Why Our Date Rape Definition Makes Sense

In a letter published October 26, Lydia Alix Fillingham criticized the Civil Liberty Union of Harvard's definition of rape as sex that occurs "despite the expressed dissent and/or in the presence of threats, intimidation, coercion or lack of an ability to dissent."

She argues that our definition would force investigations of rape to focus on the actions of the victim instead of the accused asserting that "[n]o other crime focuses its investigation on the actions and intentions of the victim."

Fillingham's concerns are unfounded and fail to recognize that an accused rapist has a legitimate right to be presumed innocent until proven guilty.

The point behind CLUH's definition is simple: We believe that no person should be held criminally liable for action that he or she had no reason to know was criminal in nature.

Since sex between adults is only illegal (or should only be illegal) in cases where one party does not want it to occur (or is incapable of making a decision), we believe that a person is only criminally liable for sexual conduct if that person had reason to know that the other party objected to it or was unable to offer an objection.

Fillingham's allegation that our definition places a more severe focus on the alleged victim in the course of a rape investigation lacks foundation.

No matter what definition of rape exists, a defendant is innocent until proven guilty. It is always the prosecution's burden to show that a crime occurred and that the defendant committed it.

Individuals who claim to have been raped will always have to explain their actions, proving (depending on the definition) that they either said "no" when asked for consent, said "no" to an unspoken advance or that the other party failed to ask for consent. CLUH's definition and the Date Rape Task Force's definition therefore demand an equally intense examination of what an individual who claims to have been raped said, did and heard.

Practical justification for CLUH's definition emerges from an analysis of the four basic conditions under which sex can occur (we are assuming cases where no intimidation, coercion, etc. occurs, as such situations constitute rape under both our definition and that of the Task Force): 1. Neither party asks for or expresses consent, and neither dissents. 2. At least one party asks for consent and does not receive an answer. 3. Both parties ask for and receive consent. 4. At least one party dissents.

Under any definition, case 4 is rape and case 3 is not. However, problems arise in cases 1 and 2.

In case 1, the Task Force definition leads to the bizarre conclusion that both parties are rapists, as each proceeded to engage in sexual relations without the consent of the other.

Fillingham attempts to skirt this piece of illogic by arguing that sex is always initiated by one party, who should ask for consent. But if this is the case, then due process issues emerge as defendants would have no reason to know that what they were doing was wrong.

Furthermore, the burden of proof would still be on the accuser to prove that the accused actually did initiate sexual conduct. Thus the Task Force definition also places the burden of action and proof on the accuser, but is far less protective of the defendant than CLUH's definition.

Case 2 is more difficult. The Task Force would say that rape occurred; we would not.

Sex that occurs despite the lack of an answer to a request for consent does not automatically indicate that rape has occurred. There is no reason for the person who asked for consent to believe that further sexual contact is not desired by the other person.

Silence (again assuming no intimidation, etc.) is not equivalent to a "no," and we feel that punishing someone for engaging in behavior that was not objected to, however inappropriate that behavior may have been, is a violation of due process for the reasons outlined above.

Our definition admittedly places a burden of action on an individual to say "no" or "stop," but this is a necessary burden given the serious implications of a rape charge.

We would also like to note that throughout her letter, Fillingham consistently and repetitively refers to the victim of any rape as being a woman and the perpetrator of any rape as being a man.

Although the vast majority of sex crimes are perpetuated by men against women, debate on the subject should be gender- and sexual orientation-neutral and should focus on the nature of the criminal liability.

Rape is a legal term, even when used in a college environment, and its definition must reflect that fact. CLUH's definition in no way increases the burden of proof on accusers and clearly better protects the rights of the accused.

It is fair to ask that someone who does not want to engage in sex issue a verbal or physical indication of their wishes, and that nobody be punished for an action that was never objected to when the opportunity object existed. Allan H. Erbsen '94   Jol A. Silversmith '94   For the CLUH Executive Board