This past week, there was yet another complaint about college sexual misconduct policy, this time at Harvard. After Harvard announced a new sexual misconduct policy, one that looks more or less like Princeton’s, a group of 28 Harvard Law School faculty submitted a statement decrying the changes as doing “more harm than good.”
To me, the most interesting part of the letter, whether or not you agree with its view that the new policy denies due process to the accused, is that the faculty is mistakenly placing the blame on Harvard administrators. In fact, it highlights the broader problem of a too narrow focus when discussing sexual misconduct policy. Too often we focus solely on policy at the university level, which, while important, should not be completely detached from a larger discussion of much needed state and national policy reforms in this area.
The Harvard Law School faculty should be taking up their concerns with the federal government by bringing the U.S. Department of Education's Office for Civil Rights' interpretation of Title IX before a federal court. Harvard’s changes are in accordance with new mandates from the OCR, just as Princeton’s are, including switching to a preponderance of evidence standard to punish the accused. Like Princeton and other colleges, Harvard faces the threat of losing all federal funding if it doesn’t make these mandated changes.
The professors say that the changes "are in no way required by Title IX law or regulation," but they fail to include that legally only the OCR has the right to interpret Title IX and that according to the OCR interpretation, Harvard has to make the proposed changes or risk losing federal funding. Granted, the statement acknowledges that “large amounts of federal funding may ultimately be at stake,” though the authors make it seem like losing this funding is a feasible alternative to following the OCR mandate. While technically Harvard’s endowment certainly could cover this huge loss of federal funding, it’s an extremely unpopular and unlikely solution, which the professors know Harvard and its peers are not inclined to do.
The Harvard letter is but one instance that shows that while we should be discussing and debating sexual misconduct policy on the campus level, this cannot be done without also considering policy on a larger scale. Our federal government dictated these new policies because colleges in general were not fairly handling these cases and neither was our criminal justice system. Given that they are felonies, cases of sexual assault should be largely handled by the criminal justice system if it was actually able to better handle sexual assault.
I’ve had a lot of different conversations about the University’s new policy. While there is much disagreement over the ideal policy, I’ve generally come across a consensus that ultimately society needs to change, adapt and fix how the criminal justice system handles sexual assault more broadly.
Personally, I believe that the two largest problems in prosecuting sexual crimes are the treatment of victims during evidence gathering and misconceptions by many adults, particularly older adults, regarding the type of sexual assault and rape that tends to occur on college campuses. The first issue is fixable if the motivation is there. The second is more complex, as I think there is often a generational gap to understanding rape.
From my experiences talking with family friends, I gather that a lot of adults imagine rape as a crime involving coercion of the victim by a stranger with a gun or knife and resulting in physical bruises, cuts or threats of such harm. And those of us in college realize that there are so many other stories of sexual assault that are just as horrific and need justice too. This is why juries, often made up of people in older generations, tend not to convict in these types of cases, like in the Dartmouth trial last year.
While one option is to wait until younger generations make up the majority of juries, we should not have to wait that long for justice. Adopting clearer legal definitions of consent and therefore rape as no affirmative consent or coerced consent is the foundation to fairer prosecutions that hopefully will lead juries, no matter the age composition, to make the right decisions as society shifts its understanding of consent and rape. We’ve moved beyond an understanding of consent as “no means no” and are thankfully beginning to understand why, due to the prescriptive gender norms we are socialized with, we need an affirmative “yes means yes” consent standard. The California affirmative consent bill and the proposed New York ones are great starts to institutionalizing this progressive understanding of consent.
Granted, real change, federally, statewide and then by universities is much more complex than what can be stated in an opinion column and is easier said than done. There are issues, like defining incapacity to consent, which will still complicate the situation. Nonetheless, I think it's imperative to make sure that any conversation about sexual assault policy considers discussion both on the new university policies and on the much needed short- and long-term changes required within our criminal justice system.
Marni Morse is a sophomore from Washington, D.C. She can be reached at mlmorse@princeton.edu.
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