‘Enthusiastic Consent’ at Harvard

By October 18, 2011

On Friday, The Harvard Crimson ran an article on the university’s decision to postpone seeking student input into the reform of its sexual misconduct policies. Based on some of those students’ statements to the paper, Harvard should reconsider whether to take their input seriously.

Samantha Meier ’12, one of the student representatives appointed to the policy review committee, told the Crimson that

Under most legal definitions, forced sexual intercourse can be considered rape or sexual assault only when the victim said "no" or was incapable of doing so due to the influence of drugs or alcohol, according to Meier.

Meier said that she and other students on the committee hoped to push the University instead toward an "enthusiastic consent" model, in which an incident can be called rape in the absence of affirmative agreement.

"The only people who lose out in this model are the rapists," said Lila S. Schreiber ’12, who had also intended to serve on the committee.

(Emphases added.)

Jaclyn Friedman, the author widely credited with coining the term "enthusiastic consent," puts it this way on her website: "What if, instead of just the absence of ‘no,’ an enthusiastic ‘yes’ was required as a standard for sexual consent?"

While many commentators seem to view the idea of enthusiastic consent as a tool for cultural, rather than legal, reform, these Harvard students actually want it to be part of the university’s sexual misconduct policy. What’s more, they unblinkingly label as a "rapist" anyone who has failed to obtain the "enthusiastic" consent of his or her partner. This presents a host of readily apparent problems. To name two: Who determines whether consent is "enthusiastic" enough? How is such a determination made? (For the students’ next project, perhaps they could form a committee to design prisons large enough to accommodate the country’s entire married population.)

At a time when the federal government is requiring universities to lower the evidentiary standard in sexual assault cases to a "preponderance of the evidence" (more likely than not) standard, universities need to be shoring up other due process protections—not further eroding them. "Rape" and "sexual assault" should mean the same things at Harvard that they do throughout the rest of Massachusetts—their definitions should be based in the law, not in a politicized view of gender relations.

Can you imagine a university judicial system in which students face discipline for, as former Dean of Harvard College Harry Lewis puts it, having "sex with consenting but unenthusiastic partners?" The "preponderance" standard—the lowest evidentiary standard used in our judicial system—already impermissibly threatens campus due process rights; requiring hearing panels to determine the level of enthusiasm of participants in a sexual encounter would further undermine the fairness of the system, to put it mildly. Having already delayed the addition of students to the policy reform committee, Harvard should reconsider—in light of the outrageous public statements of the students it had decided to appoint to the committee—whether to take their input seriously at all.

Schools: Harvard University