Dear John Harvard: A Plea to Stop the ‘Second Rape’ That Follows Campus Sexual Assaults

A Call to Stop by Wikimedia

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The letter itself is haunting, as Anonymous describes how Harvard’s outdated policy (circa 1993); an investigation and complaint process that, as a result of that policy, would likely result in her assailant being cleared; insensitive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.


Photo—Wikimedia Commons

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About Thomas G. Fiffer

Thomas G. Fiffer, Executive Editor at The Good Men Project, is a graduate of Yale and holds an M.A. in creative writing from the University of Illinois at Chicago. He posts regularly on his blog, Tom Aplomb, and serves as Editor of Westport's HamletHub, a local online news and information service. He is also a featured storyteller with MouseMuse Productions and is working on his first novel.

Comments

  1. So Harvard hasn’t abandoned presumption of innocence? Good.

    • The rape victim in the Steubenville case continues to be persecuted to this day. Despite the fact that the trial resulted in a “guilty” verdict. So, how about presumption of innocence for the victim?

      • Nothing wrong with presumption of innocence for the victim but should that come at the price of presuming the accused is guilty?

        Its a horrible situation but just flipping the coin won’t do any good.

  2. I’m not sure that affirmative consent negates presumption of innocence. Isn’t the accused still presumed innocent until the investigation—or trial—has been completed? I think the larger point here is that the mechanisms and support systems for coming forward and the post-incident responses offered to victims need to be retuned.

    • There can definitely be a lot more sympathy to anyone who brings an accusation forward, but ultimately this is the sticking point:

      The school was extremely reluctant to take any action against my assailant without a fair investigative process. In theory, this approach makes perfect sense. Everyone is innocent until proven guilty, and you cannot take severe action against a student—such as forcing him to move to a different House—without a formal investigation process. But in practice, this works against sexual assault survivors at Harvard. Our policy is so outdated and narrow in scope that it discourages survivors from entering an investigative process in the first place. And without such a process, Harvard will take very little action against the alleged perpetrator.

      If that’s how other disciplinary issues are treated, then there is no inconsistency here. It seems to be on the turn in other colleges, but I don’t think that’s a good thing. And I’ve seen people pushing for this in law as well – and this doesn’t seem like equality to me.

      Frankly, it seems like entitlement.

    • Isn’t the accused still presumed innocent until the investigation—or trial—has been completed?
      I think part of the worry is that actions would be taken against the accused before any investigation of trial has been completed. I know I’ve seen multiple instances where as soon as the claim was made (but before an investigation much less any sort of trial) the accused would face actions ranging from having their scholarships revoked, kicked off their sports team, and even expelled.

      If actions like that are a starting point what does that say about presumption of innocence?

      • I think it says more about our cultures inability to hold two seemingly contradictory thoughts at once (which is possible). i.e. that you can comfort and validate a survivors concerns, but at the same time not pass judgement on the accused. We live with a very “us vs. them” mentality and a fear of being wrong. If everyone can engage in sympathies for all involved, I think the system could work a lot better.

        • I can agree with that. The “us v them” keeps us divided and the fear of being wrong has built up into such a powerful force that people double down on their side in hopes that the other side is the one that’s wrong.

  3. I think these advocates are part of the “Good Intentions Paving Company”. I.E. the road to hell is paved with good intentions.

    I think the enthusiastic consent crowd is trying to push a solution that is searching for a problem to solve.

    I don’t have the link to hand, but I just recently read an article in which a feminist blogger who already violated her boyfriends trust by writing about hers and his sex life when he said he didn’t want it public decided to do an enthusiastic consent experiment with him and write about it on her blog.

    Since he wasn’t very much into more of their sex life made public, the roles were reversed with her initiating and him reluctant.

    She mentioned how noble-minded yet totally unworkable enthusiastic consent was as (in her zeal to kick things off) she had straddled and mounted him twice while he was trying to watch tv. Clearly a major no-no in affirmative consent mandates, yet hardly an instance of rape, or sexual assault. And certainly not something a person should be expelled from college for. Right?

    The practice of conflating normal healthy human behavior with criminal intent to harm is just ridiculous. It seems advocates of this are simply trying to (in a marketing sense) “grow their brand”.

    If they can conflate more and more activities (benign or cruel) with sexual assault, then they can grow their numbers and get more attention, discussion, advocacy and grants for their pet projects.

    It’s precisely how DV industry advocates switched from battering to domestic violence which enabled them to conflate a number of much less extreme activities with battering. Now we have “emotional abuse” when a single disparaging comment is made (even when it’s a one-off & clearly not part of a regular routine), and now “financial violence” for ~gasp~ refusing to buy something.

    When and where will the insanity stop?

  4. Oh and one more thing. Do we really want to call this a Second “rape”?

    I understand the desire to add an emotional charge to the situation and few things will do it like rape and I know that it must be horrible to go through that but does that really call for calling it rape?

  5. I find that anywhere is likely to have “brutes”. Sexual dominance to gain power over another human being through sexual predation happens in all strata of life, even *gasp* Harvard…..

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