Whose Responsibility Is It? The Debate Over Definitions

Although the University's search for a workable definition of rape has narrowed, debate continues over the implications of the recommendations made by different groups.

The Date Rape Task Force report proposed a relatively strict definition of rape as any sex occurring without the expressed consent of the victim. In other words, both parties involved must openly consent for the act to be legal.

The Undergraduate Council, in discussions that followed the release of the Task Force report, defined rape instead as sex occurring despite the expressed unwillingness of the victim. The Council's recommendation held that a victim must express overt dissent, either verbally or physically, for the act to be considered rape.

While the Council's definition follows state law more closely, advocates of the Task Force report say that Harvard should set higher standards of behavior.

"The University can enforce a higher standard of conduct than the state," says Radcliffe Union of Students (RUS) Co-President Minna M. Jarvenpaa, adding, "But people must be educated about the issue."

RUS threw its support behind the Task Force definition, saying the stricter standards would shift the focus of Ad Board investigations from the victim to the perpetrator.

But backers of the council definition say such standards would threaten the rights of the accused.

Alan H. Erbsen '94, assistant director for University affairs of the Civil Liberties Union of Harvard, says the Task Force definition would not hold up under legal scrutiny.

"The fact that we're a college environment shouldn't change anything," Erbsen says. "Harvard has responsibilities to the victim and the accused."

According to Professor of Law Alan M. Dershowitz, the Task Force definition also undercuts the idea that "no means no."

"It's a political, knee-jerk response to the radical politics of today and makes very little sense," says Dershowitz, who is currently representing boxer Mike Tyson in his appeal of a rape conviction earlier this year.

While proponents of the Task Force definition said the college environment justified the narrower definition, Dershowitz says the concept of expressed consent has dangerous implications.

Such a standard would make most sexual intercourse between married couples rape and would constitute a "dangerous step backwards in a community where people are expected to be articulate [about sexual relations]," he says.

But some students say that such arguments neglect the fact that much of what occurs during sexual relations is unspoken.

"Sometimes, a victim experiences so much fear that she or he cannot verbalize dissent, and the U.C. definition does not account for this," says Eliza B. Clarke '92-'93, co-director of Response, the rape and sexual harassment peer counseling group.

Clark says that date rape is probably the most underreported crime on campus--in part because many students are unsure of whether such incidents constitute rape.

Qualified to Judge?

And while debate on campus continues over nuances of definition, legal experts question whether students and administrators are even qualified to be judging such cases.

Professor of Law Philip B. Heymann, who teaches criminal law, warns against straying too far from accepted legal standards.

"You have to be careful using legal terms if you're not following state law," he says.

And some experts say the discussion over legal definitions should never have taken place on campus in the first place.

"When it comes to making judgments on criminal acts, it's a matter for the public authorities and the school should not interject itself," says National Organization of Women staffer Twiss Butler.

Butler says that while the College should have a clear procedural policy, the Ad Board should not determine substantive matters like definitions.

"It's not a matter for dean amateurs to deal with," Butler says. "There is great reason to question the feeling of college administrators that they are qualified to be judges."

Butler suggests that the discussion is another way for administrators to avoid "the real issue"--that of women's position on campus and of the power differential between male and female students.

"Clearly, Harvard students should understand that no means no," Butler says.

D. Richard de Silva contributed to the reporting of this article.