Wednesday, July 30, 2014

Harvard student council VP: Harvard needs its own definition of consent, but doesn't seem to know what that should be

Harvard Undergraduate Council's vice president is unhappy with the school's newly revised sexual assault policy -- a policy that, according to Prof. KC Johnson, tosses the accused student's due process rights onto a scrapheap of indifference. Stripping college men of any meaningful opportunity to defend themselves isn't good enough for anti-rape advocates. The student council vice president wants Harvard to implement an "affirmative consent" standard, even though the VP doesn't seem able to say what that standard should be.

Mia Karvonides, Harvard’s Title IX officer, said that Harvard's new policies do not include an affirmative consent policy because “there is no standard definition of affirmative consent.” She added: “The closest any college comes to a defined affirmative-consent approach is Antioch College. Under their policy, consent is given step by step at every point of engagement during an intimate encounter. You must verbally ask and verbally get an answer for every point of engagement. ‘May I kiss you? May I undo your blouse?’ Etc.”

Karvonides's explanation is not good enough for the student counsel VP. “There is no perfect, one accepted standard," the VP clucked. The VP wants "a Harvard definition that is most suitable to our campus."

Read it again, I didn't make it up. The notion that a clear and unambiguous word requires a "Harvard definition that is most suitable to our campus" is downright other-worldly, as absurd as it is chilling. There is one accepted definition of consent -- consent is agreement or permission to do something -- and either it's present or it isn't whether Harvard says so or not. It means the same thing at Harvard Yard as it means in Philadelphia and Berkeley and everywhere else.

Does Harvard need its own special definition of "snow" suitable to its campus? How about "dog"? Or "water"? Yet for something as critical as "consent," they need to reinvent the wheel even though they have no idea what that definition should be.

The "affirmative consent" advocates are looking for some measure of clarity in parties' interactions they think will insure that sexual interactions are not subject to misinterpretation. Except they don't know how to define what will achieve that clarity. The Antioch College example is notorious for its absurdity.

So what's the answer? What will achieve the desired clarity? In civil law, certain types of contracts require a writing, most notably: contracts for the sale of goods of $500 or more; contracts for the sale or lease of real property; contracts to answer for the debt of another; and contracts that can't be performed within one year (not applicable in Pennsylvania). But even the most ardent supporters of affirmative consent have not gone so far as to suggest contracts in writing for sex, and most have backed away from the notion that consent has to be verbal, because they know that human experience furnishes a seemingly infinite variety of ways to manifest agreement to sexual intimacy and that matters of the heart can't be subject to the rules applicable to bartering for commodities in the marketplace.

What they ought to focus on is education -- about consent, the role of alcohol in sexual encounters, and the regret asymmetry -- not more draconian rules intended to expel more young men.

Aside from a twisted few, these advocates' hearts are in the right place. Nobody likes rapists, and it's easy to jump on the bandwagon to condemn this loathsome offense. What they don't seem to realize is that every time they lobby for some additional rule to make it easier to nab rapists, they make it easier to punish innocent students, too. We urge them to keep up their anti-rape advocacy -- bullhorns and all -- but for every suggestion to nab more rapists, they also need to consider in a meaningful way its effect on the wrongly accused.