disagreement, the presumption will be in our favor.”
Legal arguments and suggested solutions aside, the presumption issue in the affirmative consent policy stands out for me. I remember the first time I entered into a partnership with a vendor that had huge implications for the publishing company where I was Executive VP and responsible for legal affairs, under the tutelage of the chairman, who had a J.D. and a photograph memory for his law books. We were about to hand over the development of our entire electronic publishing business to a software provider, and we needed to put a five-year contract in place. I had started outlining it when the chairman told me to stop. “Let them write it,” he boomed, in his deep, thundering voice. “If they write the contract, and we have a disagreement, the presumption will be in our favor.” He explained that the law presumes a contract’s terms to be favorable to the writer, and he wanted us to have the advantage of presumption in the event of a dispute.
If the onus is on the victim to have said no, the presumption of a sexual assault policy favors the aggressor, who is not required to seek consent, can assert that no “no” was given, and can offer numerous reasons why he or she believed consent was implied.
If, on the other hand, the onus is on the aggressor to establish consent, the presumption favors the victim, who need only make it clear that consent was not asked for or not given.
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Sexual assault does not always or even usually fit the stereotype of a brutal rape in a dark place by a Neanderthal with a gun or knife.
The fact that Anonymous is a student at Harvard, which presumably does not admit brutes, should not be lost on readers. It cannot be emphasized enough that sexual assault does not always or even often fit the stereotype of a brutal rape in a dark place by a Neanderthal with a gun or knife. Sexual assault happens in all socio-economic circles, primarily between people who are familiar with each other, any time a person’s boundaries, rights, and body are violated.
On the positive side, Waldman notes that “thanks to student advocacy,” the language of Harvard’s policy is currently “under review. ” But Anonymous is not the only one with a grievance. In the wake of her letter, a group of students that includes Anonymous has filed a federal complaint against Harvard with the U.S. Department of Education’s Office for Civil Rights. A Huffington Post article published on April 3 provides information about that lawsuit.
According to the complaint, different administrators in the residential colleges relayed conflicting information to survivors about their options for redress, as well as inconsistent information in possible changes to residential accommodations. Students who pursued disciplinary charges against their assailants also claim they were not provided written notification of the outcome of the adjudication process.
“For survivors seeking support,” said Our Harvard founder Kate Sim, “the first person they go to talk to determines a lot of their knowledge for the rights they have.”
One young woman of color was apparently told by a school official, ”It’s in your culture that men are gropey.”
Some of the details in the federal complaint are shocking. One young woman of color was apparently told by a school official, ”It’s in your culture that men are gropey,” and another saw her assailant become the building manager of the house in which both students lived, even though she had obtained a no contact order against him.
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When we read about responses such as these, the phrase “woefully inadequate” is woefully inadequate. It is no coincidence that the Harvard student activist group demanding policy and practice reform is called Our Harvard Can Do Better. Indeed. Do better we must.
Dear John Harvard, Here's what's wrong with your #sexualassault policy, signed Anon http://t.co/ne0kOVghP9 @GoodMenProject
— Tom Fiffer (@tomaplomb) April 10, 2014
Photo—Wikimedia Commons
The post Dear John Harvard: A Plea to Stop the ‘Second Rape’ That Follows Campus Sexual Assaults appeared first on The Good Men Project.